FORT WAYNE, Ind. (WPTA21) – When Shacarra Hogue was killed inside a machine at Fort Wayne Plastics in January 2018, it was a tragedy, but it was hardly an isolated case involving safety violations that led to a workplace death.
ABC21 has been Digging Deeper into fatal accidents on the job in Indiana and into the broader issue of workplace safety. We found deadly incidents average 2.5 per week in Indiana, where limits on penalties and a restriction on lawsuits are a serious concern among some safety advocates and attorneys.
“It happens too often,” Northeast Indiana Central Labor Council president Tom Lewandowski said.
He believes the situation in Indiana mirrors one nationwide, with most workplace injuries flying under the radar.
A Congressional study 10 years ago found as many as 69 percent of accidents involving injuries go unreported.
“That becomes a huge problem, because those unsafe workplaces become the norm,” Lewandowski said.
And injuries can lead to deaths.
The norm in Indiana is this: 137 workers died on the job in 2016, the most recent year for which figures are available.
Per capita, the state was the 14th deadliest that year, and ranks highest among the eight Great Lakes states. In 2016, 4.5 worker deaths were reported for every 100,000 full-time employees.
That rate is 28 percent above the national average or 3.6 deaths per 100,000 workers.
“When I saw that, I said here we go again,” attorney Steve Wagner said.
Wagner, who is based in Indianapolis, has handled more than 25 cases involving a workplace death. While he has represented plenty of families, he has not sued the companies where their loved ones worked.
He can’t. Indiana law won’t allow it.
“Family members lose a loved one, and at most they might get a funeral paid for,” he said.
“What? I can’t sue? There’s nothing we can do?”
Wagner and Lewandowski believe that protection for businesses leaves out a key incentive for companies to play it safe: Fear of lawsuits can be a good reason not to put workers in harm’s way.
In Shacarra Hogue’s case, ABC21 previously reported that Fort Wayne Plastics had disabled an important safety feature on the press that killed her.
Indiana’s Occupational Safety and Health Administration (IOSHA) completed its investigation in a little more than a month and assessed a fine of $17,000 for two serious code violations and one non-serious one.
In a settlement a few weeks later, two of those counts were dropped and Fort Wayne Plastics was fined $6,300 for a single serious violation. Hogue’s family was unable to take legal action on their own.
Wagner is frustrated by that system.
“Too many times, you see a fine — $10,000, $15,000 for egregious behavior,” he said. “And then (the companies) hire a lawyer and then it gets knocked down.”
Full interview with Steve Wagner
In Indiana, the maximum penalty a company can face for a single serious code violation is $7,000. That’s far less than the national OSHA recommendation of $12,471, set forth in the agency’s 2016 overhaul of its guidelines.
Federal OSHA’s top penalty for “willful or repeated violations” was upped to $124,709. In Indiana, it is $70,000.
ABC21 reviewed every safety order issued by IOSHA from May through October 2018. During that six-month span, the state filed complaints against 57 companies for “serious” or “repeat” violations.
We found that the initial penalty was reduced in dozens of cases.
How it works: An explainer of IOSHA’s proposed penalties and settlement system
A Brownsburg company, for instance, was fined $30,250 for 16 violations. Each of the counts was upheld, but in the settlement with that company, IOSHA reduced the fine to $7,375
“What incentive is there for safety then?” Lewandowski asks. “Who is the next person who is going to be killed because it doesn’t cost that much to kill someone?”
Shacarra Hogue’s mother says it’s time for change at the State Capitol.
“I have been trying to think: ‘What can I do?'” Samantha Hogue-Figgs told us. “I would like to see who I need to speak to through the legislature… to see if we can get this fixed, because there is a hole. And unfortunately, my child fell through the hole.”
ABC21 has contacted several lawmakers regarding exactly that, and reached out to IOSHA seeking an on camera interview.
One state representative says after reviewing the Hogue case and other findings, he is preparing to file a bill that would address some of the concerns. ABC21 will have more on his proposals in a follow-up report next week.
As for the attempt to speak with Department of Labor commissioner Rick Ruble, the initial request for that interview was denied. After a second request, a public relations firm representing the Department of Labor, of which IOSHA is a part, said the commissioner had other immediate commitments, but the firm did relay the following statement, explaining why it often reduces fines:
“When IOSHA grants a reduction in penalty during the settlement process, the company must agree to take significant actions that improve safety for their employees. These actions must go beyond the abatement required from the original inspection. In this way the settlement process requires employers to make improvements to their safety programs that directly benefit and affect the health and safety of their employees.
That means a portion of the money that the employer would have paid to the State’s General Fund as penalty dollars is required to be invested back into the employer company to improve employee safety. If the employer doesn’t follow through with the agreed actions, then much higher penalties can be assessed without the option of further settlement.
It is also important to note that all penalty funds go into the State’s General Fund, not into the Indiana Department of Labor budget.
Improving workplace safety and preventing workplace accidents is our primary goal. In fiscal year 2018, Indiana OSHA completed a combination of more than 2,700 formal and informal inspections.
We also invest more than $1.25 million in our INSafe program, which is a fully free program available to all Indiana employers to help identify and address ways to improve workplace safety. This is a very valuable program. In fact, when I was in private law practice, I referred many of my business clients to the INSafe consultation program to help them improve workplace safety. I hope you can take a few moments to explore the value of the INSafe consultation programs.
The incident that is at the heart of your investigative story is tragic, and I imagine we both can agree that no amount of money can ever compensate for the loss of a loved one.
But we can work to educate, assist, reward and hold employers accountable in the diligent effort to ensure employees go home to those they care about. That is our top goal each and every day.”