The cost of an unsafe workplace HIgh for a worker; cheap for an employer. Warwick Sabin
Updated: 11/2/2006 How much is a man’s life worth? Two Danville families have been struggling with that question since 19-year-old Jeremy Foster died in a sawmill accident more than two years ago.
The experience has shaken their faith in laws that are supposed to ensure occupational safety. Foster is survived by his father and stepmother, Jeff and Becky Foster, and his mother and stepfather, Vicki and Chris Ellison.
On the night of Oct. 1, 2004, Foster showed up for work at the Deltic Timber plant in Ola where he worked as a chipper attendant. His job was to remove wood chips and sawdust from a chipping machine.
As usual, he worked alone. No one witnessed his accident that night, but a report filed by the Ola Police Department describes what happened, based on testimony from co-workers who found Foster’s body:
“Co-workers stated that Foster’s sweatshirt had got caught and tangled up in the tail spool. Co-worker said that Foster had apparently grabbed the shirt and tried to free himself …. Foster’s left glove apparently got hung inside the tail spool, possibly when he was trying to free himself.
” Foster died of asphyxiation, strangled as his sweatshirt — caught on a circulating machine shaft — wrapped tighter around him.
Normally, a machine operator in a similar situation would have been able to slide off the shaft. But the shaft that caught Foster’s sweatshirt had a piece of metal welded to its end, preventing Foster from freeing himself.
In January 2005, the U.S. Occupational Safety and Health Administration (OSHA) cited Deltic for a “serious” violation, noting:
“In the chipper tender area, the projecting end of the tail spool shaft on the edger saw dust chain conveyor did not present a smooth surface. A metal bar had been welded to the end of the shaft, which created a catch point. On or about 10/1/04, an employee’s shirt was caught on and twisted around the metal bar and rotating shaft, resulting in the death of the employee.
” In effect, Deltic’s unsafe workplace was found responsible for Foster’s death. OSHA initially fined Deltic $4,500 for the violation, but in February 2005 the penalty was reduced by half, to $2,250. OSHA Little Rock area director Paul Hansen told the Arkansas Democrat-Gazette that the fine reduction was intended to “get the items corrected and have the employees working in a safe place more quickly,” but Deltic already had made the correction.
The $2,250 ended up being the only cost to Deltic for Foster’s death.
“Deltic walked away from negligent homicide,” Jeff Foster said. Craig Douglass, a spokesman for Deltic, an Arkansas-based timber and land development company, said, “OSHA did a full investigation. In fact, as I recall it, any recommended corrections to the facility were made while the OSHA folks were there.
” Asked whether the company felt responsible for Foster’s death based on the OSHA report, Douglass said, “That’s not something I can comment on because the company has not been contacted by the parents of Mr. Foster with regard to the case.
” There is a three-year statute of limitations on liability claims in cases like this one. Foster’s father, Jeff Foster, says he has not pursued a lawsuit against Deltic on the advice of an attorney, because even though Jeremy Foster worked for a temporary personnel agency, rather than for Deltic itself, Deltic can claim him as an employee in order to avoid liability outside of benefits provided under workers’ compensation law for on-the-job injuries.
“The way workman’s comp laws in Arkansas work, they protect the company,” Jeff Foster said. “If Jeremy had just been hurt, we could have got a large settlement. But since he died, we didn’t.” If a worker killed on the job has dependents, benefits may be paid to them, but Foster had none. Little Rock attorney Gary Davis advised Foster’s family that “only a workers’ compensation claim would be available under circumstances due to our ‘exclusive remedy’ law in Arkansas.
Deltic Timber would, by use of the ‘dual employment doctrine,’ likely be able to also take advantage of this exclusive remedy provision of Arkansas law. In other words, Deltic will be allowed to declare themselves as Jeremy’s ‘employer’ for purposes of the law which returns us to the limits of workers’ compensation. … Since Jeremy had no dependents, there is really no monetary gain to be had from even pursuing a workers’ compensation claim.
” While Jeremy was alive, Deltic did not treat him as a company employee. According to his parents, Jeremy Foster did not clock in, as a Deltic employee would. He signed in at the guardshack, like a contractor. And his temp agency paid him, not Deltic.
The temp agency covered the costs of Jeremy’s funeral, which totaled $5,290. “I don’t care about workers’ comp,” Foster’s mother, Vickie Ellison, said. “I want Deltic to be held responsible. They killed an employee due to negligence. You can replace an employee, but you can’t replace a son.
If OSHA had fined them a decent amount, if they had been punished a little more, it would have helped our feelings. If they had showed compassion, talked to us.” In its January 2005 report, OSHA cited several other “potential hazards” related to Foster’s death at the Ola facility. For example, “The top side of the elevated saw dust chain conveyor was not covered or enclosed and employees would often stand on ladders and reach over the conveyor while it was running to access and clear the jam in the saw box.”
The police report of Foster’s death notes that he was on a ladder when the accident occurred, and he was “hanging by his shirt” when his co-workers found him. “Co-workers said that Foster’s feet were about six inches from the concrete,” the report said. But despite that and three other hazards OSHA named, OSHA area director Hansen wrote, “It is not considered appropriate for citations to be issued for these hazards at this time.” Foster’s parents, meanwhile, point to similar situations in other states where larger fines were imposed.
In one instance, OSHA fined a Russellville, Ala. poultry plant almost $150,000 for a series of violations, including $3,000 for “not complying with required record-keeping procedures.” Vickie Ellison, who works in a chicken plant, said “We’ve all got to follow OSHA rules and regulations. Then you see this and think, why bother? … We’re always saying, OSHA could fine us. It’s safety this, safety that. Makes you wonder.” “It’s like Deltic walked up behind him and literally killed him and got away with it,” Jeff Foster said. “They welded that piece on there. That should make them responsible for what happened. No amount of money can bring Jeremy back, but if laws were written fair, there should be an exception when a company is found at fault. OSHA verified that, but then they ain’t.”