Thursday, September 21, 2006

Cooking The Books, Part III: The Industrial Hygiene Consultants and How KFM Benefits

Note: The entire four-part series can be read here.

Over the past two days we've described how KFM cooked the books by using "the carrot" to discourage workers from reporting injuries or illnesses, "the stick" to punish workers who do report injuries, and how KFM's doctors collude with the company to ensure that injuries and illnesses don't get put on the Cal/OSHA Log.

Today, Part III discusses how KFM used its industrial hygiene consultants to limit information, who makes the decisions about what gets recorded and how KFM benefits from "cooking the books."


Cooking the Books: The Industrial Hygiene Consultant

A June 2004 Oakland Tribune report showed that KFM had knowingly exposed workers to welding particulate and fumes, including manganese, for more than a year, in excess of Cal-OSHA standards. Exposures caused pneumonia-like conditions that workers nicknamed the KFM flu. Cal-OSHA records show prime contractor KFM Joint Venture didn't tell the workers about the overexposures, or require respirators or address the problem.

According to Rosemarie Bowler, a lecturer at San Francisco State University who researches the toxic effects of manganese on the brain, "They had increased respiratory problems, and their working memory was impacted from the manganese." Yet KFM never recorded the illnesses on their Log 300 forms and Cal/OSHA declined to cite the contractor for ignoring the claims of as many as 48 sick welders.

How did they get away with it?

Log 300 recording depends on employer knowledge of workplace illness. So, KFM's "Sergeant Schultz" strategy was deliberately limit information it received that explicitly pointed to employee exposure to potentially illness-causing chemical exposures so that responsible officials would know as little as possible.

In 2002, KFM hired the Salt Lake City-based firm IHI Environmental, which has a Bay Area office, to conduct industrial hygiene monitoring and provide technical assistance at the Bay Bridge.

IHI President Don Marano told Cal/OSHA that his firm was "hired for specific tasks, to provide specific information, we had no general responsibility…We gave KFM the data – it was their responsibility to interpret and act on it." During the 2002-2004 period, Marano told Cal/OSHA, "early on we did give recommendations. Some were followed, some were not or only partially implemented."

In June 2004, however, the reporting protocol for IHI changed as KFM had been sued by welders claiming welding-related illnesses from their work at the Bridge. "We did the same work as before, but reported on the results without interpretation and recommendations by IHI," Marano told Cal/OSHA. "KFM did not want anything other than raw results data."

Cal/OSHA's investigative files note that "IHI Environmental tables indicate that between March 2003 and June 2004 IHI personnel took 111 personal samples for welding fume exposure and 46 personal samples for fibers on welders. 23 of the 111 samples (21%) showed exposures above the Cal/OSHA PEL [permissible exposure limit] of 0.2 mg/m3 while another 6 samples showed exposures over the 10-hour day "adjusted" PEL of 0.16 mg/m3 (taken together this means 26% of personal sampling documented over-exposures). 16 of the exposures above the Cal/OSHA PEL occurred between March and June 2004.

Former Field Safety Manager Peart told BSA in his written statement
I was aware that an industrial hygiene company had conducted air samples in the confined spaces in which the welders worked. I asked Mr. Hughes about the results and he said that they were within acceptable parameters. When I pointed out the workers were still getting sick, he said the workers were just 'crybabies.' I asked if the workers would be allowed to see the results and he said that they wouldn't know how to interpret them.
Actually it was worker complaints about welding fume exposures that generated the first Oakland Tribune articles, which sparked the BSA audit of Cal/OSHA's performance at the Bay Bridge (resulting in strong criticism of Cal/OSHA for mishandling three worker complaints). This information ended up as the basis of multiple lawsuits against KFM and IHI Environmental by the welders.

In fact, it wasn't until after almost a year of continuous welding fume exposures to welders who were forced to take numerous personal sick days due to that the "KFM flu" that KFM finally installed an effective ventilation system, according to the Cal/OSHA case file.

Peart told Cal/OSHA that employees were "afraid for their jobs" if they called in sick with work-related illnesses, instead they would "call in sick for a home-related illness, such as a 'cold picked up from a child'" rather than from welding fumes. The former safety staffer said "things would have to become a serious issue (such as welding fume exposures) before they were addressed" by KFM.

Peart reported to Cal/OSHA that "the problem of welding exposures was definitely not resolved in April 2004, when I left. The welders were still complaining about it and they didn't have an effective ventilation system."

Despite the illness-related worker absences, ongoing media coverage and state investigations, no welding-related illnesses were ever entered onto KFM's Log 300.

Cooking the Books: The Real Decision-Makers

KFM's ultimate "failsafe" for maintaining low injury and illness rates at the Bay Bridge is the fact that the consortium, like all employers, is the one who decides what gets entered onto the Log 300, a decision that is supposed to be made by considering the medical work status reports, internal accident reports, Log 300 regulations, and "other relevant information."

In May 2006, Cal/OSHA conducted interviews with KFM safety managers Robert Hughes and his successor Tim Dare. Dare told Cal/OSHA that the decision to make a Log 300 entry was made via "informal, verbal discussions" among a select group of managers (all of whom are eligible for the cash incentive program), including the project safety manager, job superintendents and construction managers on site, the local project director, and the district and regional safety managers in Vancouver, Canada.

Conveniently, this select group of decision-makers does not meet formally, but rather has "informal" telephone conversations; it does not keep any records of their discussions or who participated; and it does not exchange emails or generate any written record of their deliberations or decisions.

Exactly what occurs behind closed doors with this group of managers was not discovered by Cal/OSHA or the BSA until former safety staffer Winston Peart wrote to the BSA:
During my experience at KFM, I witnessed a pattern of deliberate underreporting of injuries. This was frequently accomplished by classifying injuries in a way that allowed individuals to return to work and perform some light-duty assignment. This allowed KFM to avoid reporting the injury to Cal/OSHA or submitting an Employer's First Report of Injury (Form 5020) to KFM's worker's compensation administrator. In addition, I found that these injuries were typically not included on the Form 300 logs.
Cooking the Books: Why KFM Does It

Why would a giant construction consortium spend so much time and effort to keep recorded injury rates low? The reasons were explained in a September 3, 2006, editorial by the newspaper chain which publishes the Oakland Tribune:
Thus, a head injury to Ramon Martinez, Keith Bates' disabling fall from a truck, Darrell Hall's back injury and a career-ending knee injury to Arne Paulson never showed up on state injury records. Paulson even spent 16 months performing light duties before going to an outside physician who almost immediately scheduled him for surgery. Paulson said he was fired by KFM the day he was on the operating table.
How does this scenario help KFM, beyond sanitizing its injury record?

Good safety records keep insurance rates down, enabling a firm to more competitive when bidding for jobs. High insurance rates resulting from two many injuries can price contractors out of the market. Its sort of market-controlled, says Bart Ney of the California Department of Transportation. And, if most other things are equal, safety records can be the deciding factor in getting a contract since fewer injuries signal that a contractor runs safe projects, saving time and money.
A win -win situation for everyone -- except KFM's employees.

Tomorrow, Cooking The Books Part IV: Cal/OSHA's role and the national problem.