WAKE-UP CALL

For most employers, workers? compensation insurance has long been a buffer between them and the frivolous lawsuits employees could potentially file every time they slipped on a wet floor, wrenched their back picking up a box, or banged their head on a low-hanging pipe.

While each state has its own workers? compensation laws, the basic tenet is that the employer provides compensation and medical care for employees who are injured in the course of employment and the employee, in turn, relinquishes their right to sue.

But that security blanket began to unravel the morning of November 5, 2003 when Kristi Fries, an employee at Mavrick Metal Stamping, a now-closed Mancelona, MI auto parts supplier, reached to remove a part from a 110-ton stamping press. Her unzipped sweatshirt triggered the machine's controls, causing the press to slam down and crush her arms, resulting in the amputation of both arms between the wrist and the elbow. She said she never been given a warning about the risk of wearing loose clothing while operating the machine, or that the machine had previously malfunctioned.

Fries sued her employer in 2006, alleging that the company knew the machine was a safety hazard, a charge given more weight by the admission of another Mavrick employee who said he told company supervisors about a similar occurrence with the same machine two years prior to the Fries' incident.

The Michigan Court of Appeals denied Mavrick's September 2007 motion to dismiss the suit on the grounds the case didn't have a solid legal basis. Mavrick asserted the only recourse Fries should have is benefits under the state?s workers? compensation laws. The difference between collecting workers? compensation benefits for a devastating workplace injury such as a duo-amputation and suing an employer in court can potentially be thousands, if not hundreds of thousands of dollars.

But the court ruled in Fries? favor, stating, "We conclude that the plaintiff introduced sufficient evidence establishing that a serious injury was inevitable when an unwarned worker used the press, and that Mavrick willfully disregarded and ignored its actual knowledge of the inevitability of injury."

The fact that Mavrick had a history of safety violations dating back to 1992 didn?t help its cause, nor did the $360,000 fine levied by the state labor department after the accident, when it ruled Kristi Fries was not properly trained. There is no question that this manufacturer ?pushed the limits? on job safety. Since Fries was injured on her first day on the job, it is evident she was not given adequate training. There were also reports that the machine was not equipped with ?pull-backs? ? devices that pull the operator?s hands back when the machine activates ? or light sensors intended to prevent accidental activation by loose clothing, even though the latter was in the plant but not installed on the press.

The result is that the physical trauma suffered by Kristi Fries, and the legal assertion that Mavrick knowingly let her operate an unsafe machine, may strike a blow against the workers? compensation system. The collateral damage is Mavrick itself, as the lawsuit put the company out of business in 2008, along with the loss of jobs, which affected 50 families in a state already reeling from an economic knockout punch.

?Here is a clear case where well-trained workers? compensation professionals could have intervened before the incident occurred, when the irregularity in the machine was initially reported,? states Preston Diamond, a certified workComp advisor and executive director for the Institute of WorkComp Professionals (Asheville, NC). ?And this should also be a wake-up call for businesses to make sure their house is in order.?

For businesses to avoid a duplication of the Mavrick incident, a structured safety process that that starts with supervisor training needs to be a top priority. All employees should be trained by spending time with experienced employees to learn how the equipment functions (as well as such peripheral dangers as loose clothing, spilled drinks, etc.). Only by knowing exactly how a machine operates will the employee know if the machine isn?t working properly, a problem that could become a potential danger down the road. And the moment this potential danger is reported, the employer should immediately take the machine out of operation until the problem is resolved. It?s also imperative that all machine safeguards are in place and functioning properly.

Creating a safety culture in the workplace is crucial. The minute employees feel their boss isn?t concerned about job safety; they won?t be concerned, either. And the end result can be catastrophic.

The best way to circumvent this potential problem is to establish a safety committee, comprised of management and employees, particularly those who use and are familiar with the machinery. When there is a problem reported, it should go as high up the chain of command as it can, to someone with the authority to shut the machine down. This was the problem when the Mavrick employee told his supervisor about an unsafe machine and nothing was done about it. From all accounts, the employer knew about a defect in the machine, knew it could be accidentally activated, actually had the part in stock to correct the problem, and chose, for whatever reason, not to act.

The fallout has been great. Kristi Fries has lost the use of her arms and hands, a major employer has shut down and put 50 workers on the street, employees who had witnessed the horrific accident may be emotionally scarred, and a workers? compensation system that has stood strong for many years may now shows signs of cracking. Still, this could have all been avoided had the employer made the decision to have a trained workers? compensation specialist come onboard before it all began.

Kristi Fries has said that she is grateful her life-changing injuries might at least raise awareness and send a message to employers about the importance of worker safety. But whether employers will heed the message, remains to be seen.

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Randall S. Boss is the outsource risk manager for Ottawa-Kent in Jenison, MI. Trained by the Institute of WorkComp Professionals (IWCP), Boss has helped companies control their workers? compensation costs. He can be reached at [email protected].