A Commitment to Safety

Spence Law Firm Natural GasOn August 20th 2010, the Casper Star Tribune reported that for 2009, workplace fatalities in Wyoming had reached a record low. In 2008, Wyoming had 33 workplace fatalities and, on a per capita basis, the highest workplace fatality rate in the country. In 2009, the number of workplace fatalities dropped to 19, the lowest number since 1992 when the Census of Fatal Occupational Injuries began keeping records. As a result, Wyoming’s workplace fatality rate is now the third worst in the nation.

The new statistics are mildly encouraging because historically, Wyoming’s workplace safety record has been atrocious. Our current status of third worst in the nation still leaves significant room for much needed improvement. In 2003, 2004, 2005, 2007, and 2008, Wyoming had the sad distinction of being the State with the nation’s highest workplace fatality rate, a rate that was at least three and sometimes more than four times the national average. To make matters worse, two of the most dangerous industries, logging and commercial fishing, are barely present in Wyoming.

Year Fatalities Per Capita/ Ntl Rank Ntl Rate Fatalities/100,000

2003 37 13.9 Worst 4.0/100,000
2004 43 15.5 Worst 4.1/100,000
2005 46 16.8 Worst 4.0/100,000
2006 36 13.1 2nd Worst* 4.0/100,000
2007 48 17.1 Worst 3.8/100,000
2008 33 11.6 Worst 3.7/100,000
2009 19 NA 3rd Worst** 3.3/100,000

*Alaska had the highest workplace fatality rate in 2006.
** Montana had the highest workplace fatality rate in 2009. North Dakota was second.

While any headline titled ‘Workplace Deaths Hit Record Low’ is welcome news, the article, based on information from the Wyoming Department of Employment, notes that total employment in Wyoming dropped by 4% or 11,800 jobs. Wyoming’s current unemployment rate is approximately 6.5%. Three years ago, Wyoming’s unemployment rate was 2.5%. Predictably, with fewer people working, there should be fewer workplace injuries and fatalities. In August 2010, the Research & Planning division of the Wyoming Department of Employment published an article titled ‘Employment Change and Impacts on Workplace Fatalities in Wyoming’. Two detailed statistical analyses determined that for every 1% increase in employment, the number of workplace fatalities increased by 2.4 to 2.7. According to the article’s authors, “[t]he hypothesis is that greater exposure (number of people employed, total hours worked, hours worked per person, etc.) is associated with the number of fatalities.”

Other statistics further illuminate how Wyoming may have achieved this record low. According to the Baker Hughes rotary rig count, in the last three years the amount of oil and gas drilling in Wyoming has declined by almost 50%. In September 2007, Wyoming averaged 78 rotary rigs and North Dakota averaged 43. By September 2010, Wyoming averaged 43 rotary rigs while North Dakota had tripled to an average of 131 rigs. This drastically increased activity could partially explain how North Dakota leapt from having the seventh worst workplace fatality rate in 2007 to the second worst rate in 2009.

In recent years, Wyoming’s workplace safety record has appropriately been the focus of much attention. Following the 2009 legislative session, Governor Freudenthal announced the formation of a workplace safety task force. Former District Judge Gary Hartman, serving as a special adviser to the Governor, headed what was later named the Wyoming Worker Fatality Prevention Task Force. The task force met several times in 2009 and formed sub-committees focusing on the oil and gas industry, construction, transportation, and data. Ultimately, the task force made three key recommendations prior to the 2010 budget session.

The first recommendation, which later became House Bill 93, would have increased employer penalties for serious and willful OSHA violations. The second recommendation, which later became Senate File 64, would have increased the fine for failing to wear a seatbelt from $25 to $75 while keeping the failure to wear a seatbelt as a secondary offense. The third recommendation was for the State to hire an epidemiologist who could create a centralized database studying workplace fatalities. A centralized figure was important because many different organizations including MSHA, OSHA, the Wyoming Highway Patrol and County Sheriff’s Departments can have jurisdiction over and investigate workplace injuries and fatalities, leaving information relating to worker deaths scattered and isolated.

On August 3, 2010, the Governor’s office announced that Dr. Timothy Ryan had been named the State’s new Occupational Epidemiologist. Dr. Ryan was tasked with examining “occupational safety issues in Wyoming, including data, injury prevention and public policy options.” According to the press release, “[t]he position and a centralized database of workplace fatality and injury information will be paid for through the Industrial Accident Fund. Gary Child, director of the Wyoming Department of Employment, said the epidemiologist and database are financed through employer premiums to the workers’ compensation program, and they fit within the statutory requirements of addressing worker safety issues.” The epidemiologist position and database were modeled on Alaska’s successful efforts, in coordination with NIOSH (The National Institute for Occupational Safety and Health), to protect its workforce and dramatically lower the number of workplace fatalities.

House Bill 93 – OSHA Penalties, was one of the task force’s two legislative recommendations. Twelve Representatives and four Senators sponsored the bill and its key provisions would have increased OSHA penalties for three different categories of violations. For willful and knowing violations of the Wyoming Occupational Health and Safety Act, penalties would increase from between $5,000-$70,000 to between $8,000 and $120,000. If the willful and knowing violation resulted in a fatality, the penalty amount would increase to not less than $50,000, nor more than $250,000. For serious violations of the Act, the penalty would increase from a maximum of $7,000 to a new maximum of $12,000. If the serious violation resulted in a fatality, the penalty amount would increase to not less than $20,000, nor more than $50,000. For violations “determined not be of a serious nature”, the civil penalty similarly increased from a maximum of $7,000 to a new maximum of $12,000 for each offense. If this category of violation resulted in a fatality, the penalty amount would increase to not less than $20,000 nor more than $50,000.

The bill provided a golden opportunity for the legislature to emphasize its commitment to the safety of Wyoming workers. House Bill 93 did not originate in Wyoming and is essentially identical to certain provisions found in proposed federal legislation – H.R. 2067 – The Protecting America’s Workers Act. H.R. 2067, if enacted, will amend and update the federal Occupational Health and Safety Act of 1989. Because Wyoming OSHA acts in accordance with the federal OSHA statutes, if the federal legislation passes, it will apply in Wyoming. Thus, the Wyoming legislature had the chance to make a stronger commitment to workplace safety than what was currently required under federal law. House Bill 93 passed in the State House of Representatives, squeaked through the Senate Minerals, Business and Economic Development Committee in a 3 to 2 vote, and, on third and final reading in the Senate, the last step before it would have gone to Governor Freudenthal’s desk for signing, failed in a 15 to 15 vote.

The second legislative recommendation from the task force was Senate File 64 – Safety belt violations. Four Senators and five Representatives sponsored the bill, which would have increased a driver’s fine for failing to wear a seatbelt from $25 to $75. The bill would have kept seatbelt violations as a secondary offense. A secondary offense means for a seatbelt violation to occur, the offending driver must be pulled over for another offense; however, if not wearing a seatbelt, a driver can be ticketed for the seatbelt offense too. A driver cannot be pulled over for failing to use a seatbelt if that is the driver’s only offense. The task force’s transportation sub-committee considered and rejected raising seatbelt violations to primary offense status.

During the task force meetings, it became apparent that transportation accidents accounted for a large number of Wyoming’s workplace fatalities. From 2003 to 2007, 136 of the 210 workplace fatalities were categorized as transportation incidents. In many of those 136 fatalities, the driver and/or passengers were not wearing seatbelts. In 2009, 11 of the 19 workplace fatalities were categorized as transportation incidents. Senate File 64 advocates hoped that a higher fine would help change Wyoming’s driving culture to increase seatbelt usage.

Senate File 64 passed the Wyoming Senate by a 23 to 7 margin and easily survived its first two readings in the House. However, once Representatives learned about the Senate defeating the OSHA penalties bill, several legislators who are commendably committed to improving workplace safety, discussed their frustration with the task force, the Senate, and the quality of the proposed legislation, and voted against the seatbelt bill by a 41 to 17 margin. By March 4, 2010, each of the Task Force’s legislative recommendations had been killed, and understandably upset legislators were openly questioning whether members of the task force had publicly supported the bills, while privately working against them. The task force disbanded after a final meeting on April 19th, 2010.

Between our State’s woeful safety record and the Task Force’s backing, it was shocking that neither recommendation became law. However, it is debatable how much of an impact either bill might have had. The OSHA penalties bill would only have applied after a willful, serious or non-serious violation, or once a workplace fatality had already occurred. Whether the potential threat of increased fines would have led to better safety practices and actually prevented injuries is unknown. Similarly, it is difficult to imagine a person who would choose not to wear a seatbelt if the fine was $25, suddenly deciding to wear a seatbelt because the fine had tripled. The effectiveness of Senate File 64 becomes even more questionable since there would have to be a separate, primary violation for the increased seatbelt fine to apply.

Each and every workplace fatality devastates families and destroys lives. In 2009, the legislature admirably and significantly improved the Workers’ Compensation death benefits for a deceased worker’s spouse and children. In addition to the unimaginable grief individual families privately experience, each compensable workplace fatality can cost the Workers’ Compensation fund hundreds of thousands of dollars. Our State’s leaders and employers could accomplish multiple goals by affirming their commitment to safety. The benefits of lowering our workplace fatality rate include saving lives, minimizing the pain and anguish experienced by the families of deceased workers, and, annually conserving millions of dollars in Workers’ Compensation claims.

While the appointment of an epidemiologist is a promising step in the right direction, we should identify and then strive to achieve ambitious goals. I would challenge ourselves to the following: Wyoming’s workplace fatality rate should equal or be less than the national average within five years.

W.S. § 27-11-102(a)(i-vi) outlines key policy declarations for the Wyoming Occupational Health and Safety Act. Policy specifics include, but are not limited to, preventing accidents and occupational diseases, recognizing that following rules and regulations are the responsibility of both employers and employees, helping and assisting both employers and employees in accident and occupational disease prevention through educational means, and furnishing consultant services for developing safety programs.

The Wyoming Constitution clearly mandates where workplace safety program funding comes from. Article 10 § 4(c) discusses the accumulation and maintenance of the Workers’ Compensation fund for extrahazardous employments. It states, “[m]onies in the fund shall be expended only for compensation authorized by this section, for administration and management of the Worker’s Compensation Act, debt service related to the fund and for workplace safety programs conducted by the state as authorized by law.” In the last couple of years, various legislative committees and the Wyoming House and Senate have debated, and decided against enacting proposed legislation that may have increased liability, penalties or fines for assorted infractions. Each of these abandoned approaches, as well as the improving of Workers’ Compensation benefits, deals with our workplace safety problem after an injury has occurred. A new approach must include identifying problems and preventing injuries before they occur.

The Department of Employment’s Workers’ Compensation Division has approximately ten times as many employees as Wyoming OSHA. As presently situated, ten times the personnel are devoted to dealing with the effects of workplace injuries as there are to preventing them. Wyoming OSHA must be provided the resources it needs to achieve the goals articulated in the OSHA’s Declaration of Policy. Clearly, with a safety record dating to 2003, of worst, worst, worst, second worst, worst, worst, and now third worst in the country, more resources should be devoted to the State agency tasked with preventing workplace accidents.

One would assume that Wyoming’s citizen legislators serve in order to improve both Wyoming government and the lives of their constituents. We endow our fellow citizens, in their roles as legislators, with a tremendous amount of responsibility, responsibility that entails a great deal of hard work and personal sacrifice. But, there can be no nobler calling of a citizen legislator than to enact laws that designed to protect and save the lives of fellow citizens. It is crucial that they do.

*Mark Aronowitz is the director of the public interest law firm Lawyers and Advocates for Wyoming (L.A.W.), and he is developing the Spence Association for Employee Rights (SAFER). Mark spends much of the year fighting for workers rights across the state of Wyoming, both at the grass roots and the legislative levels. For more information about Mark’s work with SAFER, Read more about SAFER here

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