Jill:

This is the Accidental Safety Pro, brought to you by HSI. This episode was recorded in commemoration of Worker Memorial Day, 2021.

My name is Jill James, HSI’s Chief Safety officer and host of this podcast.

April 28th was established as Worker Memorial Day in 1970 by the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO).

It is a day set aside to remember lives lost on-the-job and a day to honor the families and co-workers who mourn their losses. It is also a day of challenge for each of us to do our part to prevent workplace deaths.

This year, Worker Memorial Day has a particular sting as we continue counting the workplace death toll due to the pandemic.

Frequent listeners of the podcast know I was an OSHA Investigator early in my career and during those years I investigated 18 workplace deaths and 12 serious injuries. Each of those deaths and injuries has a story, and each are indelibly written in my mind and on my heart. What I learned, what I witnessed has been informing and inspiring my work for 27 years.

One of those stories I’ve been sharing as a keynote address for the past number of years and I’ve decided to share it with you here.

I invite to settle in with me as I share Nick’s story.

Twenty-four years ago, I got a phone call.

The voice on the other end was asking me, “Do you want us to hold the scene until you get here?”

“Did you take photographs?” I asked.

The deputy, who was calling said that he had taken photographs and measurements too.

So I asked him, if he would please, release the body to the family. I didn’t want him laying out there; I was still an hour and a ½ away.

Now, before I got that call, a mechanic named Donnie was on his two-way radio, listening to Todd, his co-worker, repeat “He’s dead” “He’s dead” “Nick is dead”

Moments later, Donnie called 911.

Across town, Patty was working as an administrative assistant for the largest employer in the community. She was asked to report to the executive conference room and she didn’t know why. She thought, “What did I do wrong?” or “Maybe, I did something right!”

When she walked into the conference room, she saw a bunch of people from her personnel department, the local priest, a deputy sheriff, and a familiar face from her husband’s work.

“What’s going on?” she asked. Everyone was silent. For a minute, time was still.

The deputy broke the silence by asking Patty to identify herself; she did.

Then the deputy said her husband had been killed at work.

He was ran over by a bulldozer.

Nick was dead at the age of 30.

One of Patty’s many thoughts was about the night before. Nick’s mom came over and made her son’s favorite meal; ham and scalloped potatoes.

Nick was the kind of guy everyone loved. He was always happy. So happy, that some days Patty could hardly stand it, if you know the type. And, in her words, he was “rarely an ass”---there was an uncommon kindness to him.

Nick was that guy who sends flowers to his wife at work, to the envy of other women. He was a skinny guy with a 28-inch waist. He was the sort of guy who gets up at 4:30 in the morning to hunt with his best friend.

Patty couldn’t stand him the first time they met, weathering a multi-hour car trip in a Minnesota snowstorm with Patty’s brother and Nick’s sister.

But over time, Patty’s opinion changed, they fell in love, and married in 1990, making their home in a small prairie town in Southwestern Minnesota.

Nick started working for a small excavation company. And when it came to community involvement, the company was involved.

Small towns in Minnesota are infamous for their town festivals and the locals that make them fun. Soon after starting his job Nick, on behalf of the company, dressed in drag to compete in the Miss Prairie Pie Competition, singing What’s Up by the 4-Non Blondes.

He took second place.

Patty and Nick had a daughter, Amanda.

A blonde cutie who was five-years old the day her dad died, turning six two days later. Amanda told her mom, that she had seen her dad drive past her daycare the day he died. He waved to his daughter. She waved back.

The night before that tragic day in May of ‘97, Nick’s co-worker, Jay, a handsome young man—all of 21 years old—stopped by Patty and Nick’s place.

Jay had never been to their house before though he just lived down the street. Jay swung-by to ask Nick for a ride to work the next day.

Nick teased Jay almost like his son, instructing him to be on-time and waiting out on the sidewalk the next morning.

And, that next morning, on his way out of their house, Nick told Patty he loved her one last time, and went off to pick up Jay.

Back then, I was working as a Safety Investigator with the State of Minnesota.

I was 26 years old. I had only been on the job for a year-and-a-half. Nick’s death was the 9th accident I had investigated, and my 5th fatality case.

My job was to determine if Nick’s employer had violated any federal or state OSHA laws. So I gathered evidence from the scene, reviewed employer safety materials, and interviewed employees to help piece together what happened and to affirm or deny safety training against the company records.

I also had to gather information on the victim’s next-of-kin so the government could send them a letter of condolence.

That was my job. That was my job for each of the fatality or serious injury cases I investigated in the 12 years I was a Safety Inspector.

On that day, my work took me to a windy prairie in southwestern Minnesota. The job-site was located at one of those little banks—a single-story, square structure. Nick, Todd, Jay and Quinn were working to build a drive-through lane at the back of the bank.

Their job as excavators was to work the earth, in preparation for paving. They were using a pay-loader, bulldozer and skid-steer loader to flatten, widen and level the ground.

Nick’s job was to ensure the ground was level and that the correct thickness of ground was cut with each pass of the bulldozer using something called a grade-rod and laser for precision, which meant he had to take a measurement each time Jay went over the ground with the bulldozer.

Todd was operating the skid-steer loader nearby, while Quinn was on the pay-loader at the other end of the project, piling-up the spoiled or unused earth.

It was during one of these passes of the bulldozer that Jay inadvertently backed over Nick.

Back then, a woman named Kris was leading the safety efforts for Nick’s company, a job she gave herself along with the bookkeeping and customer service responsibilities. Kris was trying to find a niche for herself in the company she and her husband would eventually buy from her in-laws.

Three years before Nick’s death, Kris wrote the company’s first-ever safety program as a result of a new law. Then she organized and led the company’s first safety-training day. Looking back, the training day was kind of a flop. She had invited their insurance carrier to do some training and the guy was, sort of meh.

She also invited a highway patrol officer to do driver training, and he did a little better, getting the employees involved and mocking up what happens if you break driving laws, putting employees in prison clothes and acting out situations.

She was trying.

It was Kris who reported Nick’s death to the main OSHA office.

When I arrived on the jobsite, I began going through my protocol: The back-up alarm on the bulldozer was working. The windows of the bulldozer were clean, unbroken. No recalls on the dozer or special warnings about tricky blind-spots from the manufacturer No missing safety devices. Jay, Todd, Nick and Quinn had all been through safety training. No allegations of “horseplay”, malicious intent, or intoxication regarding any of them.

18-years later, Nick’s wife Patty would tell me, “They were just normal people doing their work.”

And she was right. All men earning a paycheck, doing good and noble work, just like you, just like me.

On that day . . .

Patty’s brother Bobbie picked her up at work; the two of them collapsing onto one another in their grief.

She and Bobbie really didn’t know what to do or how to act. She recalls driving around town with Bobbie, the two of them chain-smoking cigarettes.

Patty wanted to tell her mother, but her mom wasn’t home and they were trying to contact her. She was also trying to figure out how she was going to tell her 5-year old, who was still at day care.

Bobbie and Patty drove past the bank site. There was yellow tape wrapped around the dozer. Patty remembers watching other cars driving down the street, people going on about their lives, and thinking her life had stopped.

The grief-pile continued when Patty and Bobbie arrived at their mother’s house, where other family members had gathered.

The neighborhood was mourning.

Soon, Amanda was there. Someone had picked her up. As Patty watched her daughter walk toward her, a local Pastor who had joined the family whispered, “Your only priority is Amanda.”

Those words focused her.

Today, Amanda is turning 30, and she’s mother to Nick’s granddaughter, Lily. Patty, Amanda and Lily live in the southwestern United States.

My investigation yielded no citations against Nick’s company.

There were no violations of any safety laws.

I couldn’t find anything.

Kris, the young lady helping to run the family business, filed a workers compensation claim for Jay who was driving the bulldozer that day. Jay was suffering emotional distress and Kris wanted to help him.

But this was long before there was wide discussion of emotional impairments like PTSD (Post Traumatic Stress Disorder) or related disorders.

The claim was denied, and found non-compensable, citing a Supreme Court Ruling at that time.

In fact, it wasn’t until 2013 when the state of Minnesota signed a new workers compensation law allowing PTSD to be a compensable workers compensation claim.

Jay never returned to his job. In fact, Todd and Quinn found other work as well. All three of them still live near one another and occasionally talk with Kris and with Donnie, the co-worker who called 911 that day.

After the accident, employers in the area started calling Kris. They knew what had happened, they also knew Kris had been developing safety training and safety programs, and they asked if she would share what she had.

Meanwhile, Nick’s death wore on me.

It wore on me because his wasn’t the only death of that sort I had investigated. I had coworkers investigating similar deaths where people were run over by earth-moving equipment and were dying and the people driving the equipment were suffering.

Or at least I figured they must be suffering. See that’s the thing about being an OSHA Inspector, you weren’t allowed to talk with the families of the victims in order to stay neutral and, after your inspection was done and your case closed, there wasn’t further contact because you moved on to another case.

But, it didn’t stop me from wondering how everyone was doing.

With Nick’s death on my mind, I decided to call my coworker and fellow-inspector Norm.

Before joining OSHA, Norm had spent the better part of his working life as a heavy equipment operator just like Jay.

I told Norm I was growing weary of these cases and wanted to do something to prevent them. I asked Norm to partner with me, to use his knowledge of the trade and equipment to try and come up with a prevention strategy.

Over a series of meetings and discussions, Norm and I drafted a new safety law.

It was adopted by the MN Legislature in 1999, 2 years, 1-month and 7-days after Nick’s death.

It’s called, the Operation of Mobile Earth-Moving Equipment.

There are several pieces to it. The primary intent however is building a relationship between equipment operators and the people working on the ground so everyone knows where everyone is at all times.

The part of the law Norm and I get to see as we go about living our lives is a requirement for all people working on the ground around earth-moving equipment to wear what is called a Class II High Visibility garment.

Class II means there is a lot of color all the way around the person wearing it so they can be seen even if standing sideways.

There were no requirements for this prior to 1999, unless you were working in actual traffic, on a road.

And, in 2000, Tom, a fellow-safety professional, who works for an electrical contractor in Minneapolis, amended the law, adding a provision for the high-visibility garments to be fire-rated when working under certain conditions.

Tom’s motivation came from an employee who experienced an electrical arc flash and was burned when his non-fire rated vest caught fire.

What happens next is sort of wild.

It was 2002; five-and-a-half years since Nick died. And I was still doing my OSHA gig back in that same prairie town.

This time, I was on a routine construction inspection. No one was dead.

I was getting my gear out of my government-issued car on the job-site, when this man, a dry-wall contractor from the construction site comes walking up to me.

“Are you that OSHA lady?” he asked.

At this point, I’m checking my-6 because being the OSHA lady does not mean that you are a celebrity and that this guy is looking for an autograph.

“Umm, yes, I am.”

The man came closer;

“It was you, you who investigated my brother-in-law’s death, back at the bank, he was ran over, do you remember?”

Of course I remember, I tell him, I just thought of him when I pulled into town.

He goes on, saying his sister was married to Nick, and that she’s a widow and a single mom and that Nick is lying there in the cemetery.

And then, he gets closer to me.

This is Bobbie, Patty’s brother, the one who drove Patty around town after they got the news of Nick’s death.

Bobbie pokes his finger at me;

“What did you ever do to make sure that would never happen to anyone else?”

It just so happened I carried copies of the law Norm & I wrote with me to share with contractors, and whenever I did education about it around the state.

So I gave Bobbie a copy and told him about the law.

I believe Bobbie’s response was, “No shit?”

Which, I believe, roughly translated means, “The government did something?”

In preparation for today, I reached out to Nick’s former employer, Patty, his wife and others close to this story, because I wanted to know more and wanted to share more with you.

A few years ago, I made my way back to that little prairie town with a photographer to capture images I share when I tell this story in-person to an audience.

I started at Kris’ office. She’s now CEO & CFO of the company where Nick worked. Kris introduced me to Heather.

Heather is the person now leading the safety-charge for their company, a role Kris passed to her in 2006.

I asked Heather if she could take us out to one of their jobsites to take pictures of actual people working.

And, she agreed. In fact, she said they had a tiny crew working a project very similar to the work Nick, Jay, Todd and Quinn were doing 19 years ago.

We drove past the bank site—now a gas station—on our way.

When we got to the jobsite, my goal was not to break any of Heather’s safety rules under the watchful eyes of her coworkers. Heather instructed Marti-the photographer and I to stay in the grass around the perimeter of the site, far away from the activity.

Then, I watched Heather do what I used to do as an inspector before I approached a job-site. She took off her jewelry, put on her work boots, donned her hard hat, put on her high visibility vest and safety glasses.

It was surreal for me, watching the next generation of women in my role do what I had done 100’s of times. Heather stepped foot onto the worksite.

It really did look a lot like the site the day Nick died.

They were working to build a small driveway and parking lot. There wasn’t a bulldozer this time, it was a road-grader and driving the road-grader was Kris’ son, David the next heir to the company who was 5 or 6 years old back on that day in 1997.

It wasn’t Nick standing with the grade-rod taking measurements but another employee, Levi this time.

And, I have to admit, I was a little nervous.

I think I was part safety professional and part mom in those moments, wanting to lurch forward and say, “Be careful, not so close, watch where you are . . .”

And then, something amazing happened.

See, earlier in the day Kris was telling me about the progress they made in safety and mentioned how they started using more personal protective equipment like the high-visibility vests after “that one law” was written.

“That one law?” I asked, “You mean, this one?”

I took out a copy and laid it in front of her.

“Yes, that one.” She affirmed.

Kris and Heather never knew why that law had been written.

They didn’t know how it came to be, until I showed back up in their offices 19 years later.

I never knew that. But, I guess, how would’ve they known?

So Kris and I went over the law . . . a law we both knew.

I had been enforcing it.

Kris’s company had been complying with it. But, on that day, we looked at it together with fresh eyes.

Safety laws nearly all start the same way, with what is called, The Scope. The scope explains what sort of work and what sort of workers the law applies to.

With the law in-hand, I read the scope with Kris. And, it reads . . .

“This part identifies minimum safety requirements for the safe operation of mobile earth-moving equipment used for earth moving, building, or road construction or demolition, including, but not limited to, bulldozers…

Bulldozer is listed first, it was done on purpose and done for Jay, I told Kris.

And, we went on. I placed my finger over loaders and said, “This is for Quinn.”

I placed my finger over skid-steer loaders and said; “That is for Todd.”

Then we moved on to the part of the law listing the types of employees who have to be trained.

“This part pertains to operators of the equipment and exposed employees, including, but not limited to, grade checkers, grade persons, rod persons, stake hops, stake jumpers, and blue toppers working in the area.”

The first job title listed is grade persons.

I laid my finger on the word, Grade Checker and said, “That is for Nick”

So back to the worksite, I watched as Heather got in David’s sight-line as he was operating the road grader; they made eye contact and the two of them confirmed their sight of one another with through hand-signals.

Just like it’s written in the law Norm and I wrote!

After signaling David to stop, I heard the road-grader drop into neutral and the brake set—just like it was written in the law!

And, then, Heather safely approached the road grader—just like it’s written in the law!

The work continued, in perfect orchestration, safely, as they communicated without language and I watched from my place in the grass like I was looking through a magic window.

It worked. Wow. It worked.

That law, worked.

In the 27 years I’ve been working in safety, I’ve been witness to a lot of tragedy. Sometimes a death, sometimes a life-changing injury---and what I’ve observed is that the companies who employ the victims fall into 1 of 2 categories:

Those who blame the victim . . . where humanity is non-existent, concern is about liability and less about human beings.

Or;

Those who rise to the occasion, engage in smart business practices and do all they can to ensure the same never happens on their watch again.

Nick’s company, and Kris in particular, dared to rise to the occasion.

One of my favorite Social Scientists is Brené Brown. She calls herself a Researcher Storyteller and in her book titled, Rising Strong, she writes . . .

“The truth is that falling hurts—the dare is to keep being brave and feel your way back up.”

Truth and Dare

“The truth is that falling hurts—the dare is to keep being brave and feel your way back up.” Let’s think about Kris, Nick’s employer. The Truth is, Kris could have chosen status quo safety, but she Dared to be better. Under her leadership, Nick’s company became the 1st in the State to partner with OSHA & Associated Builders & Contractors to reduce injuries, illness, and deaths in the construction industry. They are still active in it today; in fact, Heather served as both chair & co-chair.

The Truth is, Kris’s excavation company’s injury rate is so low and their safety program so good, she Dared to market it as a competitive advantage against their competition.

The Truth is, the construction industry is hurting to attract qualified workers, so Kris dared to use her board seat with the Associated Building Contractors to apply for and win a grant to create a Core Construction online Training Program to attract people to the trades and teach them how to read blue prints, math for construction, communication skills, Green building, and a lot of safety!

The Truth is, Kris’s company could have forgotten about their employees, but they dared not to. They created a commemorative garden right in front of their building to thank Brad for his service to our country, to remember Doug who lost his life to cancer, Bob who lost his to suicide, and Nick who lost his life at work.

And Patty, Nick’s widow. The Truth is, Patty said she could have chosen to hate; rather, she dared to forgive, love and thrive.

The Truth is, as a 26-year old, I had no idea where this story would take me nor how many people would dare to step-up & step-out making changes across an entire state but we did it anyway.

What is your truth?

What have you dared to do?

Maybe it was something with safety, maybe something else in your work life, community life or personal life?

And,

Where have WE fallen, and haven’t been brave enough to feel our way back up?

Ask yourself. What truth are you facing down today?

Now, now is the time to dare yourself, take that first step;

You and others will be stronger for it. I promise.

Thank you for listening today. And, thank you Patty as always for allowing me to be the keeper of this part of your family story.

I know some of you listening carry your own workplace death story. If you need a safe space to talk, I’m here to listen. Reach out as you are able. You can reach me at [email protected]

We’ve included a link to the law I reference in the show notes.

Thank you for spending your time listening today. And more importantly, thank you for your contribution toward the common good--- making sure your workers, including your temporary workers, make it home safe every day.

If you’d like to join the conversation about this episode or any of our previous episodes--- follow our page and join the Accidental Safety Pro Community Group on Facebook.

If you aren’t subscribed-- and want to hear past and future episodes-- subscribe in iTunes; the Apple Podcast app; or any other podcast player you like.

We'd love it-- if you could leave a rating and review on iTunes. It really helps to connect the show with more safety professionals, like you!

Special thanks to Will Moss, our podcast producer.

Until next time, thanks for listening.