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THE CASE OF FINGER POINTING Based on In the Matter of the Appeal of Burbank Recycling, Inc. (Cal. Occupational Safety and Health Appeals Board, June

THE CASE OF FINGER POINTING

Based on In the Matter of the Appeal of Burbank Recycling, Inc.(Cal. Occupational Safety and Health Appeals Board, June 30, 2014.)

[It is Wednesday, July 29, 2009 at 9:00 a.m. at Burbank Recycling. Line supervisor Miranda Lopez is in the office of Carmen Arroyo, Burbank Recycling's Human Resources and Safety Manager.]

Carmen:Miranda, you look shaken up.What happened?

Miranda (clearly agitated):Zan Moscoso just caught his fingers in a moving V-belt in a motor that runs one of our conveyor belts used for processing recyclable material.

Carmen:Is he OK?

Miranda:No.His hand is in bad shape, but I don't know how bad.I do know there was blood everywhere.I called 9-1-1.Paramedics from the Burbank Fire Department came and stopped the bleeding.They just took Zan to St. Joe's Medical Center.

Carmen:Thanks for letting me know, Miranda.While Zan is at the medical center, I'll make a few phone calls to learn more about the accident.If Zan returns to work today, please send him to me right away.You can get back to work.

[Miranda leaves.Carmen immediately calls Julie Bu of Ideal Staffing.]

Carmen:Hi, Julie.I'm afraid there's been an accident with one of the workers you sent us. His name is Zan Moscoso.

Julie:Elizandro?What happened to him?

Carmen:I don't know all the details.All I know is that a couple of his fingers got caught in one of our conveyor belts and there was a lot of blood.I just wanted to give you the heads-up since you are Zan's primary employer.I'm going to call the medical center and I suggest you do the same.

Julie:Right.I'll let you know what I find out and you let me know what you find out.

Carmen:Will do.

[They hang up.It is now 1:00 p.m. the same day.Zan Moscoso shows up at Carmen's office with his fingers heavily bandaged.]

Zan:Ms. Arroyo, Miranda said you wanted to see me.

Carmen:Come in and sit down, Zan.Good to see you back.I called St. Joe's to find out about how badly you were injured, but no one there would give me or anyone at Ideal Staffing any information because of your privacy rights, so I'll have to ask you.Tell me how this happened and about your injuries.

Zan:I injured three fingers on my right hand when I grabbed onto a moving belt when it was being tested during a maintenance and repair job.Everything happened so fast.I couldn't tell exactly what my injuries were because there was so much blood.

Carmen:Did St. Joe's give you any documents?

Zan:Yes, some of them are in English and some are in Spanish.

Carmen:That's fine.I'm fluent in Spanish.Please let me have what they gave you.[Zan gives Carmen documents.]Thanks.You can go home now.You've been through a lot today.Take care of yourself.

[Zan leaves. Carmen begins to review the documents she received from Zan.]

Carmen (reading the documents aloud):Ok, let's see.This one just says "Dx:Finger Lac."I guess that indicates the diagnosis is that Zan suffered a finger laceration, or cut.This other document indicates that the tip of Zan's finger was cut off and trimmed to enable stitching to keep the finger together.There also are some notes on this document indicating that Zan's middle finger was fractured and a pin placed in it, and that he lost the nail on his ring finger.Wait, what are these release instructions from Dr. Maria Rivera?The title is "Finger Tip Amputation."Let me read her instructions to Zan:

Dr. Rivera (reads aloud as Carmen follows along silently):"You have cut the tip of your finger.When this happens, there is some loss of skin and the wound can't be covered completely with stitches.For the type of wound you have, the best thing to do is to let the wound heal on its own, letting the skin grow on the sides.Depending on the size of the wound, this will take from 2 to 6 weeks for the wound to be filled with new skin.You should be getting normal feeling on the new skin of the fingertip once the wound is healed."

Carmen:I'm still not exactly sure what this means about how bad Zan's injuries are.This sounds like good news, all things considered.The way I read these release instructions and the other documentation, it appears that Zan only suffered a deep cut on his index finger without bone loss, and a fracture that required no hospitalization.Let me call Julie at Ideal Staffing again to see if she has a better read on this.

[Carmen calls Julie]

Julie:Yes, that's how I'm reading it, too.But let's try to call St. Joe's and the professionals who treated Zan to clear up this uncertainty.

Carmen:Good idea.We also should contact our workers' compensation insurance carriers to report this workplace injury.

Julie:Sounds like a plan.

[They hang up.It is now Monday, August 3.Carmen call Julie again.]

Carmen:Julie, I got your emails and texts.Looks like you made a number of calls just as I did, but couldn't get any information from the medical center of those who treated Zan's injuries.

Julie:That's right.I know you contacted your workers' compensation insurance company and that you reviewed the records Zan gave you.I did, too.Do you think we also need to contact Cal-OSHA to tell them about this?

Carmen:No, I don't think so.The rules require that OSHA be contacted about any "serious" injury that results in, among other things, an amputation.That doesn't appear to be what Zan suffered, despite the title on those release instructions.He wasn't hospitalized.The accident was bad, but it wasn't serious as I read OSHA rules.

Julie:OK.I'll defer to you, since you're the client.Bye.

[They hang up.It is now August 5.There's a knock at Carmen's door.]

Carmen:Come in.

Danielle:Ms. Arroyo, I'm Danielle Sousa, an investigator with Cal-OSHA.The Burbank Fire Department alerted us that there was a serious workplace injury at your facility involving your employee Elizandro Moscoso.We were surprised we didn't also hear from you.

Carmen (to herself):You didn't hear from us because nothing Mr. Moscoso told me about the accident or anything in Mr. Moscoso's medical records tipped me off that Mr. Moscoso had suffered a serious injury under your agency's rules.I tried to get clarification from those who treated him, but got nothing.There's no way OSHA can finger us for any wrongdoing here.

Danielle:It's not your job to make that call.It's mine.I'll let you know what I conclude after my investigation.

What's the legal or question?

who do you agree with he employer or the employee why, explain. who wins?

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