Federal officials criticize state safety agency's inaction in fatal fall

Federal safety officials are accusing Nevada's workplace safety agency of failing to combat reluctance, evasion and falsehoods from two local employers when the state investigated the fatal fall of a 20-year-old part-time stagehand at the MGM Grand hotel in 2009 .

Federal officials want Nevada OSHA to document why it did not find willful violations at the heart of the accident, the U.S. Occupational Safety and Health Administration's San Francisco office wrote to the victim's family and Nevada OSHA in late December.

The victim's mother went to federal OSHA last year for a review, alleging the state's accident investigation and the penalties it assessed were inadequate. The Dec. 23 letters from the federal agency contain its findings and recommendations.

The state has 30 days, until Jan. 23, to tell federal officials what Nevada OSHA will do with the findings. The state can disagree and choose not to implement recommendations, Steven Coffield, head of Nevada OSHA, told the Review-Journal on Wednesday. He said the agency will not discuss its position on the federal report before Jan. 23.

But the U.S. Department of Labor's stance is that recommendations are "something that a state is expected to comply with. It is more than a suggested option but less than an order," department spokeswoman Deanne Amaden wrote by e-mail on Wednesday.

No matter what Nevada OSHA does next, "previous citations would not be replaced" by harsher citations for the Rodriguez accident, she wrot e.

In connection with the young man's death, Nevada OSHA had cited both the hotel and Rhino Las Vegas, a stage-rigging contractor, for several "serious" violations, but none that was willful.

Willful violation of OSHA laws entails deliberate behavior by an employer that puts a worker in danger or an employer's indifference to hazards. By state law, a willful violation requires the local district attorney's office to evaluate the case for criminal prosecution of the employer.

Rhino hired UNLV student Vice nte Rodriguez, the accident victim, for a one-night job on May 20, 2009. His parents have produced their e-mails with Rhino, in which the parties agreed Rodriguez would work in venues only at ground level.

He lacked specialized training in "high" rigging but, contrary to hotel safety policy, was instructed to climb to the ceiling of the hotel's Hollywood Theater to help remove sound equipment, state records showed.

There, he was instructed to walk on suspended planks that lacked railings. He fell almost 40 feet before he could attach his safety harness to an overhead safety fixture that was out of easy reach.

Rodriguez's mother on Tuesday told the Review-Journal she feels vindicated by the federal report. It finds that the hotel and Rhino did not cooperate fully with the state investigation; that the state inspector accepted false statements without probing further; and that the state agency assigned an inspector who had not taken specialized OSHA classes on how to investigate accidents and collect information for criminal prosecution.

"I don't know where this (federal review) will lead," Marychris Rodriguez said. "I only know, from the very beginning, that being hired to load out (pack up) the Tom Jones show as a ground rigger should not have led ... to the train wreck that followed."

MGM Resorts International, which owns the MGM Grand, objected to aspects of the new report.

"Any suggestion that our Com pany did not cooperate fully in the investigation is completely inaccurate," said a statement from Gordon Absher, an MGM Resorts spokesman. "We would also disagree with any suggestion of indifference to this or any situation involving the safety of our guests, employees or others."

But the MGM rigger on duty in the theater that night did not verify the credentials of Vicente Rodriguez, Rhino's rigger, the federal report said. "Also, the MGM Rig ger's statement that he had done this so many times he no longer wore a harness, provides a ( basis) for 'plain indifference' and a classification of willful."

MGM attorneys had not yet fully studied its copy of the letter sent by federal officials to Nevada OSHA, Absher wrote, so the company reserves comment on the findings. "This was a terrible tragedy, and we continue to hope for healing for the family."

In a routine inspection of the same MGM Grand theater three months before Rodriguez died, hotel representatives told a Nevada OSHA official that workers never used the "abandoned" planking that Vicente Rodriguez was trying to access when he fell, records show. The inspector in February 2009 did not scrutinize the planks nor the nearby lifeline set-up.

The accident investigation turned up stage workers who said they walked the planks whenever Jones performed, as the singer brings his own sound cables, which need to be installed and then removed.

Jones has performed roughly four times a year for six years with his own equipment, which suggests that stagehands made 48 trips on the unsafe planking, according to state OSHA's accident file.

But the state OSHA accident investigator never resolved the conflict about whether the planks were used or abandoned. That inspector, the federal report said, already had done four fatality investigations for state OSHA without the recommended OSHA training in accident and criminal investigations.

"There was not enough evidence documented (by the state inspector) to support a classification of 'willful' " violation, the report said. But the federal reviewers wrote that a lack of employer cooperation and the inspector's limited skills "may have prevented" a thorough collection of evidence.

A finding of "willful" would have triggered action by the district attorney and raised the monetary penalties. Through negotiation, MGM Grand lowered its OSHA fine to $19,800 and Rhino to $4,000.

One federal recommendation is that when Nevada employers are "not forthcoming" with information for an accident investigation, state OSHA ought to get it by using subpoenas, taking statements under oath and filing legal action against people who provide false information.

Contact reporter Joan Whitely at jwhitely@reviewjournal.com or 702-383-0268.