As Kane stood at the controls of a power stacker, a type of forklift that the operator walks behind, other crew members were in the 3½-ft-deep vault maneuvering the straps around the forks and splice box. Kane released the forklift’s brake, he testified, and rotated the throttle to move the stacker truck away from the vault with its payload.

That's when the trouble hit.

Instead of pulling the box up and out of the vault, Kane felt the stacker roll forward toward the open floor edge and saw it tumble in, pinning one of his crew members against the vault wall.

What happened prompted the Occupational Safety and Health Administration to cite and propose a fine against Huen for wrongly modifying the stacker by using the sling and for exposing the workers to hazards because Kane had never been trained to use that stacker model. 

Huen Electric, which is based in Broadview, Ill., didn't concede. The contractor contested OSHA's initial proposed penalty of $23,868 for the two serious violations, arguing its case in a hearing before OSHA Administrative Law Judge Brian Duncan in 2022. The key issue revolved around whether Kane should have been trained on the specific stacker he was operating. Huen argued that Kane's proven skill with similar equipment and his preparation and test operation of the stacker was sufficient.

Construction forklift accidents account for less than one in 20 of all forklift accidents in the U.S. each year, according to recent OSHA data, but construction forklift accidents accounted for one in four of the 67 forklift fatalities in 2022. 

On the night of the museum accident, a rescue was needed.

Quick Response by Firefighters

 Chicago firefighters came quickly and started working to free the worker pinned by a forklift prong and the 6,800 lbs of machinery on top of him. According to the television news reports, the rescue team consulted emergency room doctors at Chicago Medical Center and the firefighters were able to administer pain medication and stop his bleeding during the laborious extraction where a goal was not to cause further injury.

After 45 minutes, the firefighters freed the injured worker and transported him to the hospital with a fractured left forearm and elbow that required multiple surgeries. 

Then began a broader debate about the necessity of machine-specific training.

The crew’s operation that evening was different in several ways from the previous four times Huen workers had removed splice boxes. First, the 5th box was heavier. Kane estimated its weight at around 1,000 lbs based on his experience, but it actually weighed 1,370 lbs—a potentially critical factor. Normally, Huen Electric used a rented pallet stacker for such lifts, but on that day, the machine wasn’t available.

With permission from the museum’s project manager, Kane borrowed the museum’s Toyota 6BWC15 Electric Counter Balanced Stacker Truck, a walk-behind powered industrial truck (PIT) with a capacity of 2,750 pounds. Kane had never operated this specific model before, though during his nearly 30-year-career he had extensive experience with forklifts, stacker trucks and PIT training. To prepare, he spent an hour the previous Friday reviewing the Toyota stacker’s manual and, on the night of the lift, conducted a brief visual inspection, retrieving the stacker from its charging station on the museum's second floor.

Rescuers provided painkiller to the victim while they worked to free him from being trapped by a stacker. Photo: Chicago Fire Dept.

Kane testified he had no idea why the stacker moved forward instead of backward, speculating it was a malfunction when it unexpectedly jumped forward and pinned the crew member against the vault’s opposite wall. The surveillance video confirmed that at 5:20 pm the stacker was stable but by 5:25 pm the stacker was in the vault, its front wheels having crossed the edge.

Huen Electric reported the incident to OSHA that same day. Compliance Safety and Health Officer Anton Stephens spent three days reviewing the site, interviewing witnesses, inspecting the stacker, taking measurements and analyzing surveillance footage. His findings led OSHA to issue Huen Electric two serious violations. One was for inadequate training for Kane  and the other was for making an unapproved modification of the stacker with lifting straps. Huen challenged both and Duncan, the OSHA judge, dropped the improper modification citation.

 Yet Huen argued that Kane did not need formal training on the stacker to have satisfied in a reasonable way OSHA's rules for powered industrial truck operation. Its attorney cited numerous similarities between forklifts and pallet stackers, and Kane, while conceding that there were differences in capacity and load-handling, testified that he had operated pallet stackers not only for Huen but during his previous jobs. According to Kane, in 2017 he was observed operating a pallet stacker during the construction of an Amazon fulfillment center by a qualified trainer who previously trained Kane in forklift operation.

Difference of Opinion

After a trial in November 2022, Judge Duncan vacated the citation for illegally modifying the stacker but he upheld the training violation, saying that Huen failed to ensure Kane’s competence on the specific equipment, despite his experience with similar equipment. OSHA and Huen, which could not be reached for comment, then settled and the contractor agreed to pay a penalty of $11,934.

There is very little wiggle room in the OSHA PIT regulation: employers must prove competence in safe operation "as demonstrated by the successful completion of the training and evaluation." Training must combine formal instruction, such as lectures, discussions, reading and interactive computer instruction, with demonstrations by a trainer and practical exercises. An evaluation is required, too.

David Smith, president of Alpine Engineering and Design in Utah, says it is "absolutely reasonable in the standard to insist that a forklift operator be trained in the specific forklift no matter how experienced the operator is. Every manufacturer is going to do things a little differently.”

“The point of training." says Smith, whose company serves as a expert witness in lawsuits, "is that someone with more experience is there to see that you know the important parts and to document that you in fact were given the information you needed."

“And the general rule is that without documentation,” he emphasizes, the required training “did not happen.”