A tireless worker advocate has recently issued an open letter to a company he believes was responsible for the 2009 death of a friend’s son. The advocate, Mike Pearson, believes that Kiewit, a huge multinational construction firm, recklessly exposed a young worker, Sam Fitzpatrick and his brother Arlen to danger by ordering them to work downslope from heavy equipment moving boulders at the Toba Montrose job site in BC. These orders were issued despite an incident the day before when a boulder was dislodged, rolled downslope and struck a piece of equipment close to where the brothers were working. His letter is addressed to Ryan Tones and Rick Lanoha, executives in BC and the US for the Kiewit companies. I reached out to Mr. Tones and Mr. Lanoha to invite their comments. Lanoha replied by email on July 7, saying:
“Our comment to you and Mr. Pearson on behalf of the company and its employees is that we understand the grief that continues to be felt by Sam’s friends and family, and their advocacy efforts to improve worker safety in British Columbia. Nothing has been or will ever be more important at Kiewit than the safety of everyone on our projects and to help ensure our worksites as safe as they possibly can be. It was always our company’s firmly held belief, and that of our experts, that the rockfall that tragically took Sam’s life was an accident not caused by those working on the site. The British Columbia Prosecution Service came to the conclusion that anything to the contrary did not pass the burden necessary to go to trial.
None of that takes away from the tragedy of what happened to Sam, and we continue to express our condolences to all who knew and worked with Sam, However, an attempt to assign criminal blame where criminal blame does not exist doesn’t do anything to protect worker safety. We will continue to work hard to provide safe workplaces wherever we operate and ensure we’re doing our part to promote and drive safe work practices in construction.
Thanks.
Bob Kula
VP, Corporate Communication, Kiewit”
(Full disclosure: I am not a neutral in this matter. I started covering the Fitzpatrick death as a labour reporter and went on to develop friendships with the brothers’ dad, Brian and with Pearson, as is reflected in the Pearson letter. I have supported their campaigns for accountability both as a journalist and as a community activist, and I support the demands for a corporate apology backed up by suitable payment to Arlen Fitzpatrick, Sam’s surviving brother.)
One of the things I discovered in researching my coverage was that Kiewit had been found responsible for worker deaths in several other jurisdictions including Boston and Texas .
I reached out in early July to Barbara Deschenes, the Worksafe BC inspector who filed a scathing report on the Fitzpatrick death, a report in which she urged that the company be assessed the highest “Presidential” cash penalty levied by Worksafe to that date. Rather than accepting responsibility for what Deschenes’ report called “deficient safety planning and supervision” and “lack of effective risk assessment,” Kiewit did what many companies do when called to account for lethal negligence- they lawyered up and appealed the penalty, winning a significant reduction in the assessed fine from the Workers Compensation Appeal Tribunal (WCAT), a reduction based on the far-fetched argument that there was no conclusive proof the heavy equipment working above Fitzpatricks dislodged the boulder that killed Sam, as it could have come from above where the heavy equipment operator was working, dislodged in some other way.
The appeal tribunal ruled against the larger “Presidential” fine that had been imposed on the company by the original inspector’s report, and said:
“Because we are unable to find on a balance of probabilities where the rock came from or whether it would have been controlled by adequate scaling, we cannot conclude that the worker’s death resulted from that safety violation. It follows that, notwithstanding the employer’s misconduct in this case, all the requirements for a presidential penalty are not satisfied and we must therefore cancel the presidential penalty against the employer.”
Deschenes told me by email on July 7 that: “I did not conclude that the excavator above the crew directly dislodged the boulder. It is a possibility, but I had no evidence of that. There was no way for investigators to determine exactly where the boulder came from, as the excavator operator said it was already in motion, NEAR the treeline, and UPHILL of the previously scaled smoothened area. WCAT upheld all the safety violations cited, which included an order for inadequate scaling of the site. However, at the end of their decision, on page 23, they decided that it was equally possible that the boulder came from an area that was outside the employer’s scaling area.
There was no evidence of this.
The perimeter area was assessed, and there was no sign that a large boulder rolled out from the forested terrain. The OHS Regulation 20.80 requires that excavation sites be kept safe from unstable objects at the excavation perimeter that may possibly enter the work area. This has been a requirement for decades, and has never changed, that I know of. It is well understood in industry. I tried to explain this to WCAT, but they instead chose to believe that a dangerous object that might have come from outside the scaling area would not be the employer’s safety responsibility to control.
For this reason, they decided that the employer’s violation did not cause the worker’s death. In my opinion, this was an error due to the requirements of OHS Regulation 20.80, as well as all the other requirements that I cited the firm for violating.
Despite the questionable fine reduction, the appeal tribunal supported Deschene’s finding that Kiewit had shown “reckless disregard” for worker safety at Toba Montrose.
Deschenes, now retired from Worksafe BC, agrees with the Pearson letter that Kiewit should apologize to Arlen Fitzpatrick.
“The company could have been more humane toward Arlen,” she told me in a phone interview July 2.
“Kiewit was not half as forthcoming as other companies I investigated,” she said. “It is difficult to resolve an investigation when so many are willing to conceal things. It now seems that some Kiewit testimony was untrue.”
Deschenes expressed concern about evidence Pearson has been able to discover – evidence that suggests that the boulder that struck and killed Sam Fitzpatrick was moved off property and destroyed by the company. She also said she had learned that Kiewit had a high level of prior safety violations before the Fitzpatrick death.
In the future, she told me, higher fines might help make workplaces safer.
On July 5, 2024, I spoke on the phone with Arlen Fitzpatrick, the young worker who saw his brother die. I asked him his response to the Pearson letter, and what he would say to Tones and Lanoha, the two Kiewit executives to whom the letter is addressed.
“I really appreciate what Mike has done, but an apology wouldn’t mean anything now. If I could talk to the Kiewit guys, I wouldn’t have much to say. They know how they f*****d up and their consciences must weigh heavily on them. They know what they did,” said Fitzpatrick.
Please take action: Email Tones and Lanoha ([email protected], [email protected]) and tell them you support Pearson’s call for their firm to apologize to Arlen Fitzpatrick and cut a check to compensate him for his loss and trauma. While this would clearly fall under the heading of “too little, too late,” it is still the right thing for the company to do. Please join me and Mike Pearson in drawing this to the attention of Kiewit executives.
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