(NEW YORK) -- February 22, 2008, began like any other day for José Herrera. A seasoned contract pipe fitter 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, and for 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. The company 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.
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