Fresenius USA Manufacturing, Inc. d/b/a TruBlu Logistics

Plain-English summary

OSHA inspected a Fresenius distribution warehouse after an employee reported an electric shock while disconnecting a forklift battery. The judge vacated the allegation that medical personnel were not readily available, finding that the cited rule did not require contact within a fixed time and that Fresenius maintained emergency contacts for advice and consultation. He also vacated the flexible-cable item because OSHA did not prove that the photographed connector was the one involved, that it was in service, or that its strain relief was inadequate. A partial settlement resolved the remaining citation items. Under that settlement, several items were affirmed, several were withdrawn, and total penalties of $6,000 were assessed.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.151(a); 29 C.F.R. § 1910.151(c); 29 C.F.R. § 1910.178(p)(1); 29 C.F.R. § 1910.178(l)(1)(i); 29 C.F.R. § 1910.178(l)(3)(i)(K); 29 C.F.R. § 1910.178(l)(6); 29 C.F.R. § 1910.305(g)(2)(iii); 29 C.F.R. § 1904.7(b)(3); 29 C.F.R. § 1904.29(b)(1); 29 C.F.R. § 1904.32(a)(1); 29 C.F.R. § 1910.157(c)(1)
• Outcome: Two litigated serious items were vacated; the settlement affirmed other items with $6,000 in penalties and withdrew the rest.
• Key point: The ready-availability rule requires access to medical advice and consultation, but does not set a fixed deadline for contacting medical personnel after every incident.

Full text (OSHRC public release)

                                          United States of America
             OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                           1924 Building - Room 2R90, 100 Alabama Street, SW
                                       Atlanta, Georgia 30303-3104

Secretary of Labor,
Complainant,
v. OSHRC Docket No. 10-0652
Fresenius USA Manufacturing, Inc., d/b/a
TruBlu Logistics,
Respondent.

Appearances:

      Schean G. Belton, Esq., Office of the Solicitor, U. S. Department of Labor, Nashville, Tennessee
      For Complainant

      Jefferson Starling, III, Esq., Balch & Bingham, LLP, Birmingham, Alabama
      For Respondent

Before: Administrative Law Judge Ken S. Welsch

                                      DECISION AND ORDER

      Fresenius USA Manufacturing, Inc. d/b/a TruBlu Logistics (Fresenius), is a subsidiary of

Fresenius Medical Care, which manufactures medical devices and operates kidney dialysis clinics
throughout the United States. On January 25, 2010, the Occupational Safety and Health
Administration (OSHA) inspected the Fresenius distribution warehouse in Birmingham, Alabama.
OSHA had received a complaint about an employee who was shocked on January 13, 2010, while
changing the battery for a forklift in the battery charging area. After OSHA’s inspection, Fresenius
received serious and other-than-serious citations on March 12, 2010. Fresenius timely contested the
citations.
The hearing, designated for Simplified Proceedings pursuant to 29 C.F.R. § 2200.200 et. Seq.,
was held on July 22, 2010 in Birmingham, Alabama. The parties stipulated jurisdiction and coverage
(Tr. 5). The parties also announced partial settlement regarding all items alleged in the serious and

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other than serious citations except the alleged serious violations of 29 C.F.R. § 1910.151(a) (Item
1) for the lack of available medical personnel for advice and consultation, and 29 C.F.R. §
1910.305(g)(2)(iii) (Item 4) for failing to provide an adequate strain relief on flexible cables at the
connector plug (Tr. 6-8). The parties’ Stipulation of Partial Settlement Agreement dated August
23, 2010, is approved and incorporated into this decision.
Fresenius denies the alleged violations of § 1910.151(a) and § 1910.305(g)(2)(iii). Fresenius
claims the cited standards do not apply and, if found applicable, the terms of the standards were not
violated.
As discussed, serious citation, Items 1 and 4 are vacated and no penalties are assessed.
Background
Until February 2010, Fresenius operated a distribution warehouse in Birmingham, Alabama.1
The warehouse included administrative offices, a loading dock, break room, and battery charging
area. The warehouse operated with day and night shifts. The night shift began at 3:00 p.m. and was
staffed with approximately eight employees. Battery operated forklifts were used by employees in
the warehouse. Each forklift had its own numbered battery station to charge separate batteries for
the day and night shifts. The distribution warehouse manager was Michael Spivey (Exh. C-3; Tr. 40,
51-52).
On January 13, 2010, a night shift order selector arrived at the warehouse at approximately
2:45 p.m. He drove his forklift to the #4 battery charging station to replace the battery already in the
forklift with the fully charged battery for night shift operation. Each 36-Volt battery had two,
approximate 3-foot long cables. The red and black sheathing on the cables protected copper wires
which were anchored at terminal screws inside a grey, 3-inch wide, plastic connector plug. Similarly,
the battery charger had approximate 5-foot long red and black cables which anchored at terminal
screws inside another plastic connector plug. When charging the battery, the two connector plugs
were joined. The charger automatically shuts off when the battery was fully charged and when the
battery was disconnected from the charger. When placing the battery in the forklift, the connector
plug was joined to a similar connector plug on the forklift. Employees were instructed to hold the

      1
          In February 2010, Fresenius opened a new warehouse in Alabaster, Alabama (Tr. 122).

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two connector plugs and not the cables when connecting or disconnecting the battery from the battery
charger and forklift (Exh. R-4; Tr. 30, 34, 53, 131, 134-135, 140-141).
When the order selector disconnected the night battery from the charger, he testified that the
sheathing covering the two cables near the connector plug was back from the connector plug,
exposing bare copper wires (Tr. 22). When he pulled the two connector plugs apart, he heard a
“Pow, Pow” and “everything went out for a few seconds” (Tr. 14, 38). He experienced ringing in
his ears and tingling in his left arm. Another employee helped him take off his shirt because he also
felt heat in his arm. The employee walked the order selector to the break room. When Spivey and
the night supervisor came to inquire about the accident, the order selector testified that he was asked
if he was all right to continue work or did he want to be taken to the hospital. He said that he asked
twice to be taken to the hospital. He did not arrive at the hospital for approximately 45 minutes after
the accident (Tr. 12, 15-17, 56).
Spivey testified that when he was informed of the accident, he went to the battery charging
area and saw the battery sitting on the rack below the charger. He said the battery cables were laying
across the battery and a black mark, approximately 4 inches long, was on the side of the battery. He
described the black mark as it “looked like soot from arcing,” (Tr. 125). When Spivey went to the
break room, he testified the order selector was standing and he asked him “did it hit you” and
“where.” The order selector said “yes,” “on my hands.” Spivey testified there were no marks on the
selector’s hands and his eyes were clear. When asked if he needed to go to the hospital, Spivey
testified that the order selector said “No, I think I’m OK, I think I’ll be all right” (Tr. 126). Spivey
told the selector to sit down and rest. Spivey testified the order selector spoke in a normal tone and
manner and his breathing was normal. He did not observe sweating or any symptoms of injury
indicating electric shock. Spivey noted the selector’s hands were shaking, a little. He believed the
shaking was from “scare” of the accident. Spivey did not believe the selector was electrocuted.
Spivey testified the order selector never asked to see a doctor. He directed the night supervisor to
watch the order selector and let him know if he wanted to go to the doctor. Spivey returned to his
office. About 10 minutes later, he was advised the order selector wanted to go to the hospital. He
directed the night supervisor to drive him (Tr. 127-128, 130).

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The order selector estimated he was in the break room for approximately 30 minutes and it
took another 10-15 minutes to be driven to the hospital (Tr. 17, 18). The order selector was admitted
to the hospital where he spent 4 days. He testified that he was diagnosed with nerve and tissue
damage in his left arm and hand (Tr. 48, 58). At the hearing, the order selector testified that he was
not working and was receiving “workers’ compensation” (Tr. 13).
After receiving a complaint regarding the accident, OSHA inspected the Fresenius warehouse
on January 25, 2010. Compliance safety and health officer (CSHO) Jennifer McWilliams who had
recently been hired by OSHA, participated in the inspection along with two supervisors (Tr. 66, 69).
The OSHA inspectors interviewed employees and inspected the battery charging station (Tr. 70, 73).
On March 12, 2010, Fresenius was issued the serious citation which included alleged
violations of § 1910.151(a) (item 1) and § 1910.305(g)(2)(iii) (item 4).
Discussion
The Secretary has the burden of proving a violation of the cited standards.
In order to establish a violation of an occupational safety or health
standard, the Secretary has the burden of proving: (a) the applicability
of the cited standard, (b) the employer’s noncompliance with the
standard’s terms, (c) employee access to the violative conditions, and
(d) the employer’s actual or constructive knowledge of the violation
(i.e., the employer either knew or, with the exercise of reasonable
diligence could have known, of the violative conditions). Atlantic
Battery Co., 16 BNA OSHC 2131, 2138 (No. 90-1747, 1994).

    Fresenius disputes the application of § 1910.151(a) (Item 1) and § 1910.305(g)(2)(iii)

(Item 4) and that it violated the standards.2 Fresenius withdrew its unpreventable employee
misconduct defense to item 4 (Tr. 155-156).

    2
     Issues not briefed are deemed waived. See Georgia-Pacific Corp., 15 BNA OSHC 1127, 1130 (No. 89­

2713, 1991).

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Alleged Violations
Alleged Violation of § 1910.151(a) (Item 1)

     The citation alleges that “on or about January 25, 2010 - the employer did not provide medical

personnel to evaluate an employee that was injured at the battery charging station.”3 Section
1910.151(a) provides, under the heading “Medical services and first aid,” that:
The employer shall ensure the ready availability of medical personnel
for advice and consultation on matters of plant health.

     According to OSHA, the basis for the alleged violation was Fresenius’ failure to contact

medical personnel for 45 minutes after the order selector’s accident (Tr. 76, 90). McWilliams
described the purpose of § 1910.151(a) as to ensure that medical advice and consultation is available
in the critical minutes between an injury and the receipt of treatment by a physician or hospital. For
support, OSHA relies on an OSHA Interpretation letter dated January 16, 2007 (Exh. C-4). The
Secretary argues that Fresenius should have consulted with medical personnel earlier than 45 minutes
after the accident.
By its wording, § 1910.151(a) requires an employer to ensure that medical personnel are
readily available to provide “advice and consultation on plant health matters.” “Ready availability”
is not defined and is stated in general terms. OSHA’s Interpretation letter provides no assistance
because it applies to subsections (b) and (c) within § 1910.151.4
As a broadly worded standard, § 1910.151(a) is interpreted in the light of the conduct to
which it is being applied and by external objective criteria, including the knowledge and perceptions
of a reasonable person. Such criteria give meaning to the standard in the particular situation.
American Bridge Company, 17 BNA OSHC 1169, 1172 (No 92-0959, 1995). There is no OSHA

     3
      Although the citation refers to “January 25, 2010," the parties agree the alleged violation was the result

of the order selector’s accident which occurred on January 13, 2010.
4
Section 1910.151(b) and (c) provide:
(b) In the absence of an infirmary, clinic, or hospital in near proximity to the workplace which is
used for the treatment of all injured employees, a person or persons shall be adequately trained to
render first aid. Adequate first aid supplies shall be readily available.

     (c) Where the eyes or body of any person may be exposed to injurious corrosive materials,
     suitable facilities for quick drenching or flushing of the eyes and body shall be provided within
     the work area for immediate emergency use.

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interpretative letter or other authority stating that § 1910.151(a) requires an employer to take an
employee to a medical facility or contact a health care provider for consultation within a set amount
of time after an accident.
The § 1910.151(a) standard applied to Fresenius’ warehouse in Birmingham, Alabama. It
required Fresenius to have medical personnel available to contact for advice and consultation
regarding warehouse health matters. The warehouse did not have a nurse or other medical personnel
on staff. Fresenius maintained a list of emergency telephone numbers for medical assistance including
911, the fire department, poison control, an ambulance service, and a nearby health care facility.
Fresenius trained personnel to contact emergency by dialing 911 in the event that medical advice was
needed for health matters (Tr. 25, 79-80, 137). A first aid kit was also onsite (Tr. 138). There were
first aid posters including one which described the signs and symptoms of electrical shock (Tr. 156)

   Under the circumstances in this case, a violation of § 1910.151(a) is not established. The

Secretary failed to show that the approximate 45-minutes to obtain medical assistance was
unreasonable given the order selector’s lack of visible injury, distress, and unconsciousness. The
selector’s breathing and speech were normal (Tr. 128). He was not sweating (Tr. 126). He was able
to understand, communicate and physically move without noticeable bruises or burns. He said his
finger tips “were kind of bluish” which he compared to a “quick injury like if you hit the ground” (Tr.
42-43). Although he complained immediately after the accident of feeling a tingling and heat in his
left arm, there is no showing such problems continued when he was assisted to the break room.
There is no showing medical personnel needed to be consulted prior to the order selector’s
request to see a doctor. Fresenius had medical personnel available through telephone contact for
consultation and advice, if it was deemed necessary. Such telephone contacts comply with the
standard (Tr. 93-94).
Also, as noted by McWilliams, the standard does not require an employer to immediately
contact medical personnel or seek medical treatment for every accident, injury or other health matter
(Tr. 92-93). She acknowledged an employer does not have to contact medical personnel every time
an accident occurs, particularly if the employee does not think it is necessary (Tr. 98). An employer
does not have to call 911 for every minor injury.

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The standard requires medical personnel to be readily available for advice and consultation,
if necessary. There is nothing in § 1910.151(a) that addresses when an employer must contact
medical personnel for advice and consultation. If the Secretary wanted to require an employer to
contact health care personnel within a set time frame after every accident, injury or illness, she would
have drafted the standard to state such a requirement. She did not.
Section 1910.151(a) allows an employer to make a reasoned decision based upon the
circumstances. Spivey, not observing any signs and symptoms of electrocution, decided that medical
consultation was not required for the order selector (Tr. 168). The 45-minutes in getting order
selector to the hospital does not establish that medical personnel were not readily available to provide
advice and consultation. The delay was not the result of the lack of readily available medical
personnel.
Even if the order selector’s testimony is given weight that he twice asked to be taken to the
hospital, the record fails to establish medical personnel were not available for advice or consultation.
Because of the accident, the selector’s recollection of events especially time could have been affected.
Nothing in the order selector’s condition immediately after the accident was shown to require a more
immediate medical contact. His speech and breathing were normal. There were no visible signs of
burn or injury. He was not sweating or showing signs of distress. The standard does not require
medical personnel to be present at the workplace. It only requires such medical personnel be
available through contact for advice and consultation.
The 15-minutes driving time or approximate 10 miles to the hospital may be a violation of
§ 1910.151(b), which was not cited. That standard requires medical facilities in “near proximity.”
However, even if cited, the record shows that an urgent care clinic was within 1.1 miles (3 minutes)
of the warehouse (Exh. R-3). Such availability meets the Secretary Interpretation letter of “near
proximity” (Exh. C-4).
Alleged Violation of § 1910.305(g)(2)(iii) (Item 4)
The citation alleges that “on or about January 25, 2010 - in the south corner of the warehouse,
battery charging station #4 and the green and/or yellow batteries had exposed wires on the connector
plugs.” Section 1910.305(g)(2)(iii) provides:

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Flexible cords shall be connected to devices and fittings so that strain
relief is provided which will prevent pull from being directly
transmitted to joints or terminal screws.

     The order selector testified that prior to receiving the electric shock, he observed the

sheathing on the red and black battery cables were pulled away from the connector plug, exposing
the bare copper wires (Tr. 14, 22, 31). After he was admitted to the hospital, the order selector asked
another employee to take photographs of the connector plug. The selector gave the photographs to
OSHA (Exhs, C-1, C-2; Tr. 24).
When asked to identify the photographs at hearing, the order selector was unable to testify
whether the connector plug in the photographs was the connector at the #4 battery station that he was
unplugging at the time of the accident (Tr. 23, 49). There is no showing when the photographs were
taken and the employee who took the photographs did not testify (Tr. 102). Also, the battery
connector plug shown in the photographs appears to have been taken out of service (Exh. R-1;
Tr. 28, 65).
Spivey testified he did not observe exposed copper wires on the battery cables at station #4
when he inspected the battery used by order selector immediately after the accident (Tr. 131). Spivey
observed the cables laying across the battery and a black mark on the side. The black mark appeared
to Spivey as a sign of arcing and not electrocution (Tr. 125). He observed a cable with a “nick” in
the sheathing laying across the metal casing of the battery. The battery was taken out of service
because of Spivey’s concern that there may have been a cut in the sheathing. The battery cables were
replaced by Fresenius’ contractor who maintain the batteries (Exh. C-5; Tr. 143). Fresenius used
another contractor to conduct periodic inspections of the battery station (Exhs. R-5, R-6).
Section 1910.305(g)(2), requiring a strain relief, applies. The red and black cables are flexible
cords. Under §1910.305(g)(1)(i)(F), flexible cables are used for “connections of stationary
equipment to facilitate their frequent interchange.” Such was the battery charger where batteries
were regularly connected and disconnected. The purpose of a strain relief is to eliminate stress from
being placed directly on the terminal screws inside the connector plug if the employee pulled on the
cables instead of the plastic connector. There is no evidence that employees pulled on the cables
instead of the connector plugs.

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The record fails to establish the lack of a strain relief, as alleged. McWilliams testified the
connector plug had a strain relief, but she believed it was worn (Tr. 110-111). She considered the
connector housing was the strain relief (Tr. 111). By the time of the OSHA inspection, the cables
had been replaced and McWilliams did not open the connector plug to observe the condition of the
strain relief.
Spivey’s testimony is credited. When he went to the battery charger area immediately after
the accident, he did not observe any exposed wires on the battery cables. He saw a cut in the
sheathing and evidence of arcing. The order selector, on the other hand, was unable to identify the
connector plug in the photographs as the battery cables involved in the accident. He did not take the
photographs. He could not testify regarding when the photographs were taken and whether the
exposed wiring was new or how it became exposed (Tr. 21, 27, 31). His ability to recall the exposed
wires may have been affected by the trauma of the accident.
McWilliams did not observe the #4 battery or any defects in any of the batteries during the
OSHA inspection on January 25, 2010 (Tr. 100-101). She did not see any exposed wires on the
battery cables. She had “no idea if this [photograph] was the battery/connector that was involved in
the accident” (Tr. 103). Also, she conceded that if the battery cables shown in the photographs were
not in service and no evidence that anyone had used them, there was no violation (Tr. 113).
McWilliams testified she had no idea how the wires became exposed (Tr. 106). If the exposed
wires existed, such condition could have been caused by something other than the lack of a strain
relief. Neither McWilliams nor the order selector could testify whether the battery cables in the
photographs were the cables that may have caused the incident on January 13, 2010 (Tr. 21, 29-30,
102-103).
Also, the connector plug, depicted in the photographs, shows a tag identifying it as a battery
that was “not in service” at the time the photograph was taken (Exh. C-2; Tr. 29, 141-142). There
is no evidence that the connector plug on which OSHA relies was in use in January 2010.
A violation § 1910.305(g)(2)(iii) is not established.

                               FINDINGS OF FACT AND
                               CONCLUSIONS OF LAW

    The foregoing decision constitutes the findings of fact and conclusions of law in accordance

with Rule 52(a) of the Federal Rules of Civil Procedure.

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ORDER
Based upon the foregoing decision, it is ORDERED:
1. Serious violation of § 1910.151(a) (item 1) is vacated and no penalty is assessed.

    2.     Serious violation of § 1910.151(c) (item 2) is affirmed pursuant to the parties’ partial
    settlement agreement and a penalty of $2,500.00 is assessed.

    3.       Serious violation of § 1910.178(p)(1) (item 3a) is withdrawn pursuant to the parties’
    partial settlement agreement and no penalty is assessed.

    4.    Serious violations of § 1910.178(l)(1)(i) (item 3b), § 1910.178(l)(3)(i)(K) (item 3c)
    and § 1910.178(l)(6) (item 3d) are affirmed pursuant to the parties’ partial settlement
    agreement and a grouped penalty of $2,500.00 is assessed.

    5.     Serious violation of § 1910.305(g)(2)(iii) (item 4) is vacated and no penalty is
    assessed.

    6.     Other-than-Serious violations of § 1904.7(b)(3) (item 1a) and § 1904.29(b)(1) (item
    1b) are withdrawn pursuant to the parties’ partial settlement agreement and no penalty is
    assessed.

    7.      Other-than-Serious violation of § 1904.32(a)(1) (item 1c) is affirmed pursuant to the
    parties’ partial settlement agreement and a penalty of $1,000.00 is assessed.

    8.      Other-than-Serious violation of § 1910.157(c)(1) (item 2) is withdrawn pursuant to
    the parties’ partial settlement agreement and no penalty is assessed.




                                                   \s\ Ken S. Welsch
                                                   KEN S. WELSCH
                                                   Judge

Date: September 3, 2010

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