GUILDERLAND — A local employer’s failure to train or properly safeguard his employees led to Justus Booze’s preventable death in a woodchipper during his first day on the job as a day laborer, the United States Department of Labor’s Occupational Safety and Health Administration announced Monday.

A friend told Booze that Countryside Tree Care in Guilderland needed a few extra workers, his fiancée, Kristen Hickey, told The Enterprise soon after his death. He left for work at 6:30 a.m. on May 4, 2016, and was set to earn $60 for the day. By 1:15 p.m., he was dead. He was 23.

When The Enterprise asked Hickey her thoughts about OSHA’s announcement, she said that no amount of fines could be levied to undo the damage done through what she called Countryside’s “pure negligence.”

Booze’s death could have been prevented “with more caution,” she said. “He should never have been around that machine, period.”

“A lot of employer groups are pretty bad about employee conditions, but the Tree Care Association, on the other hand, is pretty good about saying this is inherently dangerous work that can be made safer with appropriate training and safe practices,” said Matt London, director, North East New York Coalition for Occupational Safety and Health, whom The Enterprise informed about the OSHA fines.

“What OSHA probably found,” London continued, “is that Countryside didn’t even follow his own trade organization’s recommendations.”

The violations

OSHA has announced a total of $141,811 in proposed fines against Tony Watson, Countryside’s owner, for the unsafe conditions that led to Booze’s death. All of the violations are for exposing four workers to deadly hazards at three different work sites, including the one at a home on Placid Drive where Booze was killed.

Watson did not return several voicemail messages asking for comment, and a woman who answered the phone on Tuesday at Countryside, whose mailing address is given in the OSHA citations as 7385 Church Rd. in Guilderland, hung up when The Enterprise asked to speak to him. Watson has had a difficult year. His brother, Alfred Watson, who ran his own tree-care business, died in a house fire at 3825 Carman Rd. in July.

Watson is being fined $124,709 for one “willful” violation that OSHA’s investigation found and $17,102 for four “serious” violations.

Employers have a certain amount of time to contest the fines or argue for a reduction in severity of some or all of the violations. That window, in the case of Watson’s “serious” violations, runs through Nov. 30. The “willful” violation carried an abatement deadline of Nov. 8, but it was unclear, by press time, how Watson had responded to that deadline.

The “willful” violation consists of many parts, all involving failure to ensure that only trained workers used the chipper and allowing employees to engage in a variety of unsafe methods of using it.

The unsafe methods included:

— Leaning or reaching into the infeed hopper,

— Standing to the left of the wood as it went in, left of center when facing the machine (OSHA’s citation does not specify what is bad about this, but a safety video made by the manufacturer of the chipper used in this case, Bandit Industries, notes that branches have a tendency to move toward the left while being chipped, and, so, standing on the right reduces the risk of entanglement);

— Pushing small branches and brush in by hand, instead of with a wooden push paddle; and

— Manipulating large tree limbs while standing in front of the hopper with their backs to the machines.

Considered the most serious type of violation, a “willful” violation is one in which an employer either knowingly and purposely disregards a legal requirement or acts with indifference to employee safety, according to the agency.

“Serious” violations occur, the agency says, “when the workplace hazard could cause an accident or illness that would most likely result in death or serious physical harm, unless the employer did not know or could not have known of the violation.”

The serious violations cited by OSHA brought four fines totalling $17,102, and are for unsafe practices involving protective equipment:

— Exposing workers to laceration and amputation hazards while using chain saws during tree removal. Employees did not wear any leg protection while trimming branches;

— Failing to provide appropriate personal protective equipment or to train employees in how to use it;

— Exposing employees to eye hazards, including wood dust, flying wood pieces, and being struck by branches during tree trimming and while feeding wood into a chipper; and

— Failing to ensure that employees wear helmets despite the danger of head injuries from falling objects.

The announcement of the violations and the fines mark the conclusion of the agency’s six-month investigation of the Placid Drive incident. The other locations where employees were exposed to the same  hazards were on Church Road and Salvia Lane, both in Guilderland, according to the citations.

Dangerous machine

Woodchippers in general are one of the most dangerous machines used in the tree service industry, says a release on the incident from OSHA. Since 2011, industry workers have seen the number of amputations rise six times, 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 woodchippers, with injuries including amputations and head trauma. Five of the injuries happened because the chipper pulled fingers or arms directly into the blades, and four happened when a machine’s belt or pulley caught a body part and pulled it in.

The most recent available statistics show that, from 1996 through 2005, thirty-nine workers died in woodchipper incidents. Of those, 78 percent were workers caught in the chipper, while most of the rest were workers who were struck by objects.

Employers who receive citations, OSHA says, must not only pay fines but also correct the unsafe conditions and post a copy of the violations at the worksite, “to make employees aware of the hazards to which they may be exposed.” The violations must be posted for either three days or until the unsafe conditions are abated, whichever is longer.

Tree-care industry association

“I like to say that the equipment itself it not inherently dangerous. It’s dangerous when used incorrectly,” said Peter Gerstenberger, senior adviser for safety, compliance, and standards with the Tree Care Industry Association, which offers safety training and accreditation to member companies.

“With just a modicum of training and appropriate supervision, the machines can be used safely. Thousands of them are used safely across the country every day,” Gerstenberger continued.

He noted that, until OSHA citations and fines are finalized and a settlement reached, a company still has opportunity to contest citations, and the charges remain allegations.

That said, he continued — noting that he is familiar with this case — it appears as though Countryside may have ignored its responsibility to provide training, hired Booze that day, and “immediately set him to work clearing brush.”

In general, Gerstenberger said, “It would be inexcusable to put somebody behind a woodchipper without any training.”

There are about five or six woodchipper fatalities in the United States each year, Gerstenberger estimated; this figure was higher than the four-and-a-third calculated by OSHA and the just under five reported by the Centers for Disease Control and Prevention. Gerstenberger says the actual number could in fact be higher than his estimate because he tracks these incidents through media accounts, and he, or the media, might miss some.

Gerstenberger estimates that there are about 15,000 tree companies in operation throughout the country. Of those, 2,300, or 15 percent, are members of the association.

Most of the largest companies — including one with 30,000 employees — are members, he said. The bulk of the companies that are not, he said, are very small organizations, “the mom-and-pops,” with “five employees or fewer,” he estimated.

The CDC reports that 57 percent of the number of tree-care workers who have died in on-the-job accidents worked for small companies with 10 or fewer employees.

“So while we represent a small percentage of the employers, we represent a vast majority of the employees,” Gerstenberger said.

Countryside is not, and has never been, a member of the association, Gerstenberger said.

Bandit chippers

The machine Booze was killed in was a Bandit 250.

All Bandit 250s come with an operator’s manual and safety-training DVD, said Jerome Galante, general counsel for Bandit Industries. 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.

The Enterprise watched a Bandit video on safe practices for the Bandit 250, called “Intro / Safety Operating Procedures,” on YouTube.

It contains the warning, “Chippers, as with most machinery, can cause severe injury or even death if not operated and serviced correctly.”

It also says, “It is required that every operator be properly trained in the safety and operational aspects of the chipper involved, prior to him or her actually using it.”

The video advises chipper users to, at all times, maintain personnel and bystander safety as their number-one concern, and to wear personal protective equipment such as safety glasses, hard hat, ear protection, eye protection, face shield, gloves, and shoes. It describes the kinds of clothing that are dangerous because of the hazard of snagging on branches.

The safety video advises having another employee stand by whenever the chipper is being used, “in case an accident should occur,” and also notes that the area around the chipper must be free of all objects, including branches, that could act as a tripping hazard.

All Bandit chippers are equipped with a standard-feature pair of “last-chance cables,” two cords that hang down directly in front of the infeed hopper, Galante said.

Gerstenberger of the TCIA said the cords are designed as a last-ditch opportunity for a worker who is headed toward the hopper to try to stop the machine. They are linked to, and pull on, the stop lever, he said.

He said that there is no hard data on how well these cords work or don’t work. A worker would need to be heading toward the hopper in “the right attitude to be able to reach them, and would need to have the presence of mind to think of it,” he said.

He agreed, though, that a worker would probably also need to have been told about the cords and what they are for.

“The number-one thing for preventing injuries in the tree-care industry,” said Galante of Bandit, “is training. When you have an employer or a small mom-and-pop company that brings somebody on board for a day and says, ‘You want to earn $60? Come on and throw some branches in this chipper without any training,’ that’s when you’re going to get your accident.”

The time and money that Bandit has put into safety is “unbelievable,” said Galante, “because we do not want to see workers hurt.” He continued, “We stress the training, we stress it. But you cannot force people to do things.”

Settling and paying

Abatement and fines are not an either-or proposition, according to James Lally, deputy regional director for public affairs for the United States Department of Labor, New England - New York - Puerto Rico - U.S. Virgin Islands region. Normally the employer must abate the hazards and pay the fine, he said.

Sometimes a fine is lowered after abatement is completed, Lally said, noting that “every settlement is an individual case.” The agency looks at a variety of factors, he said, including the size of the company, the past history of violations, and the employer’s willingness to correct the violations.

Countryside and Tony Watson have no past history of violations, said Lally.

How does OSHA ensure that an employer pays?

If employers don’t pay, Lally said, what OSHA can do is forward the debt to a collection agency. Often, a clause about nonpayment will be built into the settlement, he said; for instance, if a settlement calls for an employer to pay a lowered fine but it isn’t paid by a certain date, the fine goes back to the original amount.

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.

Watson has scheduled an informal conference with OSHA, said Lally. No fines have been paid or are due yet, he said, adding, “We will know more about corrective action such as abatement after the conference.”

Workers’ comp and suing an employer

Watson did not have workers’ compensation insurance at the time of the accident, but has it now, effective Oct. 5, 2016, according to the website of the New York State Workers’ Compensation Board

Virtually any employer — even those with just one day laborer or one unpaid volunteer or even unpaid family member — are required to carry workers’ compensation insurance, according to the New York State Workers’ Compensation Board.

Under the system, an employer pays insurance premiums and also covers medical care and weekly cash benefits to people injured on the job; it also pays death benefits to the worker’s family in the case of a workplace fatality.

The workers’ compensation system started almost a century ago, when workplace deaths were more common. The galvanizing event that brought about reform and helped launch the system, according to the Workers’ Compensation Board, was the Triangle Shirtwaist fire of 1911, in which 146 workers died.

Matt London, of North East New York Coalition for Occupational Safety and Health, called workers’ compensation a “grand bargain” meant to benefit both employer and employee. In exchange for the employer’s ongoing payments and financial responsibility, an employee or the employee’s family cannot sue an employer for liability in the event of an injury or a death on the job.

Watson’s not having had this insurance at the time of the accident would open him up to a lawsuit, said Elizabeth A. Wolff, a personal-injury attorney with Finkelstein & Partners. Wolff said that it is possible that Hickey, who was not legally related to Booze — because they were not yet married, and because New York State does not recognize common-law marriage — might still be able to bring such a lawsuit, if a surrogate court agreed.

The problem, Wolff said, would be that any payout from a successful suit would go not to Hickey and her children, but to Booze’s nearest blood relative. The state, she said, would start to look further and further out for a blood relative; if he has no living parents or siblings, the state would try to find, say, a second cousin or a great-aunt.

“Unfortunately,” Wolff said, Hickey and her children would not see any money from such a suit. If a relative were not found, the money would go to the state, she said.

Hickey’s life now

Hickey moved from Schenectady to Queensbury about a month after the incident, so that she and her children could be closer to family. She has been burying herself in her work, she told The Enterprise, to try to avoid thinking.

She takes solace in any pink sunsets she sees. Pink is her favorite color, she said, and whenever she sees clouds that color, she interprets it as a sign that “he hasn’t left my side.”  

“I’ve even seen angel wings, or feathers,” she said. “I’m a huge believer in signs.”