No doubt part of your job as a safety manager is to avoid lost-time injuries. But the object is to do that before an injury occurs. This company landed in court because of what a safety manager is alleged to have done after an employee was injured.
On Aug. 6, 2012, Lonnie Harper was working at Boise Paper Mill in Louisiana when a lime kiln grinder shut down because it was clogged. Harper found material that was too large to pass through the grinder had caused the clog.
Boise had provided a pry bar so employees could dislodge material in the grinder.
Harper used the bar to dislodge the large material when some of it hit the bar and then struck him in the head. He suffered a serious head and brain injury and was air-lifted to a hospital for treatment.
Boise sent its safety director, David Ludolph, to the hospital. Harper says Ludolph “assumed manipulative control over the care being rendered” to Harper. According to court documents, Ludolph had the company doctor release Harper “to work in an effort to … masquerade around the fact that this catastrophic event resulted in lost man hours.” Acting on Boise’s behalf, Ludolph demanded that Harper return to work, even though he was in critical condition, because Boise didn’t want to record a lost time accident.
Harper sued Boise for:
intentional tort associated with the removal of safeguards that resulted in the injuries he suffered, and
intentional infliction of emotional distress by Ludolph.
A federal court granted Boise’s request that both parts of the lawsuit be thrown out. Harper appealed to the U.S. Fifth Circuit Court.
What makes something ‘intentional?’
The circuit court noted that under Louisiana state law, workers’ compensation is usually the exclusive remedy when an employee is injured at work. There is an exception when a worker is injured as a result of an employer’s intentional act.
Intentional means the company:
consciously desired to cause injury, or
knew an injury was substantially certain to follow.
Harper alleged Boise knew or should have known that an injury was so imminent that its neglect became an intentional risk to every operator associated with the lime kiln.
Under Louisiana law, “should have known” isn’t good enough. Harper needed to show the company actually knew that its actions would cause injuries.
So the circuit court upheld the decision of the lower court to throw out Harper’s intentional tort claim.
To show, under Louisiana law, that an employer inflicted intentional emotional distress, an employee must prove three things:
The conduct of the company was extreme and outrageous
The emotional distress suffered by the worker was severe, and
The company desired to inflict severe emotional distress or knew that severe emotional distress would be certain or substantially certain to result from its conduct.
In previous rulings, the Louisiana Supreme Court said to show intentional infliction of distress in a workplace, there must be a pattern of deliberate, repeated harassment over a period of time.
Harper alleged that Ludolph, the safety manager, “literally demanded that he return to work while he was in critical condition because of his head injury for no other purpose than to pretend for industrial purposes that there was no lost-time accident.” Harper said this amounted to emotional distress because Ludolph valued “corporate profits over patient safety.”
The circuit court noted that Harper’s complaint didn’t allege a pattern of harassment. It only mentioned one incident.
Also, Harper’s complaint said the sole purpose of trying to get him released from the hospital was to avoid a lost-time accident record. If that was the sole purpose, Harper couldn’t also claim that this was being done to intentionally inflict emotional distress.
So the circuit court also threw out the second portion of Harper’s lawsuit.
Ultimately, the courts made no ruling on whether Boise, as alleged, tried to get around recording a lost-time injury on its OSHA forms by getting a worker with a serious head injury to be released so he could return to work. The courts only said there was no intentional action on Boise’s part to either cause physical injury or emotional distress to its workers.
There are reasons for a safety manager to follow an injured employee to the hospital, such as to make sure the person gets proper medical care. You’d certainly hope the situation wasn’t as alleged by Harper in this lawsuit.
