Theresa O’Hare raged last December at the owner of the Blue Springs plumbing company that employed her son, “D.J.”
Relatives held her back from Arrow Plumbing LLC. owner Ricky Smith as firefighters worked for hours to retrieve the body of 33-year-old Donald J. Meyer from the bottom of a 12-foot trench that lacked the required shoring to prevent cave-ins.
She blamed Smith for what happened that day in Belton. But as the months passed, she found herself seething less as she focused on raising her widower son’s now 9-year-old boy, Ashten, at their home in Oak Grove.
Then this week, anger rose in her again when she learned that Arrow Plumbing had been fined more than $700,000 for workplace safety violations. Not just for Meyer’s death, but also for allegedly failing to take steps to prevent other employees from dying in the same way her son did, suffocating beneath tons of loose soil.
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“I just could not believe it,” O’Hare told The Star. “Why couldn’t this man understand or learn his lesson from the death of my son?”
The company is appealing the fines, a process that can take a year. Reached by phone, both Smith and his attorney declined to comment. Smith confirmed his company remains in business.
The contractor was working on a sewer line at a Belton home when the walls of a 12-foot trench caved in on him.Max Londberg The Kansas City Star
Arrow’s penalty is the second-largest meted out nationwide by the Occupational Safety and Health Administration so far this year against a single employer for allegedly violating workplace safety rules. The only one larger, $1.47 million, was levied against a company in Massachusetts where two employees died, also in an unshored trench.
That company and its owner were also indicted on two charges of manslaughter by a county grand jury. No charges have been filed against Arrow Plumbing.
Fines are typically the government’s response to fatalities that are the result of safety violations. These big OSHA fines, experts agree, were meant to send a message to an industry notorious for flouting workplace safety regulations when working underground.
Dave Redlin, an Overland Park construction safety consultant, said the allegations against Arrow Plumbing are far from an anomaly. Plumbing contractors often cut corners while working underground, he said. “It’s an epidemic.”
Trench-shoring enforcement has been one of OSHA’s top 10 areas of emphasis for three decades, far longer than any other workplace hazard. Yet trench deaths continue at an alarming rate.
The agency said 23 people died and 12 were injured nationwide in trenches in 2016. Through the first five months of this year, the death rate was on pace to surpass last year’s total, with 15 deaths and 19 injuries recorded as of June 1.
In response, the National Utility Contractors Association this summer staged an industry “stand down” to raise awareness about the need to follow safe practices when working in trenches.
The association said employers set aside time during working hours to stress trench safety guidelines at more than 800 job sites in the United States and overseas, including Bagram Airfield in Afghanistan,
Yet to save time and money, companies will sometimes ignore the requirements even after, Redlin said, one of their own workers dies on the job.
Less than half of Arrow Plumbing’s $714,142 penalty (some $294,059) was for the four serious and three willful violations of workplace safety rules that OSHA said occurred on the Belton job site where Meyer died.
Chief among the rules broken, OSHA said, was Arrow’s failure to provide a trench box or other shoring that would likely have prevented the cave-in. Lack of any training in trench safety was another deficiency cited.
The additional $420,083 in penalties were levied for the same number of serious and willful violations found at a second work site. The fines were higher because it was the second offense.
Five weeks after Meyer’s body was recovered, OSHA responded to a complaint at a Kansas City, North, job site.
There an inspector on Jan. 20 observed two Arrow workers at the bottom of a trench that was 8 to 13 feet deep and 2 to 3 feet wide. OSHA regulations require that trenches be shored or sloped if they are 5 feet deep or more.
This one wasn’t.
Also, there was no ladder for workers to climb out in an emergency, OSHA said.
In both cases, the agency said the company “failed to provide basic safeguards to prevent trench collapse and did not train its employees to recognize and avoid cave-in and other hazards.”
One reason for categorizing the violations as willful is that Smith had attended a trench cave-in safety course in the months before the Belton incident, OSHA learned during its six-month investigation.
O’Hare was aware of that at the time.
“No more than two months before” her son’s death, O’Hare said, “he (Smith) had to go out of town for safety classes and a meeting.”
The fines were levied in June, but O’Hare and her attorney did not know that until last week when The Star also learned of the government’s action and asked the family for comment.
But Meyer’s mother said Arrow’s apparent indifference to safety regulations was no surprise to her, which is why she was so angry with Smith on the day her son died. D.J. often told her about the chances he took.
“He would say, ‘Mom, I got in a ditch today, and it started caving in on me and I got out,’ ” O’Hare said. “And I told him, ‘Please, you’ve got to be safe for Ashten. You’re the only parent he’s got.’ ”
Ashten’s mother had died of a medical condition four years before his dad did, and for that reason the boy clung to him all the more.
“Every morning,” O’Hare said, “my grandson would ask his daddy, ‘Are you coming back home?’ And Daddy would say ‘yes’ and they would hug and kiss each other.”
While Smith declined an interview this week on the advice of his lawyer, he told The Star back in December that he couldn’t understand why Meyer had climbed into the unprotected trench that killed him.
He said a metal trench box was available near the job site, and he didn’t know why Meyer hadn’t used it.
“He was a competent person by his knowledge of what he was doing, his experience,” Smith said at the time. “He had training in trenches before he came to work for us.”
But OSHA inspectors said there was no trench box nearby and that Arrow Plumbing “did not instruct each employee in the recognition and avoidance of unsafe conditions and the regulations applicable.”
Smith’s remarks in The Star did not sit well with Meyer’s family members at the time.
“He was kind of putting the blame on D.J.,” O’Hare’s brother Russ said, “but ultimately the blame comes back on the owners of the company.”
Russ O’Hare’s son Tim also worked for Arrow. He was the one who suggested that Meyer hire on.
Unlike his cousin, Tim O’Hare had no experience in the plumbing industry when he took the job. He and a backhoe operator would work as a team. O’Hare’s job was to make the plumbing connections at the bottom of the slit.
It scared him to work at the bottom of a 12-foot trench with no shoring to keep the walls from caving in on him.
“Oh, for sure,” he said, “but we just did it.”
He wasn’t aware of the federal rule requiring shoring or sloping for trenches more than 5 feet deep until after he left the company, and while he was there he never received formal training.
“I don’t know what the footage is you need to shore,” he said, “because we didn’t do it anyway.”
Theresa O’Hare cannot file a wrongful death lawsuit against Arrow Plumbing on behalf of her grandson. Like most states, Missouri’s laws require that workplace fatality settlements be funneled through the worker’s compensation system.
Ashten will receive weekly benefits from that fund until he’s 18, or 22 if he goes to college. He might also be eligible for a lifetime benefit, depending on the outcome of the case, the family’s attorney said.
But of course no amount will compensate for the loss of his last-surviving parent, Theresa O’Hare said.
“When I see men working in a trench, I tell them to please be careful and safe, that my son was killed in a trench, and I don’t know these people,” O’Hare said.
But someone does, and loves them like Ashten did his daddy.
“We miss him so much,” she said.