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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.”
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