What does it take for MSHA’s Richard Stickler and the Solicitor of Labor to do their jobs?

• Front-page newspaper stories about MSHA’s failures?
• A letter from a grieving mother?
• A petition signed by other family-member victims of workplace fatalities?

Apparently, it took all this and more for MSHA finally to decide that the November 8, 2005 coal truck accident at the Alliance Resources’ Metikki Mine which killed Chad Cook, 25, was work-related. 

Chad Cook, a contract driver employed by the Utah-based Savage Services, died when his haulage truck, heavy-loaded with coal, ran off the private mine road in northern West Virginia.  It was a cold, dark November night, two years ago.  MSHA managers made a gross error when they decided that the fatality was NOT work-related, asserting that the crash occurred on a public road, not a workplace, and therefore, not subject to MSHA (or OSHA) regulations.* 

As a result, MSHA investigators didn’t do what they normally would (should) do after someone dies on mine property: examine the scene, the equipment, and the company records, and interview individuals who might have knowledge about how the fatality occurred and the company’s and contractor’s overall safety program.  Relevant questions, for example, would be:

• What were the procedures at the scale house for weighing the coal trucks? 
• Was the truck overloaded, making it more prone to an accident? 
• What is Savage Services’ history with coal truck accidents, its maintenance procedures for coal trucks, etc., etc. 

By failing to conduct a timely fatality investigation, as required by the Mine Act (103(a)), all kinds of evidence (both physical and experiential) were lost or destroyed, making it extremely difficult to determine the cause of the accident, AND to prevent similiar incidents in the future. 

When I first heard about this situation in April 2007, from the Charleston Gazette’s Ken Ward, and from Mrs. Gay Cook herself (the victim’s mother), I was  infuriated.  First was the matter of MSHA determining originally that the fatality was not on mine property.  That was the first huge blunder.  But then, in April (17 months after Chad Cook’s death), when Ken Ward published a story, documenting that the fatality happened on mine property, MSHA squandered its opportunity to make things right.  Ken Ward’s story included a PHOTO near the accident scene, with a giant road sign which reads:

“This is a private road and not open for public use.  No trespassing.”

I saw both ineptitude and injustice in this two-year old Chad Cook story.  First, the ineptitude because MSHA failed to do its job, but second, when the error was pointed out more than six months ago in the pages of the Charleston Gazette, Assistant Secretary Stickler blew it.  After Ken Ward’s April 22 story ran, exposing MSHA (and the State of West Virginia’s mistake), I assured Mrs. Cook, “Surely, MSHA would right their wrong and promptly designate the death work-related.”  Mrs. Cook, a kind-hearted, soft-spoken woman who runs a small dairy farm in southern Pennsylvania, was more pragmatic, preferring to hear a decision officially from MSHA. 

Well, weeks turned into months, and as the two-year anniversary of Chad Cook’s death approached, MSHA officials remained officially silent on whether they would deem the fatality work-related.  Mrs. Cook decided to send a certified letter to Assistant Secretary Stickler, asking for someone (anyone, please!) to contact her.  Around the same time, Tammy Miser, founder of United Support and Memorial for Workplace Fatalities (USMWF) posted an on-line petition called “Justice for Chad.”   It begins:

“There are many injustices in this world and we all know life isn’t fair.  For some matters, there is supposed to be a system of checks and balances.”

Well, for the Cook family, that system of checks and balance completely failed.  Moreover, those checks and balances don’t work on their own; there are individuals —senior Department of Labor officials (i.e., Asst. Secretary Stickler, the Solicitor and Associate Solicitor of Labor, and the Admininstrator for Coal Mine Safety and Health) —who have the responsible to make sure the system works properly.  These senior individuals failed in their duty, they failed Chad Cook and his family, and they failed all of the nation’s miners.  

The “Justice for Chad” on-line petition has been signed by more than 70 people from across the U.S.A.   Names on the petition include family members who’ve lost loved ones in other workplace disasters, including:

• Barbara Richardson (Maine) whose Dad, Ken Schoppee, 64, was killed at a remote logging site on August 29, 2007 in Maine, writing they “lost the light and love of our family.”

• Loraine Gonzalez (Texas) who lost her son Christopher Doughty, 18, in a workplace accident, writing, “I understand your need for answers.”

• Michelle Kahle (Wisconsin) and Kim White (Alaska) whose lost Tyler Kahle, 19, their son and nephew, respectively, in a fatal accident in July 2007 at a gold mine in Alaska. 

• Kathleen Bollwahn (Alabama) whose son-in-law and ironworker Scott Heilert, 36, was killed on-the-job in 2004 in Wisconsin. 

• Debbie and Melissa King (Massachusetts) who lost their husband and dad, Paul King, 50, by electrocution while he was working at Boston Logan’s airport.

• Peggy Cohen (West Virginia) who lost her dad, Fred G. Ware, Jr., at the Sago mine in January 2006.  She writes: “The Cooks absolutely deserve an answer. …This is so unfair and unjust.  Everyone needs closure.  It may not always be what we want to hear, but we need that closure.  We need to keep this petition going so they can get their answer.”

• Donald Coit Smith (Texas) whose son, Donald, 22, died on-the-job at a chicken processing in Texas.  He writes: “so many details will be lost due to time passing and evidence destroyed.  This goes to show how truly uncaring our government really is.”

• Jo Ann Durbin (Ohio), whose husband Steve Durbin, 56, died in September 2003 in a trench collapse in Ohio, writing “after losing my husband and not knowing what happened, I know first-hand what the Cooks are going through.”

Apparently, it took this petition, a letter from a grieving family, and newspaper stories, to compel senior officials from MSHA and the Solicitor of Labor’s Office to correct their grievous mistake.  In a statement released on Friday, Nov. 9 (and reported by the Charleston Gazette’s Ken Ward,) MSHA announced:

“The Administrator for Coal Mine Safety and Health, after consulting with the Labor Department’s Solicitor’s Office, determined that the November 2005 death of a truck driver occurring on a mine haulage road in West Virginia should be counted as a reportable death in MSHA’s statistics.  The Administrator found that the Agency had jurisdiction over the haulage road. …”

This should mean that MSHA will be preparing a fatality investigation report which documents, to the best of their ability given the TWO YEAR delay, the cause of the coal-truck crash.  I hope it provides some of the answers that the Cook family has been seeking, although Mrs. Cook has already been told that if she wants documents related to MSHA’s investigation (e.g., who was the manager who signed off on the inspector’s decision that the fatality was NOT on mine property), she could file a Freedom of Information Act (FOIA) request.  Ee-gads!  Somebody at MSHA could use some sensitivity training.

If this kind of giant mess-up occurred to someone in my family, I would want heads to roll.  Especially knowing that the two-year statute of limitations for filing any kind of legal case has expired.  But, Mrs. Cook seems to find a way, despite her grief, to look on the bright side.  Upon learning that MSHA would be preparing an accident report she said: 

“I’m hoping this will help bring us a little closure.  It’s going to help some, and I hope that it also helps other families.”

Sigh.   Haven’t we heard those selfless words so many times before from family-member victims of workplace fatalities.  There’s nothing that will bring back their loved one, but if it helps prevent another family from experiencing the same heartbreak and loss, they will kindly oblige.

—–

*Note: Get this: if a worker is killed on a public road, it doesn’t even have to be reported to OSHA!  29 CFR 1904.39 says: “Do I have to report every fatality or multiple hospitalization incident resulting from a motor vehicle accident? No, you do not have to report all of these incidents.  If the motor vehicle accident occurs on a public street or highway, and does not occur in a construction work zone, you do not have to report the incident to OSHA.  However, these injuries must be recorded on your OSHA injury and illness records, if you are required to keep such records.”