The forgotten ones: Few remedies for injured contractors

Few remedies for injured contractors

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February 22, 2008, began like any other day for José Herrera. A seasoned contract pipefitter in his late 40s, Herrera had labored in Texas refineries for two decades. The work was hard and sporadic, but on a good week, including overtime, an experienced hand like Herrera might earn $3,500, enough to provide a good life for his wife, Hortencia, and son and frequent fishing companion, José.

By late morning, Herrera and a co-worker, Aaron Salinas, had scaled a scaffold at the Citgo East refinery in Corpus Christi, Texas, and were busy preparing the Crude Unit for a procedure known as a chemical wash. At 10:35 a.m., a “nipple” — a metal piece measuring only three-quarters of an inch by 17 inches — extending from a heat exchanger broke loose, showering the two men with 550-degree oil, a lawsuit filed by Herrera and Salinas claims.

Salinas clambered down from the scaffold, escaping with burns on his back, neck and head. Herrera wasn’t as lucky. Unable to free himself from his safety harness for several minutes, he was seared badly by the oil. Someone finally cut him down, and he was airlifted to Brooke Army Medical Center in San Antonio, where, for a time, doctors thought he might die. Third-degree burns covered his head, hands and arms.

Since that day three years ago, Herrera, 50, has undergone 11 operations. Doctors rebuilt his chin, transferring layers of skin from his chest and his thighs. Scar tissue prevents him from being able to close his right eye. His body temperature is constantly out of whack. “I’ve been in hell,” he said during a recent interview in Houston, near his home in Baytown, Texas. “I’m in pain every minute.”

Adding to his woes, Herrera has fallen into a gap in the protections afforded many workers injured on the job. After racking up an estimated $200,000 in medical costs and with no income other than a modest workers’ compensation check, Herrera says his money is running out. He can only fantasize about holding a job and resuming the activities he used to relish — martial arts, dancing, fishing with his son, now 13.

A photograph shows José and Hortencia at a dance, in better days. “He’s not the husband I had before,” she said.

Some refinery workers are killed on the spot and duly memorialized, their survivors compensated financially for expenses, pain and suffering. Others, like Herrera, are maimed — their prospects dashed, their lives forever altered — and largely forgotten. Even when authorities find fault with refineries and the contractors that keep them running, workers like Herrera can have few means of redress for their injuries.

Following the hot oil mishap in 2008, the U.S. Occupational Safety and Health Administration cited Herrera’s former employer, Corpus Christi-based Repcon Inc., for two serious violations. Repcon paid a $2,000 fine for failing to alert its employees to fire and explosion hazards; OSHA dropped the other violation, which alleged that Repcon failed to provide personal protective equipment.

OSHA also found fault with Citgo, citing it for four serious violations. Citgo paid a $10,000 fine for three of the violations, including failure to inspect and test the nipple on the heat exchanger to ensure its mechanical integrity prior to the accident. OSHA dropped the fourth violation, which claimed that Citgo failed to inform contract workers of fire and explosion hazards.

Under Texas law, Herrera can’t sue Repcon, his employer at the time of the accident, because the company provided workers’ compensation coverage. Such is the case in most states. Because of a court decision, however, a property owner in Texas is considered its own “general contractor,” and also is shielded from lawsuits if it provides workers’ comp to its “subcontractors.” Citgo did.

The 2007 Texas Supreme Court decision shielding “premises owners” from liability was unanimous. During their careers on the court, the nine justices involved in the ruling collectively have received nearly $1.2 million in campaign contributions from the oil and gas industry, according to data from the National Institute on Money in State Politics. The industry is a major economic engine in Texas; nearly one-fifth of all U.S. refineries are located there.

Unless the Texas Legislature changes the law, Herrera’s prospects for a sizable financial recovery are limited. At the moment, he is suing the only entity he can, Refined Technologies Inc., a Citgo contractor that planned and directed the work on the heat exchanger.

Plaintiff’s attorneys have railed against the Supreme Court decision. John Eddie Williams, a Houston lawyer who represented more than 150 victims of a 2005 explosion at the BP refinery in Texas City, Texas, said the decision removes accountability for plant operators and “grants immunity to people who don’t deserve it. The worker gets nothing.”

Had the court’s ruling been in effect at the time of the Texas City blast, Williams said, injured workers and families of the 15 who died would not have been able to sue BP. The company could have claimed to be a general contractor and inoculated itself against legal action.

Lawmakers favoring tort reform are expected to push to get the court ruling codified during this year’s legislative session, Williams said. “We hope that would be an opportunity for people to take a look at it and make some reasonable exceptions,” he said. “When a premises owner such as BP repeatedly ignores safety warnings and has repeated safety violations, they should not receive immunity.”

Mike Hull, a lawyer who represents a tort reform group, Texans for Lawsuit Reform, said the Supreme Court decision didn’t change the law but merely affirmed what was already on the books. “There were numerous employers who were already acting as their own [general contractor],” Hull said. The court’s ruling ensures that employees of subcontractors have access to insurance, he said. Its critics, Hull said, consist of a few lawyers “who have made a fair amount of money on third-party lawsuits.”

A Citgo spokesman declined to comment on the Herrera case. In its official answer to a lawsuit filed by Herrera and Salinas in 2008 — and later withdrawn after the Supreme Court ruling was reheard and upheld — the company said it was not at fault for the accident, suggesting that either the workers themselves or “third parties” were to blame.

Representatives of Repcon and Refined Technologies did not respond to interview requests from the Center for Public Integrity. After Herrera filed his lawsuit, the Austin American-Statesman quoted Kevin Roberts, a Refined Technologies vice president. “It was a tragic accident,” Roberts told the newspaper, but “I don't know what we could be blamed for.” In a court filing, Refined Technologies denied responsibility for the mishap.

Herrera, meanwhile, endures with stoicism. “It’s pretty bad,” he said, “but I have to live, I guess, like that. I’ve got no choice.” His $498 per week in workers’ comp ends April 24. Though his lawyers are trying to get him lifetime benefits of $712 per week, there’s no guarantee they’ll succeed.

To make ends meet, he has already sold two trucks and an RV and now worries that “I’m about to lose everything.” Citgo and the two contractors, he said, “put me aside like a broken tool."

Chris Hamby and Caitlin Ginley also contributed to this story.