Yesterday evening, I read that an injured Daikin America worker remains in the intensive care unit at the University of Alabama at Birmingham (UAB) more than two months after his exposure to a chemical on the job at Daikan in Decatur. According to reports, three workers were hospitalized following the July 2 accident. One of the three workers has since passed away from his injuries.
Was this chemical exposure an isolated incident? No. According to the Occupational Safety and Health Administration (OSHA), a worker also died in 2019 following an exposure at the same plant.
Think about that! A worker dies following an exposure in 2019. Two years later, three more workers are exposed. Hopefully, we can learn what happened in these exposures. I’m real interested in learning what Daikin did (or did not do) to correct its safety procedures after the first incident!
According to news reports, at least one workers’ compensation lawsuit has already been filed. I plan to follow developments closely.
What Happened? (Investigation Is Critical)
What happened? How were these workers exposed to a deadly chemical? How could such a serious exposure occur twice? These are all important questions.
Several years ago, I represented a worker exposed to a deadly chemical at a paper mill in south Alabama. My client lived but the chemical caused serious lung and brain damage. He is now disabled. At the beginning, we faced a similar question — What happened?
In my case, OSHA investigated and fined the company. The company then hired a defense lawyer who specialized in fighting OSHA claims nationwide. Ultimately, that defense lawyer successfully fought to reduce the fines levied. That was a tragic injustice. Maybe you are asking, how that happened? It happened because OSHA was understaffed and ill prepared for a fight. For years, successive administrations have limited OSHA’s ability to protect American workers. OSHA has far, far too few inspectors. OSHA has far, far too few people who can hold unsafe workplaces accountable. That’s bad for our country. That’s bad for families who trust their loved one is safe at work. By the time I was hired in my case, OSHA had already allowed the company largely to escape accountability.
Through investigation, we were ultimately successful in finding the key people who knew what happened. We were able to show specific chemicals were allowed to mix and create a dangerous gas. These chemicals should have remained separate (with valves locked out) during an outage involving maintenance work. But, they were not. We only found the truth about the incident after lots of investigation and discovery in our lawsuit.
If Daikin tries to hide the truth here, then the lawyers who filed the work comp case will have to diligently work through the legal process to discover what really happened. Hopefully, OSHA will provide a little more help than it did in my case.
Who Is Responsible? (Work Comp Benefits Are Unfairly Limited)
Responsibility and accountability. Those are big issues. When a loved one goes to work each day, we assume the worksite will be safe. It should be.
If you suffer a work-related accident and injury in Alabama, you should be entitled to work comp benefits. Here is a real problem — Alabama workers compensation benefits are unfair to workers. Very unfair.
Work comp should provide medical care. But, too often that falls far short. Daikin (or its insurance carrier) will likely meet its requirement to pay the UAB bills for the worker who remains in the hospital. It’s after the hospital that often becomes a problem. I’ll go back to my exposure case discussed earlier. After my client’s release from the hospital, we had to fight in order to get him the pulmonary and neurological specialists needed to provide good medical treatment. In many cases, the work comp carrier fails to provide adequate medical care without a fight. Comp carriers are often interested primarily in saving medical costs. In comp cases, the insurance company gets to pick the treating doctor. Too often, it picks a doctor more interested in saving money than treating injuries. To top it off, our courts provide procedural hurdles that allow insurance companies to delay or deny needed care. So, medical treatment is a big area of unfairness.
Work comp should provide proper disability benefits. If a worker is significantly disabled, these benefits always fall far too short. Our law unfairly limits benefits. Partial disability benefits have been subject to the same unfair maximum cap for decades. It’s a cap that puts families below the poverty level. Total disability benefits are only a percentage of current earnings without any future cost of living adjustments. To top it off, some of our state legislators (like Senator Orr from Decatur where this deadly incident occurred) have tried for years to enact arbitrary cut-offs for total disability benefits. That’s outrageous and shameful.
Work comp benefits are limited and employers are largely given immunity from real damages. We don’t yet know what happened at Daikin. But, we do know it’s not the first incident. If an employer chooses to put workers in an unsafe environment, why should it be immunized from real and full accountability? Almost every week, I am required to have this difficult conversation with a client who suffered disability because his workplace chose to be unsafe. It’s not fair. So, the lawyers who are representing the Daikin worker will likely investigate the incident from top to bottom in order to discover if someone other than Daikin (or one of its employees) caused the event. While the employer is largely immunized, responsible third-parties are not.
I’ll give you an easy example of third-party liability. Let’s assume you are a delivery driver. You are doing your job. Suddenly, someone runs a red light and crashes into you. Because you are at-work, you are probably entitled to work comp benefits. But, those are limited. They certainly fall short if you are seriously hurt. You cannot sue your employer for more than work comp benefits. But, you can sue the other driver who ran the red light and hit you. You can claim all your damages in that case. Of course, if successful in your suit, Alabama law requires you to reimburse your employer for the work comp benefits it provided. In serious injury cases, it is essential to hire a lawyer who will thoroughly investigate all the facts to determine if anyone outside work comp can pay for your injuries!
How Is That Fair? (Alabama Law Promotes Unsafe Workplaces)
Our laws are unfair to the working men and women who build our communities. This unfairness burdens families and communities with the cost of disability. I’ve already discussed how work comp benefits are severely limited (and constantly under attack by lobbyists and the legislators they support).
I also discussed earlier that OSHA has been toothless in the past. I continue to hope that will change. Safety should be a top priority at our workplaces. But, it’s not just the Federal government. Alabama promotes unsafe workplaces as well. Alabama has virtually no regulatory safety presence. And, our work comp laws are written so that safety is a one-way street. I’ve written about that issue previously. You can read a couple of my prior articles on the issue HERE and HERE. How is safety a one-way street under our comp laws? If an injured worker violates safety rules or fails to use safety equipment, our work comp laws bar benefits. The employer and its insurance company can deny basic benefits. Over the years, I’ve had to fight this issue in court multiple times. Many times, the insurance company will “dream up” a safety rule that was never active or enforced by the employer prior to the accident. Yes, the insurance company will simply create a safety rule after-the-fact to try and deny benefits. We’ve won these prior cases. But, the fight costs my client by delaying needed benefits. How many wrongful denials go unchallenged by injured workers? Although employers can deny claims if the worker violates safety rules, no similar provision penalizes employers for breaking the rules. An employer that chooses to put its workers in danger pays the same benefits as an employer that tried to keep a safe workplace but simply had an unfortunate accident. That’s not fair to the workers or the companies trying to promote safety. Some states have penalty provisions in their comp laws that allow for additional damages in those cases where the employer chooses to ignore safety rules. Alabama does not. Again, Alabama fails to promote safety and fails to protect its most valuable resource – the men and women who work every day.
I’ve watched developments involving the incident in Decatur closely. I hope OSHA and the lawyers who filed the recent lawsuit can discover the truth and hold the responsible parties accountable.
The Blackwell Law Firm represents injured workers across Alabama. We have pursued personal injury cases in courts across the state. If you have a question about a personal injury issue, let us know. We are happy to discuss your issues.