As an experienced safety consultant, I have investigated many incidents in my career in which a worker “falls through an opening.” The majority of these incidents have occurred at construction sites and most resulted in serious injury or death.
Many workers’ compensation claims are not subrogated due to a lack of critical investigative information and there is often confusion regarding the duties and responsibilities of the various parties on a construction job site. The purpose of subrogation is that the negligent party or parties (other than the employer) that caused a worker’s injury should be held to some level of responsibility. Thorough investigation by knowledgeable professionals is a valuable tool in determining whether subrogation potential exists.
In the early 1980’s, I worked as a Safety and Loss Prevention Consultant for the Third Party Administrator (TPA). I serviced a local Roofing and Sheet Contractor’s Association Workers Compensation Self-insurance Fund. I was called to investigate a fall accident at a roofing member job-site that still bothers me to this day. The roofing company was starting a new job and when the crew arrived at the job site they undertook to perform the usual start-up operations i.e. unload and set up for the work ahead. The site was a new building under construction. The supervisor sent an inexperienced 18-year-old new employee up a ladder onto the roof with the instructions to start to clean “loose debris” from the roof and pitch the debris into a dumpster set up on the ground.
The new employee was considered a general laborer until he gained experience in more specialized roofing tasks. As he walked the roof picking up debris, he saw a piece of plywood laying on the roof top. He reached down and picked up the plywood and presumably took a step. His fellow employees heard a yell and a thud. The new employee fell 25 feet through a hole underneath the plywood and was seriously injured. He suffered multiple injuries including broken bones and a concussion. The young man’s head injury was so severe that he ended up with an IQ of 40. To my knowledge, the family never hired an attorney and settled for the worker’s compensation benefits.
My subsequent investigation revealed that the hole beneath the plywood was one of several on the roof where skylights were to be installed. There was no marking on the plywood to warn anyone that a hole was beneath it and it was not secured or fastened in place. The employer was criticized for sending an inexperienced worker up on the roof without having a supervisor inspect the roof top first. The roofing company knew in advance that they were to install curbs around skylight holes and provide roofing up to the curbs, however, no one on the ground that day thought open holes would have been left without being covered and without a warning. I recall one of the workers saying, “That hole was a booby trap”.
While OSHA construction standards were not as detailed then as today regarding the protection of openings, the standards for construction did require securely covering all openings and marking the covers with “Danger Hole”.
For more information on applicable requirements for proper safeguarding of holes on construction job-sites consult OSHA CFR 29 1926.501 (B)(4).
In this case, the Roofing and Sheet Metal Contractors Association Self-Insurance Fund paid the Workers’ Compensation claim. Today, the TPA would have most likely pursued legal action against the firm that cut the hole and covered it improperly.
The construction crew that cut the hole in the roof and covered the hole with an unmarked unsecured piece of plywood for the skylight openings created the hazard that caused this incident and should have been held responsible for the loss. Despite what the employer did wrong in this case, the primary cause of this tragic incident was a hole concealed with loose unmarked plywood that should have been properly marked and secured by the creating party prior to the roofing contractors start of the job.
J. Steven Hunt, CPCU, ARM, is the senior safety consultant at Warren. Steve, who specializes in premises liability incidents, construction falls and safety management programs, has achieved the designation of Associate Risk Management and Chartered Property and Liability Underwriter from Insurance Institute of America, Chicago, IL. Steve has investigated more than 1,000 accidents in his more than 38-year career, including 35 cases involving fatalities. He holds a Bachelor of Science in Administrative Management with a Minor in Occupational Safety and Health from Clemson University.