Lawsuit Alleges Lack of Machine Guarding Nearly Cut Employee in Half

A Florida lawsuit alleges that lack of machine guarding left an employee disfigured.

The Orlando Sentinel reports, Edgardo Toucet Echevarria, 44, filed a lawsuit against Future Foam Carpet Cushion in Orange County, FL, following an incident on Jan. 13, 2010. (WCxKit)

Echevarria, a contract worker at Future Foam employed by Spartan Staffing, was asked by supervisors to remove a foam core from a “peeler machine” that has a steel blade used to cut blocks of carpeting foam, according to the lawsuit.

The suit alleges he wasn’t trained in operating the machine, and in the course of removing the foam, the machine activated.

OSHA cited Future Foam for 10 serious violations, including two machine guarding violations, and proposed $42,500 in fines. Future Foam is contesting the fines.

The lawsuit claims employees had improperly removed a guard from the machine.

“The surgical sharp steel blade sliced through [his] pelvis … while virtually cutting his body in half,” the lawsuit claims. (WCxKit)

Echevarria is seeking punitive damages and more than $15,000 for disfigurement, loss of capacity for enjoyment of life, medical expenses, loss of earnings and loss of earning capacity.

Subrogation: The employer (insurance company for the employer) will not doubt eventually file an action to recover damages against the machine manufacturer. Any recover may be offset against contributing fault of the employer for lack of supervison and lack of adequate training. Employers should address this subject in their account instructions.

Note on Product Liability: There are many resources that help employers stop this type of injury. National Safety Council and University of Wisconsin offer courses on machine guarding. Please, ask you insurance broker for assistance. The general rule is to 1- design hazards out of the equipment, 2- recall any equipment that is defective, and 3- if those two options are not possible then warn the users of the hazards. Simply warning users of the hazards is not sufficient and is not a defense when the machine is improperly designed and contains inherent hazards. Machinery should be "fail safe" meaning when guards are removed the equipment will shut down. Employee removal of guards is generally not a valid employer defense in a product liability action because the machine design should prevent operation if guarding is removed.

Design hazards out of equipement! Litigation Managers can take a proactive approach to reducing injuries by educating divisions of your company about product safety and design.

Author Robert Elliott, executive vice president, Amaxx Risks Solutions, Inc. has worked successfully for 20 years with many industries to reduce Workers Compensation costs, including airlines, healthcare, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing. See www.LowerWC.com for more information. Contact: [email protected] or 860-553-6604.

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Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers comp issues.