Oregon's Safety Trail

GARY STONEWALL, SAFETY DIRECTOR for R&H Construction in Portland, Ore., says that back in the late 1980s and early 1990s, home builders really didn't have much of a choice when it came to workers' compensation insurance.

“You just paid the high prices,” says Stonewall, who notes that in many ways, the state faced the worst of both worlds.

At the time, Oregon businesses paid the sixth most expensive rates nationally for workers' comp insurance. And Oregon workers received some of the lowest pay-outs in the nation on claims—benefits for permanent disabilities were in the bottom 10 percent nationally.

To make matters worse for builders, construction accident rates in the state were at 16.1 incidents per 100 workers, second only to manufacturing's 16.8 incidents per 100 workers (which was largely a result of the high accident rate in the logging industry). The credit crunch and general recession were also crippling businesses back then, so something had to give.

Oregon OSHA Inspections, 2003

It took this crisis for people to change, which led to a series of reforms that freed up state funds to put more Oregon OSHA (OR-OSHA) personnel in the field for enforcement and consultations; to support early back-to-work programs for injured workers; and to create an Ombudsman for Injured Workers, an eight-person office that helps injured workers navigate the workers' comp system.

The result: Workers' comp premiums in Oregon dropped nearly 47 percent over 15 years, and the state now has some of the lowest premiums in the nation. Oregon ranked No. 42 last year, with No. 1 California paying the highest prices. Construction accidents also declined 44.7 percent in Oregon from 1989 to 2001 and hit their lowest points in the last two recorded years, 2002 and 2003.

“When there's an injury, the sooner we can start processing the paperwork, the better,” says Bob Harris, loss control consultant for the HBA of Marion and Polk counties in Oregon and an injured worker himself. Harris, who helps home builders work through injury claims, was almost buried alive 35 years ago in a 12-foot ditch. He damaged his left hip and leg in the accident and went through hip replacement surgery.

“Builders need to know that there are funds available to bring a worker back to work, to buy equipment if necessary, and help bring the worker back to work even while he's recovering from the injury,” Harris says.

Oregon OSHA's consultation program has really made a world of difference in changing the public's perception of OR-OSHA—it's a service many home builders value.

Carla Merrell, co-owner of Laredo Construction, a home builder in Sisters, Ore., says her company initially went through the state's consultation program about five years ago after the company was fined, but she saw the crew's safety focus slipping. So she brought in OR-OSHA occupational safety consultant Kevin Kilroy about a year ago to sharpen the company's safety program.

Kilroy says that when he visits a company he holds an initial meeting for about 30 minutes to go over some general information. The meeting starts with a discussion of fall protection and moves on to issues such as safe access, keeping floors level, and clean housekeeping. Kilroy says he sticks pretty closely to teaching home builders seven core elements to a safety program:

Management commitment. Top management has to take the time to hold safety meetings, buy the right equipment, and generally lead by example.

Training workers. Teach workers specific ways to do their work safely—for example, the correct way to use a nail gun.

Accountability. Once the right equipment is in the field, both management and workers have to follow through. If management says it will hold weekly safety meetings, the workers should hold them to it. If the workers agree to wear safety gear, they should know that management will say something if they are not using proper equipment.

Employee involvement. This doesn't mean having the crew wear gloves and glasses. The idea is to really ask the workers what they see on the jobsite. Ask them for suggestions on how the work can be done better.

Hazard identification. Supers should be checking weekly, if not daily, for safety hazards.

Accident investigation. Analyze the root causes of an accident. Find out which systems went wrong.

Periodic review. Encourage an annual review of the company's safety practices. Some companies do this quarterly or monthly.

“Kevin threw out the myth of OR-OSHA not living in the real world,” says Merrell. “My guys don't look at OR-OSHA as a bunch of weenies anymore,” she says, adding, “Kevin … really understands that the guys are working hard in snow and 110-degree weather.”

Field consultations such as the ones Kilroy runs with home builders and other businesses throughout Oregon help allay the OSHA-related fears of owners and workers.

“Most of the guys don't understand that OR-OSHA has all these services,” says Gary Stonewall, safety director for R&H Construction in Portland, Ore. “They think of an OR-OSHA officer as a cop who will write a ticket, but the consultants can't write a citation. It's not their job.”

The state's prolonged funding of the “Employer-at-Injury” and “Preferred Worker'' programs for injured workers has helped the state government prove to the public that a social safety net exists for injured workers. The two programs also bring premiums down, since the state reimburses an injured worker's wages when he or she goes back to work.

Under the Employer-at-Injury program, after the worker is injured, he can come back to the jobsite on light-work duty. During this initial period, the employer would typically pay the worker's full salary and receive 50 percent of the salary back from the state. After three months, if the worker can document that there is some permanent disability and can show that he can't go back to his regular job, he is eligible for the Preferred Worker program. Under this program, the worker's wages are subsidized by the state by 50 percent for up to six months; the employer is also exempt from workers' comp premiums for up to three years.

Home builder Phil Klaus of Spectra Construction in Salem, Ore., used the two programs when one of this workers, Derrick Scherwinka, accidentally cut off several fingers with a circular saw a few years ago.

Scherwinka was approached by personal injury lawyers but decided not to sue. Instead, Scherwinka received an initial cash settlement from workers' comp that helped him put a down payment on a house and entered into the back-to-work programs. Klaus re-employed Scherwinka as a painter.

Klaus, who admits that at first he was afraid of the repercussions of the accident on his business, says, “The way Derrick's case was handled was easy and pleasant. I didn't feel like it was the end of the world at all.”

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Oregon is consistent with most other states in that fall protection is the most serious issue on the jobsite.

SOURCE: OREGON DEPARTMENT OF CONSUMER AND BUSINESS SERVICES

Don Payne of Utah fell off a ladder and lost more than his ability to work construction. His story shows what can happen when a builder is less than forthcoming.

Don Payne's life changed forever on Aug. 9, 2002. On that day, the outer pane of an improperly installed double-paned vinyl glass window shattered suddenly when he was trying to fix the mistake and reinstall the window. The exploding window knocked Payne off the ladder, toppling him 16 feet.

The fall was irrevocable: Payne needed two surgeries for a left wrist fracture, surgery for a crushed right thumb, and two surgeries to repair his left rotator cuff. The accident left 21 percent of his body disabled. Today, with his left arm he can lift only one pound over his head one time.

The surgeries, physical therapy, and follow-up medical care cost in excess of $60,000. Suffice it to say, Payne will never work construction again.

But what made matters far worse is that Payne says the builder of the Pleasant Grove, Utah, custom home refused to cooperate with state workers' comp officials or be a part of Payne's case in any way. Another major problem was that the builder, Dan Karren, owner of Karren Construction, was operating at the time without a proper license. Payne says it wasn't until after his fall that Karren disclosed to the rest of the crew that the builder did not have workers' comp insurance.

“I thought he was a licensed contractor,” says Payne. “He was working three jobs at the time and seemed to know what he was doing. He was definitely experienced in construction.”

According to Payne, repeated attempts to reach Karren proved futile. Payne says Karren changed his address and cell phone number and dropped out of sight after the accident. Repeated calls by BUILDER to a phone number supplied by Payne's attorney resulted in a busy signal. Other attempts by the magazine to locate Karren were also unsuccessful.

The situation has taken its toll on Payne, who had to leave his apartment and now lives in a group home for $200 a month.

“My credit was ruined, and I had to go on food stamps and welfare,” says Payne, now 48.

“It took me about three weeks to get my final paycheck,” Payne says. “I'm a golfer and an archer. I like to hunt with a bow, but I'll never use the bow again because my left arm is shot.”

Payne did find two lawyers to help him. One, Craig McAllister, worked out an agreement with the state workers' comp system to recover $60,000 in medical expenses. Payne now also receives roughly a $1,000 monthly disability payment from the state.

The other lawyer, Ed Wells, is still negotiating with the window company, Window Products, now known as Cascade Windows, headquartered in Spokane, Wash. The attorney for the window company, Daniel McConkie, says the company has never heard of a case like this, where a window exploded. He says Window Products flatly denies any wrongdoing.

Payne's case is troubling on many accounts. Unfortunately, the best he can hope for is that the Utah authorities find Karren in some way. Let's hope they do catch up with Karren—and any other builder who operates without workers' comp insurance.