Dad's death highlights gap between how OSHA polices government vs. private sectorBy DAVE SOLOMON
New Hampshire Union Leader
November 27. 2017 1:58PM
Tom Wooten of Belmont was 56 when he was killed in an industrial accident last July. Wooten was trapped between a tractor and the trailer it was hauling while working for the Northfield Highway Department.
His daughter, Samantha Wooten, is still looking for answers. If her father had been employed in the private sector, OSHA would descend on the scene, conduct a full investigation, recommend remedial action and if warranted, cite the employer for safety violations.
But public-sector employees working for the state, its counties or its municipalities are not subject to such OSHA regulations. The state Department of Labor visited the site and declared the case closed.
“There is no jurisdiction by OSHA on municipalities,” said Wooten. “It’s not the town of Northfield’s fault. On the whole there just is no oversight, no jurisdiction, so when my dad’s accident occurred, there was pretty much no investigation. The Department of Labor just copied the police report, word for word, took some pictures and that was it.”
Manchester state representative and Democratic Congressional candidate Mark MacKenzie, a longtime AFL-CIO executive, says he has tried in the past to get New Hampshire to adopt an OSHA partnership — now at work in 28 other states — to cover public sector employees, but has been unsuccessful.
“We’ve tried,” said MacKenzie. “There is a provision in the OSHA law that allows the state to file a state occupational safety plan. OSHA will provide 50 percent of the funding for implementation of that plan and would have some jurisdiction in terms of doing inspections.”
In New England, Connecticut and Maine have adopted OSHA-approved state plans.
MacKenzie has filed a bill, HB 1500, that defines workplace violence and workplace injuries, and requires that deaths and serious injuries in the workplace be reported to the commissioner of labor.
The bill doesn’t go so far as to mandate development of an OSHA-approved state plan, but MacKenzie calls it an incremental step in that direction.
“I don’t think we could get (a state OSHA plan) through this year,” he said. “The hope is we can move in that direction. I don’t think the legislature is ready for it yet, but it’s going to be part of our discussion moving forward.”
Rudy Ogden, an attorney for the state Department of Labor, acknowledges that without OSHA support, the state is hard-pressed to match OSHA expertise in accident investigations.
“We don’t necessarily have all the same standards or options that OSHA has available,” he said. “In terms of accident reconstruction and the like, that’s not something the department can do.”
Ogden has discussed the situation with MacKenzie and says he understands the frustration of people like Wooten.
“I understand the extent to which people want that type of analysis or that type of response to take place,” he said. “But there would have to be some changes. The Department of Labor in New Hampshire is not set up to do exactly what OSHA does in all those situations.”
In New Hampshire, private-sector employees — even those working on public-sector projects — are subject to OSHA protections, while public-sector employees are not.
OSHA recently cited a Bellows Falls construction company for safety violations in connection with the death of a worker in May, according to the Keene Sentinel.
Christopher Hewey, 37, of Alstead died in a trench collapse while working for a company that was contracted by the town for a drainage project. According to the Sentinel, OSHA cited the company for not implementing an accident prevention program, not inspecting the trench, inadequate training and an unprotected excavation.
Had Hewey been working for the town instead of a contractor, it’s unlikely that any of that would have happened.
“Why is their safety more important than those who work for the state or the town?” says Wooten. “I’m really frustrated with the whole scenario.”
Wooten works in the Department of Justice as a case manager for juvenile court diversion, and says her coworkers were shocked there was no meaningful investigation of her father’s fatal accident.
“I would think that would be something the state would want to do, to find out what happened, what went wrong,” she said. “Was it mechanical or human error? I don’t want to place blame, but I don’t want this to happen to anyone else, and there have been no measures taken to prevent it from happening again.”
A new advocate
Wooten has asked to join the board of the Coalition for Occupational Safety and Health, met with representatives of the state’s Congressional delegation, and is ready to help MacKenzie with his legislation.
“He’s already asked me to testify,” she said. “I want my dad’s story to be heard, so people don’t have to go through what we went through and still continue to go through on a daily basis.”
Ogden, speaking for Department of Labor Commissioner Ken Merrifield, said the department will take its lead from the Legislature.
“We’ll do what the Legislature wants,” he said. “(Commissioner Merrifield) is cognizant of the fact that regulations and standards we have in place are different than OSHA standards, and to the extent that the Legislature wants to incorporate or adopt OSHA or be part of that program, we’d support whatever avenue they want us to take.”