Posted with permission from Confined Space, a newsletter of workplace safety and labor issues.

This article by Elizabeth Floyd Mair of the Altamont Enterprise is a rare summary of a court case involving an employer challenge of an OSHA citation.

This case resulted from an employer’s contest of a citation for violations related to the gruesome death of a day laborer who was dragged into a wood-chipper in Guilderland, New York on May 4, 2016. The employer, Tony Watson, owner of Countryside Tree Care, is contesting one willful and four serious citations totaling $141,811 related to the death of Justus Booze, a 23-year old day laborer halfway through his first day on the job.

Read the article. The case describes many of the themes one typically hears in cases like this — a tragic death, blaming the worker, claiming it was an unavoidable accident, and the search for justice:

• The grisly, heartbreaking scene with a co-worker, Brendon John Andres, crying on the witness stand as he described “a weird noise coming from the chipper, like it wasn’t chopping wood” as Booze was dragged into the the rotating blades of the wood-chipper. Andres said he looked down and “seen feet hanging out of the chipper.” Booze’s fiance was expecting their first child.
• The employer’s attorney stopping “just short of suggesting that Booze had deliberately jumped into the chipper in a suicide, by asking Watson about an observation Watson had made to investigators just minutes after the death: “’It was almost like he threw himself into the machine or something, it was that quick.'”
• Watson claiming that the employees had been instructed not to feed wood into the chipper while it was operating despite the fact that OSHA has video of an earlier job where employees were engaged in unsafe practices around the chipper. Another worker had testified that the employer had not provided training.
• Watson claiming that he was overseeing the untrained workers carefully, even though he was cutting wood with a chainsaw and had his back to Booze when the incident happened. According to Department of Labor Attorneys, there was no evidence that Watson intervened once to stop Booze from engaging in unsafe practices.
• The employer’s attorney claiming that there was no negligence and no willful misconduct, no liability, and therefore there should be no penalty.
• A local COSH group, the North East New York Coalition for Occupational Safety and Health, which has met with the Albany County District Attorney’s office twice in an effort to see that employers are held fully accountable — both civilly and criminally — for serious incidents, especially fatalities.

The citation states that:

at the three worksites on May 4, 2016, Watson and his crew engaged in unsafe practices, including leaning into and reaching into the infeed hopper; standing to the left of the wood, on the left of the center line of the infeed hopper; pushing small pieces of wood and branches in by hand; and standing in front of the wood chipper, with their backs to it, while manipulating large tree limbs into the infeed hopper.

According to OSHA

Since 2011, industry workers have suffered a six-fold increase nationally in the number of amputations – from 0.5 per 10,000 workers to 3.3 per 10,000 workers. Since 2015, OSHA has received 19 severe injury reports related to wood chippers with injuries including amputations and head trauma. Of those, five occurred because the chipper pulled fingers or arms directly into the blades, and four occurred when a machine’s belt or pulley caught a body part and pulled it in. The last available report on wood chipper safety shows – from 1996 through 2005 – 39 workers died in wood chipper incidents. Of those fatalities, 78 percent saw workers caught in the chipper and most of the remainder resulted from “struck-by” accidents.

More information can be found on wood chipper safety here.

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