GUILDERLAND — Three-and-a-half years after a day laborer died tangled in a woodchipper, a judge from the United States Occupational Safety and Health Review Commission has ruled that his employer, Tony Watson of Countryside Tree Service, willfully violated safety regulations in allowing his workers to place trees and brush into a running woodchipper without proper training or supervision. 

Justus Booze was working in a Guilderland yard his first day on the job when he died. He was 23.

Administrative law judge William S. Coleman upheld all of the determinations of the violations, but lowered the fines by 60 percent. Even reduced, the fines total $66,986.

Coleman made the adjustment, he wrote, because of Watson’s “very modest financial means” so that it would not be an “unduly burdensome” penalty.

Matt London, executive director of Northeast New York Coalition for Occupational Safety and Health, which provides health and safety training to workers, said that, as of 2014, the median OSHA fine in a case in which there was a fatality was $5,050. He added that his organization uses Guilderland’s Watson case in its training as “a horrible local example of how preventable most of these cases are.” 

Booze had agreed to be paid $60 for a day’s work on May 4, 2016, in a casual arrangement set up by a friend who worked for Watson. Booze thought he and his family — fiancée Kristen Hickey and her three children — could use the money. He had “kind of hesitated” about whether to take the job, Hickey told The Enterprise, because “he had never done that kind of work before and wasn’t sure he could handle it.” 

The Sept. 16 decision is the culmination of an OSHA investigation that led to Watson, the sole proprietor of Countryside Tree, being charged with five separate violations, four of them “serious” and one “willful,” and being fined a total of $141,000. The bulk of the fine resulted from the willful violation, allowing untrained employees to feed a woodchipper, despite knowing that this brought a risk of injury or death.   

Watson was unable to come to an agreement with OSHA in informal conferences, and a three-day OSHA trial was held in November 2017, with Coleman coming from Washington, D.C. to preside. 

Hickey said this week that she is glad the judge affirmed Watson’s responsibility for what happened to Booze. She is sorry to hear, she said, that Watson’s business was not shut down. “I don’t think he should be running a business,” she said.

Three-and-a-half years after Booze died, Hickey said, “The pain will never get easy. We miss him awfully.” 

Hickey takes medicine for post-traumatic stress disorder, anxiety, and depression, she said, and her children are in counseling. Her now-10-year-old daughter confided in her recently that Booze still tells her goodnight and “I love you” every night. 

“I don’t think anything will replace his life but I do believe what Tony Watson did should be brought to attention and he should be punished for this,” Hickey said.  

She added, “I’m still upset over the fact that Tony has yet to reach out and chat with me about anything or even offer a simple ‘sorry.’”

Watson did not return calls from The Enterprise, asking for comment; neither did his lawyer, William Fanciullo of Slingerlands. Watson’s company now appears to go by the names 518 Cut Tree and 1-800-Cut-Tree. 

Two years ago, at the conclusion of the OSHA trial in November 2017, Watson said of the trial, “It was kind of a waste of the government’s money. All the money they spent, getting the judge here and doing all this. They could have lowered the fine amount.”

Decision 

Coleman found that OSHA’s earlier rulings had been correct, that Watson had failed to provide his workers with personal protective equipment — helmets, leg chaps, gloves, and protective eyewear — or teach them how to use it, and, in the most serious charge, the one deemed “willful,” allowed workers who had not been properly trained to feed the woodchipper, and to feed it in many different ways that were unsafe.  

Coleman explained in his decision that the meaning of the word “willful” does not require “a showing of evil or malicious intent,” but means that an employer knew of the risk to employees and knew how to take action to avoid that risk, but did not. 

The five-man crew, including Watson, had been scheduled to take down trees at three homes that day. Watson had two experienced workers with him that day, and two inexperienced workers, including Booze. Watson was a working member of the crew and testified at the trial, as The Enterprise reported earlier, that his safety method was, “I try to do, basically, everything myself.” 

Coleman wrote in his decision that, as the employees waited outside Watson’s house that morning for him to emerge and take them to the first job site, one of the experienced workers showed Booze the control bar and the “last chance” cables that hang just before the infeed wheels and are meant to stop the wheels in an emergency. 

That worker showed the two new men both of those features without any direction from Watson, the worker said on the stand, adding that knowing about those two features wasn’t enough to ensure safe operation, but was just information on “some safety features of the chipper in hopes that he wouldn’t need to use them.” 

As The Enterprise reported earlier, that same worker said on the stand that he showed Booze and the other worker those features because he had had incidents before with Watson’s chipper, although he did not elaborate. And he said that the only guidance Watson gave when the crew set out that morning was “guiding us to the [job] site.” 

Booze was pulled into the chipper just a few minutes into the third job. He had been standing next to the chipper a minute before, people testified, and no one saw what he was doing immediately before he was pulled headfirst, among branches, into the machine. 

When the machine was turned off, the bottom half of Booze’s body was visible in the enclosed area just before the infeed wheels, and only his feet were still outside of the enclosure, hanging over the feed tray. 

In his decision, Coleman referred in detail to surveillance footage from the second home that showed the men working; it was the only house of the three they worked at on May 4 that had cameras outside. 

At that second site, Coleman wrote, Booze was seen doing things that, had he been trained, he would have known were dangerous, including: 

— Gathering brush from the ground in or near the “drop zone” without a helmet on as an experienced worker positioned up in a tree cut and dropped branches ; 

— Wrangling a large branch, together with the other inexperienced worker, while standing with his back to the chipper; 

— Numerous times, feeding branches from behind the chipper, where it would be impossible to reach the chipper’s control bar, rather than from the side of the machine; 

— Stepping over a branch while it was moving forward into the chipper; and 

— Throwing a handful of brush onto the feeder tray and then using his hands to shove the brush into the infeed hopper until the feed wheels grabbed it, instead of placing it on top of large branches heading in or to push it in with a long paddle. 

The woodchipper’s manual, safety video, and safety decals are all clear about the danger of using a chipper without proper training, Coleman wrote. 

Coleman said that the manual shows decals that may or may not still have been affixed to Watson’s machine or readable, including, in all-capital boldface letters, “Danger! Brush chippers are very dangerous machines to operate! Read & Believe this warning decal!” The warning continues with more specifics, and key words like “very dangerous,” “many accidents” and “death” in bold capital letters.

Another decal, Coleman wrote, warns “Hand/arm and DEATH injuries are caused by negligently reaching far into the infeed hopper” and continues with more details, concluding in bold capital letters: Do not rely on the ‘last chance stop’ to disobey the operator rules! You will find yourself in trouble!”

Coleman wrote that the manual contains instructions including these: 

— “WARNING! Always stand to the side of the infeed hopper when inserting material. This will allow you to turn away from the wood, and walk away, without passing through the material”; and 

— “DANGER! Do not let anyone operate or maintain this machine until they have thoroughly read this manual.”

The machine Booze was killed in was a Bandit 250.

All Bandit 250s come with an operator’s manual and safety-training DVD, Jerome Galante, general counsel for Bandit Industries, told The Enterprise earlier. The manual, he said, is tethered to the machine and cannot be removed.

Watson bought the chipper new from Bandit in 2004, Galante said, and it would have come with the manual and safety DVD, which Galante said can be viewed in English or Spanish.

“False statement to the police” 

Watson’s instructions to Booze and the other inexperienced worker shifted as the day went on, from saying they could place materials on the feed tray when the chipper wasn’t running and let the other workers feed it in, to telling them they could feed material in as long as the more experienced workers were nearby. 

After 9-1-1 was called and the police arrived, Coleman wrote, Watson had told the police, about Booze, that “all day long [the decedent] was cleaning up branches and raking up debris” and that he “was not supposed to be putting things in the chipper.” 

Coleman wrote, “It is reasonably inferable from Watson’s false statement to the police that he actually recognized that neither of the new employees should have been permitted to feed the chipper on the day the decedent was killed, because neither of them had received an adequate orientation and instruction on the safe operation of the chipper or had demonstrated a full understanding of, and proficiency in, those safe operating procedures.” 

On the stand, Watson had testified that he had not seen his inexperienced employees engage in unsafe practices, and also expressed chagrin that his more experienced employees had not stopped them from doing so, even though he had not told the two experienced men to stop them, Coleman wrote. 

Coleman wrote that, on the video from the second house, Watson was seen working 20 or 25 feet from the inexperienced workers and at one point looked toward them as they fed the chipper; if he had not seen them, the judge wrote, that was only because his supervision was inadequate. 

The administrative law judge also wrote there is no evidence that having an experienced worker be “nearby” an inexperienced worker, if unsafe practices are being used, would be of any use, “particularly in light of the swiftness in which a worker may be caught up in material being pulled into a running chipper.” 

Fines 

The total of $17,102 for the serious citations related to protection equipment had already been reduced by 60 percent in the original decision, Coleman wrote, and he kept that penalty unchanged. 

The maximum allowable penalty for a willful violation on May 4, 2016 was $124,709, Coleman said, and the minimum was $8,908. 

Coleman noted that Watson had testified at the OSHA trial that his only significant assets are his house, with a high mortgage, and the vehicles and equipment related to his business. Although Watson had not shown any evidence of his financial situation, Coleman found him credible. Watson had also said at the trial that he generally had only $2,000 or $3,000 in his checking account and needed to make payroll out of that. 

Watson had been given the maximum penalty allowable for a willful violation. 

Coleman wrote that not adjusting it to take into account the size and “very modest financial means,” even in the case of a willful violation resulting in a fatality, can result in an “unduly burdensome” penalty. 

Reducing the penalty for the willful violation by 60 percent — the same percentage as was used earlier for the significant violations — Coleman wrote, would be appropriate, taking into account Watson’s financial situation, but would still serve “the interests of specific deterrence.” 

London of NENYCOSH said, “Given the size of the business, this is substantial. If this were a large corporation, a penalty of $70,000 would be small change.” 

Fines collected by OSHA are deposited with the United States Treasury. OSHA does not have authority to keep the funds to use for agency operations, the agency’s website says.

The purpose of the fines, according to James Lally, a regional U.S. Department of Labor spokesman, is to encourage this employer and other employers to comply with safety and health standards, and to serve as a deterrent from exposing employees to hazards in the future. 

OSHA has a unit, Lally said, that collects unpaid penalties. 

Lally also said that Watson provided abatement documents to OSHA showing that he has corrected the violations.

Into the future

 Asked what she hopes other tree-company owners will do in the future, Hickey said, “Take this seriously! I can’t say set this as an example, because who would want to use a death as an example? People need to be cautious and no matter how long or short of your time with tree work, anything can happen with one screw-up.” 

Hickey still keeps Booze’s ashes on her nightstand. There are pictures of him all around her house. 

“He was my soulmate,” she said. They complemented one another. 

He was a “social butterfly,” she said, and her “backbone” who gave her support and encouragement whenever she needed it. She brought him “calm and peace” at times when he would get too worked up. “We leveled each other out,” she said.

Her three children considered him their stepfather, she said. 

After years of darkness, Hickey has found some reason for joy again: She is engaged to be married. Her fiancé, David Lavertue, lost his girlfriend, who was also the mother of his now-4-year-old son, to kidney cancer. Hickey and Lavertue understand and are supportive of one another’s grief. 

They plan to wed a year from now, on Oct. 17, 2020.

“We keep each other going and understand that it is OK to miss our loved ones and support each other on the death anniversary or birthday and make the day full of memories,” Hickey said.