North Carolina: Failure to Provide Welding Shields to Maintenance Worker Was Not Willful Violation of Safety Standard

North Carolina: Failure to Provide Welding Shields to Maintenance Worker Was Not Willful Violation of Safety Standard

A North Carolina appellate court recently affirmed a decision by the state’s Industrial Commission denying an injured employee’s claim for a ten percent compensation increase pursuant to N.C. Gen. Stat. § 97-12, due to the alleged willful failure of his employer to comply with 29 C.F.R. § 1910.133, which places an affirmative duty on employers to "ensure that each affected employee uses appropriate eye or face protection when exposed to eye or face hazards from, among other things, potentially injurious light radiation.  Although the employee was a maintenance worker and not a welder, he did work in an area for 2 and ½ years where welding was done.  He developed a relatively rare condition, welder's arc retinopathy, a condition caused by exposure to intense welding light.  All employees were supplied with standard safety glasses, tinted sunglasses for outdoor use, and welding shields for welding.  Since the employee was not a welder, he was not given any shields.  The appellate court held that under these circumstances it did not follow that it was the employer's deliberate purpose to avoid its obligation to provide the employee with appropriate eye protection. The employer could have believed, even mistakenly, that utility mechanics exposed to welding light did not require the same level of eye protection that the employer afforded to welders. There was insufficient evidence to establish that it was the employer’s deliberate purpose to avoid its obligations under 29 C.F.R. § 1910.133.

Thomas A. Robinson, J.D., the Feature National Columnist for the LexisNexis Workers’ Compensation eNewsletter, is a leading commentator and expert on the law of workers’ compensation.

LexisNexis Online Subscribers: Citations below link to Lexis Advance. Bracketed citations link to lexis.com.

See Veneris v. Domtar Paper Co., LLC, 2014 N.C. App. LEXIS 34 (Jan. 7, 2014) [2014 N.C. App. LEXIS 34 (Jan. 7, 2014)]

See generally Larson’s Workers’ Compensation Law, § 105.06 [105.06]

Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law.

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