Families say no justice for workers killed on the job
For the families of hundreds of workers killed on the job in Michigan, there is often no justice.
No criminal charges. No civil lawsuits. No costly penalties from Michigan's workplace safety agency. And strict limits on workers compensation.
A yearlong Free Press investigation into more than 400 workplace deaths across the state found a flawed system of oversight with penalties against employers so low they're not a deterrent. And families have little recourse in court because of restrictive rules about bringing suits over workplace deaths and injuries.
"It’s extremely difficult for a family from the state of Michigan to be able to seek accountability for a death in a place of employment," said Troy employment lawyer Shereef Akeel, who won a civil suit against a Barry County dairy farmer over the death of one of two teenage workers, his only successful suit in a workplace death or injury in his 20-year career.
The teens died while cleaning a 3,000-gallon hot and unventilated tank that held fermenting molasses, a cattle-feed additive. Akeel won $1.7 million following a three-day jury trial. The Michigan Occupational Safety and Health Administration (MIOSHA) penalty for the deaths: $7,000.
MIOSHA has investigated more than 400 fatalities since January 2004. A Free Press investigation found:
- Only a handful of deaths resulted in criminal prosecutions.
- Out of 322 closed cases where someone died and MIOSHA found violations, the median total penalty was $2,800.
- Michigan law makes it extremely difficult for survivors to file civil suits against an employer. Families must show the employer knew the worker's assigned task would likely result in injury or death, then disregarded the risk.
- The laws on workers compensation make it tough for relatives to collect benefits. Spouses are cut off when they remarry. A working spouse's income is counted against benefit payments. Some families get only funeral costs.
"When a person dies from a work-related injury, it's obviously a very big deal and a horrifying event for the family. And they have the additional shock of finding out, maybe months later, that the typical fine that the company receives for that death is minuscule," said Dr. Kenneth Rosenman, a Michigan State University professor who studies workplace fatalities across Michigan.
Bart Pickelman, MIOSHA's acting director, said the agency is "strongly committed" to worker safety and noted that since 2011, fatalities under its jurisdiction are down 22%.
Even when someone is killed at work, critics say MIOSHA isn't aggressive enough in citing employers for violations.
Richard Mason was watching TV when he heard a loud thud from the bedroom upstairs. His longtime companion, Mary Potter, had fallen out of bed in the home they shared, a day after the 71-year-old woman was slugged in the face by a resident of a group home where she worked, earning $8-$9 an hour.
Mason got her back in bed. But a few minutes later, he heard another thud. He got Potter back in bed again, and lay down with her.
"When I couldn’t wake her, I called the ambulance. They had her on life support for a day but she was already brain-dead," said Mason, 77.
The Clinton Township woman died in February 2014 of blunt force trauma to her head. According to a police report, Potter was assaulted — unprovoked — by a 54-year-old man with Down syndrome.
Eric Smith, Macomb County prosecutor, said the man was charged with second-degree murder but a court dismissed the case after he was found to be permanently incompetent.
MIOSHA cited Macomb Family Services, which operates the Macomb Township home for adults with developmental disabilities, for two record-keeping violations: failing to report the death within eight hours and failing to keep a log of work-related injuries. It proposed $7,000 in penalties and settled for $1,680.
It did not cite the agency for failing to provide a safe workplace, which might have resulted in a willful violation with penalties of up to $70,000 and a referral to the Michigan attorney general for possible criminal prosecution.
MIOSHA said the case didn't meet federal OSHA criteria for such a citation.
Macomb Family Services officials did not return repeated phone calls seeking comment.
In contrast, Alaska proposed $75,000 in penalties against an assisted living facility where an employee was beaten and strangled by a resident — a $70,000 willful violation for failing to provide a safe workplace and a $5,000 serious violation for failing to promptly notify the department of the death.
While the case remains open and penalties could be negotiated down, Alaska's proposed penalties are 10 times higher than what Michigan initially sought in Potter's case.
Mason said Potter was a petite woman — just 5-foot-2 and 105 pounds — and she and other female workers in the group home were afraid of the resident who hit her.
"He'd have these fits — punch holes in the wall," Mason said. "Two weeks before, he threatened Mary with a pair of scissors."
Mason, a piano player who entertains in senior homes, met Potter at a singles dance. They had been together for about seven years.
"We figured we had another five,10 good years together. It didn't work out that way," Mason said. "I miss the hell out of her."
It isn't unusual for MIOSHA to settle cases for just a few thousand dollars even when an employee is killed. It was a hard lesson for Nicole Boone after her father, Sherman Holmes, died in the woods in northern Michigan.
Since 2004, MIOSHA proposed $3.5 million in penalties in cases where employees have died on the job. The agency settled those cases for $1.75 million.
Holmes was a soft-spoken man who drove a bus and did maintenance for Pine River Area Schools for 35 years until his retirement in May 2010, when he went to work at K&K Forest Products in LeRoy.
"His true love was being in the woods and logging," said Boone, 38, of Findlay, Ohio. Months later, in February 2011, Sherman Holmes of Tustin was dead at 55, hit in the head by a falling, 75-foot tree in Osceola County. He wasn’t wearing a hard hat.
Boone was shocked that while MIOSHA cited K&K with three serious violations, including failure to provide hard hats and proper training on the equipment, it sought just $1,525 in penalties.
"When I got the report and we saw that, we were speechless," Boone said. K&K "made more off the trees that were cut down and moved out of there that day than what they had to pay in fines for his death. That part was very hard to accept."
Boone said she and her sister didn't want a penalty so big that it would have put the company out of business.
"But it's hard to see that MIOSHA felt his life was only worth $1,525. ... That his life was valued at so little."
According to the police report, Holmes and two coworkers were in the woods on a Tuesday afternoon in early February. As the tree came down toward him, Holmes tried to run away, throwing his chain saw to the ground. His coworkers used it to get the tree off him, and when a sheriff's deputy arrived, Holmes was on his back, the snow around him stained with blood, no hard hat in sight.
K&K told MIOSHA that while it had hard hats, it had no system to ensure workers actually wore them, according to MIOSHA records.
Following the accident, K&K warned employees they would be dismissed for failing to follow proper procedures. It also gave its safety foreman authority to send workers home if they showed up without protective equipment.
Years after Holmes' death, the MIOSHA penalty still stings.
"When it's so low, it's another slap to the families that are already going through a loss," Boone said.
Because Holmes had no minor dependents, the only workers compensation the family received was $6,000 toward funeral expenses. Boone said she heard it was difficult to sue in Michigan, so she and her sister decided "it was better to advocate for safety ... to use our time and energy that way."
MIOSHA said its records on K&K have been purged but it has no reason to believe its penalty calculations were improper. K&K officials did not return repeated phone calls.
Michigan is one of 21 states that operate their own workplace safety agency for public and private sectors. Some of the other states are much tougher than Michigan in levying penalties when a worker is killed.
Minnesota sets minimum penalties when a violation causes or contributes to a death: $25,000 per serious violation and $50,000 per willful violation. In contrast, Michigan has a $200 minimum penalty for a serious violation and a $5,000 minimum penalty for a willful.
Willful violations are issued when an employer is plainly indifferent to employee safety — for example, excavating a trench without protection against a cave-in.
Serious violations are issued when an employer fails to protect against workplace hazards that could cause an injury or illness most likely to result in death or serious harm. Examples include no eye protection for flying particles and corrosive liquids or welding near flammable liquids.
"I can't think of a more insulting thing than to tell someone, 'Your spouse's life was worth $1,500 in fines. It's offensive," said Minnesota Sen. John Marty, who sponsored the legislation setting the minimum penalties more than a decade ago. "That’s insulting to the victim’s family. So I say both for the dignity of the person who died, for justice for them, it ought to be significantly more."
Marty, a Democrat from Roseville, a suburb of St. Paul, said he decided minimum penalties were needed because the state's workplace safety agency was negotiating steep reductions for employers whose negligence caused the death.
"The end result of the death is no different than if the employer took a gun and shot the person," Marty said.
One case that got his attention was the death of a worker who fell into a cheese grater at a dairy cooperative.
"They could only find a few shreds of bones or skin, all grated into this cheese," Marty said.
While Minnesota sets minimum penalties, the state legislature in Hawaii raised maximum penalties for the state's Occupational Safety and Health Division, or HIOSH, by 10% in 2011 "to have a deterrent effect," said Bill Kunstman, spokesman for the Hawaii Department of Labor and Industrial Relations.
Penalties for a serious violation are now a maximum of $7,700 and penalties for a willful violation are now a maximum of $77,000. HIOSH routinely seeks the maximum when it finds serious violations in a fatality. For example, it issued seven serious citations, and sought the maximum for each, in the 2014 death of a worker who fell 30 feet through a skylight. HIOSH proposed a total of $84,700 in penalties; the amount was later reduced to $50,000.
Hawaii's median penalty in closed fatality cases in fiscal 2014 was $26,100.
Kunstman said organized labor proposed the penalty increases, and the department supported the legislation. The last time penalties had been increased was in 1992.
Alaska doesn't negotiate down penalties as much as Michigan in cases involving fatalities or amputations.
In recent cases, it has proposed costly penalties, putting employers on notice that it will crack down on egregious violations.
In December, it announced it was seeking $560,000 from a construction company whose 23-year-old worker was partially buried in a trench collapse and then mangled by two excavators.
"It helps to get the word out," said Grey Mitchell, director of labor standards and safety for the Alaska Department of Labor and Workforce Development. "If the penalties are significant ... those large amounts get attention and can motivate change."
The federal Occupational Safety and Health Administration, which oversees private-sector worker safety in states that don't have their own plans, has proposed higher penalties in cases involving fingertip amputations than Michigan has sought in most fatalities over the past decade. For example, OSHA proposed penalties of $45,500 in March in the fingertip amputation of a Kroger butcher in Cincinnati and penalties of $41,504 in the fingertip amputation of a worker at a wire manufacturer in Jacksonville, Fla.
Since 2004, MIOSHA has proposed penalties of more than $40,000 in fewer than two dozen fatalities.
In Michigan, criminal prosecutions of workplace deaths are rare.
The maximum fine for causing a worker's death is $10,000 and one year in prison for the first offense and no more than $20,000 and three years for a second offense.
MIOSHA refers fatalities with a willful violation to the attorney general's office. Since 2004, out of 418 deaths investigated by the agency, it referred 14 for prosecution.
Just three were prosecuted criminally. One of those cases was dismissed in court before trial. The other two employers got the $10,000 criminal fine for causing a worker's death. The rest either paid MIOSHA penalties ranging from $16,250 to $125,000 or remain open.
No one went to prison.
Former Attorney General Mike Cox said MIOSHA cases are difficult to prosecute. The state must be able to prove, beyond a reasonable doubt, that an employer willfully violated the state's occupational safety and health act, and judges or jurors may be more forgiving with an employer whose worker died doing a dangerous job such as trench excavating than "someone shooting off a gun at a crowded party."
"Someone killed by a ricochet, most people would say that’s willful," Cox said. "But if you’re building a trench ... excavating, those are more dangerous situations. To show someone should have known that whatever caused the death would cause the death, it's a lot higher factual burden and legal burden.
"It isn't like the guy is showing off a gun in a crowded bar, it's a situation where people are in a precarious work condition ... 20 stories off the ground, in a trench doing excavation, it's inherently more dangerous," Cox said.
Filing a civil lawsuit against the employer is often just as difficult.
In Michigan, workers compensation is considered the "exclusive remedy" when an employee is killed or injured at work, which effectively prohibits lawsuits against employers.
The only exception: when an employee is injured or killed as a result of "a deliberate act of the employer and the employer specifically intended an injury." The law goes on to say: "An employer shall be deemed to have intended to injure if the employer had actual knowledge that an injury was certain to occur and willfully disregarded that knowledge."
It's an almost insurmountable bar for most families who have lost a loved one at work.
"It's an incredibly difficult hurdle to overcome, to sue an employer for a serious injury or a fatality," said Akeel, the lawyer who sued Yankee Springs Dairy and its owner, Paul Lettinga, over the death of one of two young farmhands.
Victor Perez, 18, and Francisco Martinez, 17, died while cleaning out a 10-foot-tall, 3,000-gallon tank that held decaying molasses to prepare it for a delivery of fresh cattle feed additive.
The teens had to climb a ladder to the top of the tank and then slide through an opening 16 inches in diameter. The boys were found facedown in 6 to 8 inches of a lumpy, foul-smelling liquid inside the tank. The medical examiner said the deaths were caused by asphyxia because of a lack of oxygen.
The silo had a hazard warning sign that said "DO NOT enter tank without first taking PROPER PRECAUTIONS." Akeel said a MIOSHA official testified at trial that the tank was not meant to be entered because it didn't have both an entrance and an exit.
Akeel said a photo of the silo showed the jury "how high it was and how small the hole was on the top." Also important: a sheriff's deputy testified that Lettinga told him that when the boys complained it was hot inside the tank, he said they could take turns inside the tank to avoid overheating.
The family of the second teen sued Lettinga and the farm in federal court. U.S. District Judge Gordon Quist, in ruling that the case could proceed, said Lettinga had testified that the tank "was not designed for anybody, for any human, to go in."
Quist noted the testimony of the sheriff's deputy, who said Lettinga told him the boys could take turns inside. Quist also cited the testimony of a farm employee who said Lettinga watched him help get Martinez out of the tank with a rope, and that Lettinga said nothing. The same employee testified that when he found Martinez inside the tank, Martinez said he was in the tank because Lettinga told him to clean it.
The teens died on a warm July evening in 2010 on the farm in Middleville in west Michigan.
MIOSHA cited the farm with just two violations: failure to provide a workplace free of recognized hazards likely to cause death or injury, and failure to train and inform employees about the hazards of nonroutine tasks such as tank cleaning.
MIOSHA settled with Yankee Springs Dairy for $7,000. And because MIOSHA did not cite the farm with any willful violations, the case was not referred to the attorney general for possible criminal prosecution.
MIOSHA said the farm's owner, Lettinga, denied knowing the teens had entered the tank where they died and told the agency that he had instructed them to clean the tank from the outside only. MIOSHA said it was unable to document a willful violation.
Lettinga and his attorney did not return calls for comment.
Martinez's family settled their case. Perez's parents, Jose and Leticia Perez, won their case in 2015, five years after they buried their son in Mt. Hope Cemetery in Barry County. He was afraid of the dark, so his parents surrounded the grave site with solar-powered lights.
"He wanted to go into the Army and I told him no because I didn't want to lose him," Leticia Perez said, her voice trailing off.
It's been two years since Angel Scharenbroch's husband, Russel Scharenbroch, was killed at Grand Rapids Plastics, and she still hasn't been able to file suit. She's struggled to find a lawyer to take her case, even after MIOSHA proposed penalties of $558,000 against the company, the largest in a fatality in more than a decade.
"I have tried and tried and tried," she said. "It's because of the bar in Michigan. I contacted about a dozen lawyers." She was rejected again on Thursday, when a lawyer told her suing would be a "lost cause."
"Emotionally it’s been a nightmare for myself and my children," she said.
Scharenbroch’s husband was killed after entering an injection molding machine to clean it. Angel says she can't understand why no one saw her 6-foot, 200-pound husband inside the machine before someone turned it on, crushing him to death.
MIOSHA's case against Grand Rapids Plastics remains open, but whether it collects on any penalties is another question: The company began laying off workers in February after Fiat Chrysler Automobiles canceled all orders. In April, the company announced it was shutting down.
Grand Rapids Plastics made parts for the slow-selling Chrysler 200.
Angel Scharenbroch also is wrestling with workers compensation. Her lawyer, Garrett TenHave-Chapman of Grand Rapids, said the workers compensation company handling her claim has calculated benefits based on the couple of months her husband worked at Grand Rapids Plastics after returning from a monthlong layoff, instead of his entire five years, which would result in a higher payment.
"She's just squeaking by," TenHave-Chapman said.
TenHave-Chapman said most employers will overlook a layoff in calculating benefits.
Angel and Russel lived on 5 acres in Mecosta County where Russel raised chickens and dreamed of adding pigs and sheep.
"He wanted the simple little farm life ... our own little piece of property out in the middle of nowhere. And he enjoyed all of it. The hunting, the fishing, the farming. He was a family person. I celebrated my fifth wedding anniversary the month after he died," she said, sobbing.
For some families of workers killed on the job, there's one final insult: employers that don't pay their MIOSHA penalties, small as they may be.
"That's disgusting," said Karen McMaster of Hartland Township when told by the Free Press that the MIOSHA penalty had not been paid in the death of her husband, Robert McMaster. "I'm just beside myself. It's not fair. It hurts."
Karen McMaster had just booked a room at a casino in Detroit to celebrate the couple's 14th wedding anniversary when she got a call that Robert had been seriously injured on a job site in the Village of Wolverine Lake and was on the way to the hospital.
McMaster was injured when a truckload of steel guard rails that he was unstrapping fell on him, pinning him to the ground and causing severe head, neck and spine injuries. Their anniversary was the next day.
McMaster had surgery, but couldn't breathe on his own. After five days on life support, Karen McMaster had him taken off a ventilator in November 2013.
MIOSHA cited Whitetail Welding of Fenton with two serious violations: no accident prevention program and no hard hats. It proposed penalties of $4,200 but settled with Whitetail for $2,100.
McMaster called the penalty nonsense. "I've got a lot of hard feelings."
The owner of Whitetail did not return phone calls.
Similarly, Brent Cameron's employer didn't pay its MIOSHA penalty after he was killed reroofing a home in Farmington Hills for a St. Clair Shores company. The roof was steep and icy that day in January 2014. Yet Cameron had no harness.
He slipped, fell 20 feet and died of blunt head trauma, one of six people killed in a workplace fall in Michigan in 2014. Falls are one of the most common and preventable causes of workplace deaths.
MIOSHA cited Step Above Home Maintenance with six violations, including failure to provide a harness and no accident prevention program. An agency inspector interviewed the owner, Jeremy Weiss, who acknowledged he had no fall protection plan and no one on the crew with first aid training, both MIOSHA requirements.
Step Above did not challenge MIOSHA's proposed penalties of $7,000. But it didn't pay up either, according to MIOSHA, which referred the debt to the Michigan Treasury Department for collection. Weiss told a Free Press reporter he would have to "check the records" when asked about the nonpayment, then hung up.
For Cameron's father, Fred Cameron of Warren, the penalties were not tough enough.
"It should be more than $7,000. It should have been a lot more," he said. "Everyone on that job site should have had a harness and been tied off ... so if they do fall it opens like a bungee."
He said the state should go after Weiss and Step Above to collect the penalty. "Take away his trucks so he can't work ... confiscate his equipment for failure to pay."
Contact Jennifer Dixon: 313-223-4410 or jbdixon@freepress.com
When to investigate?
Approximately 130 people died from work-related injuries in Michigan last year, according to preliminary numbers, but the Michigan Occupational Safety and Health Administration investigated only 29 of those fatalities.
MIOSHA typically looks at about one-third of workplace deaths, said Dr. Kenneth Rosenman, a professor of medicine at Michigan State University who oversees MSU research into worker fatalities in the state.
- The agency investigates workplace fatalities involving private-sector workers and state and local government workers, including firefighters.
- The state does not investigate deaths involving federal workers, Postal Service employees and the maritime industry. Federal OSHA handles those cases.
- Federal agencies investigate other kinds of workplace deaths. A mine collapse, for example, would be handled by the federal Mine Safety and Health Administration, while the National Transportation Safety Board handles plane crashes and other transportation accidents.
By the numbers
More than 4,800 workers died on the job nationally in 2014, the highest annual total since 2008, according to the most recent data available from the federal Bureau of Labor Statistics. In Michigan, 143 workers were killed.
According to the bureau, construction work accounted for 899 fatalities, a 9% increase from 2013 and the largest number of deaths in private-sector construction since 2008.
The year was especially deadly for workers over the age of 55. The bureau said 1,691 workers in this age group died in 2014, the largest number ever for these employees.
Roadway incidents killed 1,157 and accounted for 24% of all workplace deaths, the largest single cause.
Of the 2014 workplace fatalities in Michigan, transportation incidents were the leading cause with 51 deaths, followed by workplace violence caused by another person or an animal, such as a cow mauling a farm hand, at 32. Another 24 workers died in falls, slips and trips, and 22 were killed after coming into contact with equipment or other objects. Exposure to harmful substances killed 11, and fires and explosions killed three.
Minimum penalties
Michigan Sen. Curtis Hertel Jr., D-East Lansing, is sponsoring legislation to set non-negotiable minimum penalties for a serious or willful violation that causes or contributes to a fatality.
Under his plan, a serious violation would have a minimum penalty of $18,000 and a maximum penalty of $36,000. A willful violation would have a minimum penalty of $36,000 and a maximum of $100,000.
"I hope that it works as a deterrent," Hertel said of the legislation. "Most of the cases in this state, the penalties have been negotiated down and I don't know how much of a deterrent it is. It's about protecting those workers who work in oftentimes dangerous situations."