Virginia International Terminals, Inc.

Read the official release (oshrc.gov)

Plain-English summary

Virginia International Terminals, Inc. did not require operators to use seat belts on forklifts equipped with them. OSHA cited the company under the general duty clause after an operator drove a forklift off a loading ramp, was ejected or jumped, and later died from her injuries. The judge found that forklift tipovers were a significant and recognized hazard. He also found, however, that the cited industry standard called for an operator-restraint system without specifying seat belts as the required solution. Studies, expert testimony, and marine-terminal experience raised unresolved questions about whether belts could increase injury risk during collisions, falling cargo, brake failures, or some types of tipovers. Because OSHA did not prove that mandatory seat-belt use was a feasible means of abatement, the complaint and citation were dismissed.

Decision snapshot

• Cited standard(s): 29 U.S.C. § 654(a)(1)
• Outcome: The general-duty-clause citation was dismissed, with no penalty assessed.
• Key point: Recognizing a forklift tipover hazard was not enough; the Secretary also had to prove that the specific proposed abatement method would materially reduce risk without creating greater unresolved hazards.

Full text (OSHRC public release)

                 UNITED STATES OF AMERICA
     OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR
Complainant

         v.

VIRGINIA INTERNATIONAL TERMINALS, INC.,
Respondent

Docket Nr. 96-1735

Appearances
For Complainant For Respondent
Marvin Krislov R. John Barrett
Deputy Solicitor Howard W. Roth
Vandeventer, Black,
Deborah Pierce-Shields Meredith & Martin, LLP
Regional Solicitor Norfolk, VA

  Gayle M. Green
  Attorney

  U.S. Department of Labor
  Philadelphia, PA

Before: JOHN H FRYE, III, Judge, OSHRC

1
 DECISION AND ORDER

                                  I. INTRODUCTION



    The single citation in this case was issued following an OSHA investigation into a

fatality that resulted from a forklift truck accident at Respondent Virginia International

Terminals’ Warehouse 4, Norfolk International Terminal. The accident occurred when an

operator drove her forklift truck off of a loading ramp. The operator either jumped or was

ejected from her truck and suffered serious injuries. Some days following this accident she

died.

    The Compliance Officer who investigated the fatality learned that, although

Respondent’s employees operate forklift trucks that are equipped with seat belts, they are not

required to use these belts. Because there is no specific OSHA regulation addressing the

hazard to which forklift truck operators are exposed if they exit their forklift truck during a

tipover or fall from a dock or ramp, the citation was issued under the General Duty Clause,

Section 5(a)(1) of the Occupational Safety and Health Act. Trial of this charge took place

September 4 - 5, 1997, in Norfolk, Virginia.

    The facts are not in dispute. VIT is a corporation with a business address and

workplace at Norfolk International Terminal, 7737 Hampton Boulevard, Norfolk, VA 23505.

(Answer). Respondent employs approximately 1,200 employees in its business activities, and

utilizes tools, equipment, materials, goods and supplies which have originated in whole or in

part from locations outside the State of Virginia. (Answer)

2
 Margie Poarch, an employee of Respondent, was operating a Hyster “Challenger”

forklift truck on October 9, 1996. (Tr. p. 22, GX 12). She backed off a ramp and either

jumped or was thrown from her forklift, suffering serious injuries for which she was

hospitalized. She died on October 20, 1996. (Tr. p. 16, 22, 177). The Operating Manual for

Ms. Poarch’s Hyster forklift warns that the seat belt must be worn to reduce the risk of serious

injury. (GX No. 8, Tr. p. 32-34).

    Beginning on October 21, 1996, OSHA Safety and Health Compliance Officer Beverly

Kupke (now Beverly Crandell) conducted a fatality investigation at Respondent's workplace.

(Tr. 15). On November 26, 1996, the Secretary issued to Respondent one citation together

with a Notice of Proposed Penalty. (GX 6).

    Respondent’s employees operate forklift trucks that are equipped with seat belts (GX

12) that they routinely do not use. (Tr. p. 27). Respondent’s management personnel are aware

of this practice. (GX 12). Both union and management recommend but do not require the use

of seat belts on forklift trucks (Tr. p. 184, 201, 242; GX 12). The Hampton Roads Shipping

Association (HRSA) recommends that, whenever equipment is provided with seat belts or

other protective devices, the employer shall require their use1 (GX 9, second to the last page),

although it appeared that this policy had not been enforced and was about to be reconsidered.

Mr. Harrison, the Director of Port Safety for HRSA, was involved in formulating the Hampton

1

The HRSA is an association comprised of management representatives of
the companies, including Respondent, and union representatives of the
unions, who operate and work in the Port of Norfolk. (Tr. p. 36, 93).
This policy was adopted by the joint labor-management Safety Committee of
the HRSA. Tr. 93-96.

3
Roads policy on seat belts in 1990. (Tr. p. 231-32). The Secretary had announced that a

universal seat belt requirement was under consideration, and the local policy was adopted in an

effort to be pro-active. (Tr. p. 95, 232). Mr. Harrison understands that OSHA has decided to

shelve the seat belt regulation. (Tr. p. 232-233). Consequently, HRSA may consider revoking

the port policy on seat belts. (Tr. p. 233).

   The Secretary relies on ASME B56.1-1993, “Safety Standard for Low Lift and High

Lift Trucks,” a standard formulated by the American Society of Mechanical Engineers in

accordance with the procedures of the American National Standards Institute, Inc. (ANSI).

(GX 7, p. 1). Safety standards relating to the design, operation, and maintenance of powered

industrial trucks are included in it. (GX 7, p. 1) The Standard serves as a guide to

governmental authorities, manufacturers, purchasers, and users of the equipment. (GX 7, p. 1)

   The ASME Standard states that counterbalanced sit-down lift trucks, the kind of truck

operated at Respondent’s worksite (Tr. p. 116), shall have a restraint device or system

designed

   ... to assist the operator in reducing the risk of entrapment of the operator’s head
   and/or torso between the truck and the ground in the event of a tipover.

(GX 7, & 7.39(a).) The Standard also states that, when an operator protection system is

provided, it shall be used:

   An active operator protection device or system, when provided, shall be used.
   Operator protection in the event of tipover is intended to reduce the risk of entrapment
   of the head and torso between the truck and the ground but may not protect the

4
 operator against all possible injury (see para. 7.2.2). However, steps indicated in
paras.5.3.18(d) and (e) should still be adhered to.2

The Standard offers the following guidance in the event of a tipover:

         (d) The operator should stay with the truck if lateral or longitudinal tipover occurs.
         The operator should hold on firmly and lean away from the point of impact.

         (e) The operator should stay with the truck if it falls off a loading dock or ramp. The
         operator should hold on firmly and lean away from the point of impact.

GX 7, & 5.3.18.

    Following the dictates of the Standard, the manufacturer of the Hyster Challenger forklift

truck provides the following warning both in the Operating Manual and on the truck.

         PROTECT YOURSELF, FASTEN YOUR SEATBELT!


         ***

         DO NOT JUMP off if the truck tips! HOLD the steering wheel firmly. BRACE your
         feet. LEAN FORWARD and AWAY from point of impact.

GX 8, p.5. The Operating Manual contains numerous similar warnings.

    The Operating Manual also states (p.8):


         The seat belt and hip restraint bracket provide additional means to help the operator
         keep the head and torso substantially within the confines of the lift truck frame and
         overhead guard if a tipover occurs. This restraint system is intended to reduce the risk
         of the head and torso being trapped between the lift truck and the ground, but it can
         not protect the operator against all possible injury in a tipover. The hip restraint
         bracket will help the operator resist side movement if the seat belt is not fastened. It is
         not a substitute for the seat belt. Always fasten the seat belt.



2
     Paragraph 5.3.19.

5
 The Secretary's expert witness, Mr. Richard Sauger,3 voiced an opinion that differs from the

Standard in that he does not advocate staying with the truck in the event of a longitudinal

tipover. In that situation, Mr. Sauger advocates jumping clear. (Tr. 138-40.)

    VIT relies on a study done by the Institute for Advanced Safety Studies for Allis-Chalmers,

Industrial Truck Division, in 1985-86. The purpose of the study was to determine if a winged

seat and/or a seat belt would affect the severity of injuries to an operator’s head in a tipover.

The study measured acceleration in the head of an anthropometric dummy in tipovers:

                        Effects of Seat/Belt Combination on Head Injury

                           Averaged Peak           Averaged Head           Averaged Severity
                           Resultant               Injury Criterion        Index (SI)
                           Acceleration (g’s)      (HIC)4

Conventional Seat          362                     1200                    1427
w/o Belt

Conventional Seat          426                     1164                    1556
with Belt

Winged Seat w/o Belt 377                           1240                    1447

Winged Seat with           528                     2331                    2691
Belt


3

Richard Sauger is an OSHA employee working as a Safety Specialist
in the office of Electrical, Electronic & Mechanical Engineering
Safety Standards, and acting as the Director of the Safety
Standards Program for OSHA. (Tr. p. 100-101). He is a member of
the ASME B56.1 Committee that wrote the standard the Secretary
relies on. (Tr. p. 102).
4
Values of HIC in excess of 1000 are considered to produce irreversible
brain damage. RX 4, p.ii.

6
The study showed that the use of a belt contributed to the severity of head injuries. The study

    noted that the seat belt is a passive restraint system which, to be effective, may not rely on

operator response or strength, and consequently took no credit for any effort by the operator

to “...hold on firmly and lean away from the point of impact.” (RX 4, p.iv; GX 7, &5.3.18(d)).

Respondent's experts, Mr. Ponek5 and Mr. Signorino,6 testified that it is not the custom and

practice of the marine terminal industry to require the wearing of seat belts on forklifts (Tr. pp.

218, 257), and they are not aware of any port in the United States where such a requirement

exists (Tr. p. 218, 275-276). Both are of the opinion is that there is more inherent danger in

    wearing a seat belt because a seat belt hinders the operator’s ability to get off the machine

promptly in an emergency7 (Tr. pp. 228, 258), although Mr. Signorino believes that at higher



5

Mr. Ed Ponek has worked closely with the National Marine Safety
Association. (Tr. p. 211-212). He worked for Maher Terminals, a breakbulk
stevedoring company, from 1965 to 1994 (Tr. p. 212), beginning as the
Manager of Safety and advancing to Director of Safety for that company.
(Tr. p. 212-213). He created training programs for longshoremen. (Tr. p.
213). He has observed forklift operations on a daily basis at Maher and
also has visited all ports on the East and West Coast. (Tr. p. 214). He
left Maher in 1994 and worked for the New York Shipping Association as an
instructor.
6
Mr. Signorino is a consultant with Environmental Hygiene Incorporated
and also the Director of Health, Safety & Regulatory Affairs for Universal
Maritime Service Corporation. (Tr. p. 248-249). Universal operates marine
terminals in Newark, New Jersey, Baltimore, Maryland, Norfolk, Virginia,
Charleston, South Carolina, and Miami, Florida. (Tr. p.249). Starting in
1980, Mr. Signorino became working in the office of Maritime Standards at
OSHA’s National Office, where he was the Project Officer for shoreside
aspects of marine cargo handling which was codified as 29 C.F.R. Part 1917.
(Tr. p. 252). Mr. Signorino is a Fellow of the OSHA Institute and taught
OSHA compliance to staff officers. He also teaches at Webb Institute of
Naval Architecture on regulatory affairs. (Tr. p. 255).
7
Contrary to Mr. Sauger (Tr. 150), Mr. Signorino believes it possible to
exit the high side of a forklift in a tipover. (Tr. p. 258).

7
operating speeds, in excess of 15 mph, seat belts may be effective in reducing injuries. (Tr. p.

268). The evidence here indicates forklifts attain maximum speeds of about four to eight miles

per hour. (Tr. 174, 264.) Mr. Signorino is aware of the criticisms of the Allis-Chalmers Study,

 but believes that it is valid and subscribes to its conclusion of increased risk of injury in a

                forklift tipover when seat belts are worn. (Tr. p. 274-275).

Mr. Ponek has reviewed and also agrees with the conclusions of the Allis-Chalmers Study. (Tr.

p. 222). He believes that the restraint system installed in the Hyster Ms. Poarch was operating

 offered no protection to her upper body, torso, and head. (Tr. p. 223-224). Mr. Ponek has

never seen seat belts used on forklifts in marine terminal operations, and points out that there is

no OSHA regulation that requires the wearing of seat belts in maritime forklift operations.

 Maher Terminals, where he served as Safety Director, did not require forklift operators to

wear seat belts and did not purchase forklifts with seat belts. (Tr. p. 218). He believes there is a

 danger to forklift operators from falling cargo tumbling in unprotected sides, as well as a

  danger from side impacts by other vehicles, and that avoiding these hazards may require

                         jumping from the forklift. (Tr. p. 220-22).

These experts’ testimony reflects the stated preference of the Longshoremen who testified. Joe

Riddick has been the Business Agent of Local 1458, ILA, for the past 19 years. (Tr. p. 168-

169). His job is to make sure the orders for labor are filled and to represent the union in joint

investigations of problems at the Terminal. (Tr. p. 169). He operated a forklift for 12 years

and has been on the waterfront, either as a longshoreman or business agent, for 38 years. (Tr.

    p. 169-170). Mr. Riddick never wore a seat belt when he operated a forklift and, on

8
occasions, had to jump free from the forklift when its brakes failed and he believed it was safer

to jump than to stay in the forklift. (Tr. p. 170). He has seen many occasions when forklifts

 were damaged, but individuals were not hurt because they jumped off. (Tr. p. 171). Mr.

 Riddick knows of four people who were injured by staying with the forklift. (Tr. p. 172).

After Ms. Poarch’s accident, there was a meeting of the Local and the majority of the rank and

 file members indicated that they would not wear seat belts. (Tr. p. 178-179). Part of Mr.

Riddick’s job is ensuring the safety and welfare of the men and women in his Local. (Tr. p.

179). It is his opinion that it should be left up to the individual whether to wear a seat belt.

                                      (Tr. p. 179-180).

E.M. Dean has been with VIT for 20 years and is currently the Senior Cargo Foreman. (Tr. p.

186-187). He is responsible for the cargo once it hits the pier after leaving the ships (Tr. p.

 187), and for getting the cargo to the ship. (Tr. p. 188). The men and women who work

  under his supervision include forklift operators. (Tr. p. 189). Mr. Dean is aware of many

incidents where injuries were avoided by individuals being able to jump from a forklift before

there was a side impact, or before being struck by falling cargo, which often comes in the side

 of a forklift where there is nothing to protect the operator. (Tr. p. 195-96, 199-200). Mr.

Dean himself operated forklifts for 25 or 30 years. He is more comfortable both as an operator

  and as a supervisor when operators are not hindered in their ability to jump free to avoid

                                 accidents. (Tr. p. 200-201).

Darnell Johnson is a Header and Shop Steward. His duties are to control a gang of men of up

to 15 people and to control all of the labor in the 1458 Local. (Tr. p. 236-237). He has driven

9
 forklifts for 27 of his 29 years on the waterfront. (Tr. p. 237). He does not himself use, nor

does he require his workers to use, seat belts because he regards their use as dangerous. Mr.

  Johnson recently witnessed an incident where a hustler was about to impact the side of a

forklift. The driver avoided serious injury by jumping off. (Tr. p. 238-239). He has also seen

operators avoid being struck by falling cargo by jumping out of their forklifts. (Tr. p. 239).

                                      II. DISCUSSION

 To establish a violation of Section 5(a)(1), the Secretary must prove that: (1) a condition or

activity in the employer’s workplace presented a hazard to employees; (2) the cited employer

or the employer’s industry recognized the hazard; (3) the hazard was causing or likely to cause

death or serious physical harm; and (4) feasible means existed to eliminate or materially reduce

the hazard. Waldon Healthcare Center, 16 BNA OSHC 1052 (Nos. 89-2804 and 89-3097,

1993); Tampa Shipyards Inc., 15 BNA OSHC 1533 (Nos. 86-360 and 86-469, 1992); Pelron

Corp., 12 BNA OSHC 1833, 1835 (No. 82-388, 1986).

 In her brief, the Secretary tends to define the hazard in terms of the remedy, stating that the

hazard is the failure to use seat belts when they are provided. She does not address the

question of whether a hazard exists, concentrating instead on the proposition that a hazard was

recognized. The hazard as stated in the complaint and citation is the following:

      The employer did not furnish employment and a place of employment which was free
      from recognized hazards that were causing or likely to cause death or serious physical
      harm to employees; in that employees operating power industrial trucks (cargo
      handling equipment) equipped with seat belts, were not required to wear seat belts

10
 during operation, exposing employees to serious injury and recognized hazards should
the equipment tip over.

The citation goes on to describe Ms. Poarch’s accident and to refer to ASME/ANSI Standard

B56.1d-1992.

 There are two problems with this statement. First, it tends to confuse the hazard with the

Secretary's proposed means of abating the hazard. There is no evidence in this record that

failure to wear a seat belt is itself a hazard. Indeed, it is hard to imagine that there could be

such evidence. There is no risk of injury that stems solely from such a failure. Moreover, it

makes no sense to say that the hazard of failure to wear a seat belt only exists when forklifts

are equipped with seat belts. If a hazard exists at all, it exists without regard to the presence of

a seat belt. The evidence adduced by the Secretary identifies the hazard as a tipover accident.

In the event of such an accident, the Secretary argues that the seat belt provides some

protection to the operator.

 A better statement of the Secretary’s position is that seat belts in forklift trucks are a

component part of an operator restraint system that is designed to reduce the incidence and

severity of injuries to the operator in the event of a tipover accident, a hazard to which forklift

trucks are particularly susceptible, and that the failure to wear the seat belt that is provided in

the forklift truck increases the risk of injury to the operator in the event of such an accident.

 Similarly, VIT blinks at reality in saying that there is no hazard. Ms. Poarch died as a result

of injuries received in a tipover accident. There is no showing that Ms. Poarch’s accident was

freak or even unusual. Rather, the evidence indicates that it is an accident which reasonably

11
may be expected to occur. I find that the hazard of a tipover accident exists, and that that

hazard is significant.

 The evidence also indicates that the hazard is recognized. HRSA has adopted, although not

enforced, a recommendation that seat belts be used when present, and the ASME/ANSI

Standard and manufacturer’s operating manual contain similar advice. While there is the

uncontradicted testimony of VIT’s experts that no major port follows such a practice, the

reason is the belief that use of seat belts presents a greater hazard than nonuse, rather than a

refusal to recognize an obvious hazard.

 This leaves the question whether the Secretary has demonstrated that the use of seat belts,

when present, is a feasible means of abating the hazard. I begin this inquiry by focusing on the

recommendations of the ASME/ANSI Standard. That recommendation is that “an active

operator protection device or system, when provided, shall be used.” (Emphasis added.) The

“active operator protection device or system” is defined in & 7.39(a) as

      a restraint device, system, or enclosure that is intended to assist the operator in
      reducing the risk of entrapment of the operator’s head and/or torso between the truck
      and the ground in the event of a tipover.

This definition pointedly does not include a reference to seat belts, and that omission was

intentional. Interpretation 1-38 issued January 18, 1994, addressed that omission.

      Question (1): Section 7-39 suggests a major change to operator restraints. Please
      clarify what is meant by this section, with examples of suitable devices.

      Reply (1): The inclusion of Section 7.39 does not suggest so much a change to
      operator restraints as it does a positive statement of the need for some device or system
      with the purpose of assisting the operator in reducing the risk of injury in an overturn
      accident. The means to accomplish this is purposely left nondescript. The Standard

12
 does not intend to provide design requirements for acceptable means to accomplish the
intent. The Standard leaves it open to the ingenuity of the designer to accomplish that
task in whatever way is felt by the manufacturer to best answer the need.

      Question (2): The Section would tend to rule out the use of standard lap type seatbelts.
      Is this clause meant to include wings of the operator’s seat or other such devices?

      Reply (2): Standard lap type seatbelts, winged seats, and many other such devices
      would all be included in the definition of restraint device, system, or enclosure.

See GX 7, p.13, see also Interpretation 1-41 issued January 6, 1995, at p.15; Tr. 114-15.

 The ASME/ANSI Standard does not specify the particulars of an operator restraint system,

but rather challenges the manufacturers of forklifts to find “some device or system with the

purpose of assisting the operator in reducing the risk of injury in an overturn accident.” The

ASME/ANSI Standard concluded only that a problem exists and called on manufacturers to

solve it; clearly it did not conclude that the use of seat belts (or any other specific device) was

an acceptable solution.

 Mr. Sauger indicated that the ASME/ANSI recommendation that a restraint system be

incorporated into new forklifts results from accumulating evidence that operators who tried to

jump clear of tipping forklifts were being trapped between the truck and the ground (Tr. 116-

17). However, he was vague with regard to any studies and/or testing programs that may have

shed light on this problem.8 Moreover, he was unaware of any studies or documentary

8
The Secretary identified GX 11, a copy of a trade magazine article which
briefly discussed this problem and alluded to an apparently extensive study
of it at Hyster Co. GX 11 was not offered because it had not been furnished
to Respondent's counsel in advance. Even if it had been received in
evidence, it would have done no more than serve as evidence that such
studies exist and could not have been taken as evidence of their content or
conclusions.

13
evidence regarding the efficacy of the use of seat belts (Tr. 156); he had not reviewed the Allis-

Chalmers study until he prepared for trial (Tr. 165). This he regarded as having been

discredited by the subsequent action of Allis-Chalmers and other manufacturers to install seat

belts (Tr. 123-24), although he gave no basis for questioning the accuracy or reliability of the

data reported by Allis-Chalmers.

 The test results reported by Allis-Chalmers cast sufficient doubt on the ASME/ANSI

Standard to require considerably more than the cursory response given them. For example, is

the advice in the ASME/ANSI Standard that the operator should grasp the steering wheel and

lean away from the impact consistent with the accelerations (g values) reported in the Allis-

Chalmers study? In other words, would it be possible for an operator to effectively overcome

those accelerations by holding on and leaning? This record provides no answer.

 Moreover, the problem appears to be far more complex than a simple tipover accident.

There is abundant evidence in this record that other accident scenarios need to be considered.

The longshoremen and union officials who had operated forklifts spoke of collisions with other

vehicles, failed brakes, loss of traction on slick surfaces, and tumbling cargo, and indicated that

the restraint provided by seat belts sometimes can be hazard in itself. All testified that they

prefer to forego the restraint of a seat belt because that restraint can delay them in jumping

from the truck in an emergency.9 Even the Secretary's expert, Mr. Sauger, indicated that it is

9
While all these witnesses gave convincing statements, Darnell Johnson’s
testimony was particularly persuasive. Mr. Johnson’s demeanor and the
straightforward manner in which he answered questions left no room to doubt
that his views were sincerely and honestly held. I credit the statements of
these witnesses over that of Mr. Sauger (Tr. 159) with respect to the
question whether unfastening the seat belt poses a significant delay in an

14
best to jump from a forklift in a longitudinal tipover (Tr. 139-40) and in a situation where the

blade of another forklift was about to enter the side (Tr. 156).

 The use of seat belts as part of an operator restraint system may or may not be a feasible

means of abating the hazard posed by tipover accidents. If such use is a feasible means of

abatement, it would constitute a hazard in other accident scenarios which may or may not be a

greater hazard. Unfortunately, this record does not answer these questions. I conclude that the

Secretary has not met her burden of persuasion. See Secretary v. Kokosing Construction Co.,

Inc., 17 OSHC 1869, 1875 (Rev. Com. 1996).

                               III.CONCLUSIONS OF LAW

 Respondent Virginia International Terminals, Inc., is engaged in a business affecting

commerce and is subject to the requirements of the Occupational Safety and Health Act of

1970, as amended, 29 U.S.C. §651 et seq.

 Respondent did not violate Section 5(a)(1) of the Occupational Safety and Health Act of

1970 as charged in the Complaint.

                                         IV.ORDER

 The Complaint and Citation are dismissed.

emergency.

15
 JOHN H FRYE, III
Judge, OSHRC

Dated:
Washington, D.C.

16