Migrant laborers slip through the tattered safety net in Texas

06/30/2014 12:00 AM

06/30/2014 8:12 AM

Second of two parts

Along a street lined with warehouses on the east side of Houston, nine Mexican laborers working about 20 feet off the ground are tearing up a concrete roof with handmade pickaxes.

They are chiseling it out, one mattress-size panel at a time, then shoving the debris onto the floor below. There’s a giant pile of rubble down there, a jumble of dirty insulation, tar-covered roof decking and fire-suppression water pipes ripped from the building’s interior.

To call the work hazardous would be an understatement. The workers are standing on the very roof they are demolishing, and none of them is wearing so much as a hard hat, let alone fall protection equipment like harnesses and lanyards. Technically, federal authorities require that, but the chances of a surprise inspection — or any interference from a state government that brags about its light regulations — are about as likely as a cool breeze on this warm October day.

Santiago Arias is acutely aware of the risks. He knows accidents can happen. Eleven months earlier, he lost his left eye while working for the same contractor who is running this demolition site. And as temperatures soar toward 90 degrees, he is struggling to see through the sweat stinging his one good eye.

But the day’s work is almost done, and with any luck Arias will be back in Mexico in a few months, hopefully with enough money to finish the convenience store he’s building for his family.

Up on the roof, as each section is removed, the workers retreat from its receding edge, constantly moving backward toward the remaining panels.

Arias’ nephew Jorge Luis Torres grabs the handle of the ax and swings it down a few feet in front of them. A section of roof breaks. Another panel is dislodged and lifted.

Like he’s done countless times before, Arias reaches out with his hands to snatch the concrete decking. He starts to push it off the roof. But this time, he loses his balance. He tries to regain his footing, but the treads on his boots are worn, and he slips.

Torres grabs for his uncle’s arm, but it all happens so quickly. Just like with the concrete, gravity pulls Arias, and he careens into the void.

With his one good eye, Arias glimpses a piece of metal rebar jutting out across the gaping hole. He frantically grabs the thin steel rod.

And for a horrifying moment, Torres sees his uncle, 20 feet off the ground, swinging like a pendulum from the rebar until he is horizontal — face to the sky, back to the rubble below.

Then he falls.

A common scenario

The story of Arias’ plunge from an industrial warehouse roof on Oct. 18, 2006, is based on interviews with eyewitnesses and lawyers, court documents and Arias’ own recollections.

An expert hired by Arias’ lawyers in his negligence suit against the contractor described the work conditions on the job site where he fell as perhaps “the most hazardous” he’d seen in 40 years of engineering practice, according to trial testimony.

The contractor who hired Arias has denied any responsibility for accidents that happened on his job sites and said that workers on his sites were responsible for their personal safety equipment.

Safety experts and advocates for injured workers say the scenario Arias’ case presents is hardly unique: An unskilled laborer, often without valid work papers, gets injured doing a dangerous and dirty job. The contractor may have a history of workplace accidents and working under various company names. There is no state-provided workers’ compensation insurance or private equivalent because, unlike every other state, Texas doesn’t require it. Taxpayers and charities end up paying for most of the worker’s medical care. The worker and his or her family see their income and quality of life decimated.

But for the contractor, business continues as usual, and another eager laborer, often an illegal immigrant, is standing in line to take the injured worker’s place.

“You’ve just got an incredibly unhealthy subculture that nobody wants to talk about, that everybody wants to, you know, kind of pretend isn’t happening. But it is happening,” said Houston workplace safety consultant Tara Amavi, who was speaking broadly and not specifically about the Arias case. Amavi said that “those kinds of employers are able to continue to operate, take advantage of undocumented workers, kill them, maim them, blind them and dump them, and then go down and pick up a few more on the next corner.”

The precarious plight of workers who get injured or killed on the job goes unmentioned in the slick brochures and boosterish TV ads beckoning businesses to relocate and take part in the vaunted “Texas miracle.”

While Texas has created more jobs than any other state over the last decade, it also leads the nation in the number of worker deaths, according to the federal Bureau of Labor Statistics.

The problem is particularly acute in the Texas construction industry, where 60 percent of the workforce has never received basic safety training and one in five workers reports sustaining an injury that required medical attention, according to the report “Build A Better Texas,” compiled last year by the Worker’s Defense Project and researchers from the University of Texas at Austin. About 40 percent of employers in the construction business offer workers’ compensation insurance, the report found.

Lawmakers have proposed making workers’ compensation insurance mandatory in the construction industry, but in pro-business Texas that idea has been a nonstarter.

“We have always been concerned about singling out the construction industry,” said Ned Muñoz, head of regulatory affairs for the Texas Association of Builders. After all, he said, construction is not the only hazardous business in Texas.

First line of defense

The federal government’s Occupational Health and Safety Administration, OSHA, is the first line of defense for Texas construction workers, Muñoz added.

“They require that you have a safe workplace,” he said. “It’s not like we don’t have anything.”

In 2012, however, there was just one OSHA inspector for every 104,000 Texas workers, one of the lowest ratios in the nation.

And while OSHA does attempt to make workplaces safe on the front end, helping injured workers who don’t have money or workplace insurance is not part of the agency’s mission.

‘You’re a tetraplégico’

The absence of a social and financial safety net would become clear to Arias and his family soon enough. But for the first week after his accident, he lay unconscious in a bed at Memorial Hermann Hospital in Houston. He wasn’t aware yet that he had slipped through the cracks of the Texas miracle.

He didn’t know how badly his body had been mangled. Or that he was about to run up an $841,000 medical bill. He didn’t know that he was wearing a diaper and a catheter, or that he will never walk again.

Arias has no memory of the fall itself. One minute he was on a hot roof on Clinton Drive, getting ready to go home for the day. The next thing he remembers is waking up in a hospital bed with tubes sticking out of his body. He thought somebody was violently shaking him but realized later that he was experiencing involuntary nerve spasms.

For weeks he couldn’t talk. All he could do was lie there, listen and think. “I heard, ‘Listen, you’re a tetraplégico,’ ” he said — the Spanish word for paralysis of all four limbs. “You’re not going to be able to move anything.”

Panic and dread washed over him.

“In that moment, when I realized the situation I was in, I thought about God,” he said in Spanish. “I said: ‘Well, God, look at me. You know what? Just take me. I don’t want to be in this situation.’ ”

Catastrophic mistake

In July of 2005, Arias joined his wife’s brothers in Houston. They were working for a contractor named Gary White, an Oregon native who quit school in the 10th grade to follow his father and grandfather into the construction business.

A review of court documents, interviews with workers and government records suggest that Arias and his brothers-in-law had stumbled into the kind of devil’s bargain that unskilled laborers in low-wage jobs often encounter: They needed steady work and money. White needed cheap labor. Safety took a back seat.

When Arias began working for White, his first construction contracting company had already gone belly up. White was paying his workers as independent subcontractors through Degar Fuel Systems, Inc., which had built gas stations, according to records and interviews.

Arias and Torres, his nephew, describe their former jefe as a coffee-drinking chain-smoker with a temper, a man who liked his jobs done quickly.

“He wanted everything done quick, quick, quick,” Torres said. “What he wanted was to get paid.”

From his depositions, White comes off as a hard-charging businessman who has little use for lawyers and bureaucrats — the kind of job-creating entrepreneur politicians hail in stump speeches about the Texas miracle.

White, 55, was questioned about his background and business history in two depositions stemming from lawsuits involving serious workplace accidents that happened on his watch, including Arias’ catastrophic fall.

In the sworn depositions, White repeatedly denied any responsibility for accidents that happened on his contracting jobs. He said he expected his workers — whom he paid as nonemployee subcontractors — to wear personal safety equipment, though he didn’t consider it his responsibility to provide it.

In a brief telephone conversation with The Texas Tribune in April — the only interview he permitted — he said he bought thousands of dollars worth of safety equipment for his workers and had the canceled checks to prove it.

The statements White gave about the safety at his worksites in his depositions were very different from the recollections of several of his workers.

Regarding a job three years after Arias fell, White told lawyers in a deposition that workers “were not allowed to be up on the building” without fall protection. White’s foreman said in a deposition that none of White’s subcontractors had or ever wore such equipment.

What is beyond dispute is that at least two workers were catastrophically injured on job sites where White was the contractor. For Arias, the first serious injury came in November 2005 when he says he was helping White install a large garage door on a metal building in the Houston area. A metal joint broke while they were moving a section of the door, and a piece of the iron frame came loose. It shot outward violently, striking Arias in the left eye.

Doctors at Memorial Hermann Hospital tried to save his eye, but the damage was too severe. Now, it sits shriveled and lifeless behind droopy eyelids. Arias couldn’t afford the $2,500 glass eye doctors recommended.

The injury put Arias in a coma for two weeks, and sidelined him from work for several months. His $100,000 hospital bill, which included charges for a life-flight helicopter ride, went unpaid, he said.

Arias said White continued to pay him about $400 a month while he recovered.

As he convalesced, Arias remembers thinking that he was damaged goods, and that he wouldn’t have many options for work to support his wife and their three children, who at the time were 7, 13 and 18.

“I said to myself, ‘At some other place they will see that I only have one eye, that I can’t see, and they are not going to give me a job,’” he recalled.

Regret doesn’t begin to describe the way he views his fateful choice to return to work on White’s job site.

“For me to go back and return to the mouth of the wolf — that was a mistake,” he said.

‘Where was the safety?’

White’s specialty in the construction business was raising roofs on industrial buildings. Workers would tear off an existing roof. Then they extended metal columns upward and put on a new one. The expanded space made the buildings attractive to lease out for the company that had hired him, GSL Investments, Inc. of Houston.

In 2006, when Arias returned to work, White was doing a roof-raising job for GSL at 5800 Clinton Drive, near the ship channel, court records indicate.

The demolition part of the job was nearing completion, and debris littered the 133,000-square-foot floor, according to interviews and court records.

All through the rubble lay dozens of red water pipes from the building’s fire suppression system. When Arias fell off the roof, the back of his neck struck one of those metal pipes, fracturing his vertebrae in three places.

After Torres scrambled off the roof, he saw his uncle convulsing atop the construction debris. His broken glasses lay next to his face.

“I felt a pain in my heart. I felt like I couldn’t breathe,” Torres recalled. “He had already lost an eye. I wondered what he was going to do because he wouldn’t be able to live like he lived before.”

The next day, he said the workers were back on the roof, with no hard hats or fall protection, pulling up concrete panels just like the day before — as if nothing had happened.

OSHA has no record of any investigations into Arias’ fall, but that’s not unusual. It takes more than a single catastrophic accident, or even two, to prompt a mandatory OSHA probe, according to agency rules. Businesses are required to report to the federal agency only fatalities or accidents that leave three or more workers hospitalized. OSHA officials say complaints from workers usually prompt inspections — though the inspections are not required.

Back to Mexico

The blow to his neck fractured Arias’ C-3 vertebra, the third one down from the skull. He underwent multiple surgeries, but the damage left him paralyzed from the chest down.

At first, he wanted to die. Despite his paralysis, Arias can still feel intense pain. He experiences burning sensations all over his body that, he says, feel like someone is pouring lime juice into an open wound. His joints ache and his muscles spasm violently. He constantly battles urinary tract infections, skin ulcers and insomnia. At one point, he took 26 pills a day to treat his ailments.

The financial toll on Arias’ family was debilitating. For a while, White continued to pay him $500 weekly, but when Arias started talking to lawyers, that stopped, he said. Family members, including the ones still working for White, stepped in, buying everything from medicine and groceries to catheters and adult diapers.

Arias knew that family generosity wasn’t a permanent solution.

He was referred to charities that serve injured immigrants like him — people who aren’t eligible for major federal disability and health care programs and have nowhere else to turn. Living Hope Wheelchair Association, which has been providing medical supplies to undocumented immigrants since 2005, got him a wheelchair.

Casa Juan Diego, a Catholic charity in Houston, helped with rent and disposable medical supplies.

Most importantly, his health providers helped arrange for a humanitarian visa for Arias’ wife, Remedios. She went to her husband’s side and found the strength — from God, she said — to embrace her challenging new reality.

“I’m the nurse. I change him, bathe him, feed him. Well, everything. I brush his teeth. It’s like he’s a baby,” she said.

Arias can breathe on his own, although sometimes with difficulty. He has enough sensation in his right arm to wedge the joystick of his motorized wheelchair between his thumb and forefinger and stiffly move it in the direction he wants to go.

For several years after his accident, Arias took charity handouts and hawked bracelets, necklaces, belts, hats, hairbrushes and perfume at Houston’s La Michoacana and Teloloapan Meat Markets.

It was demoralizing. Arias got slapped and nearly knocked out of his chair by a deranged drunkard. A gang of young men at the Teloloapan market robbed him. Then about a year ago, he decided to return to Mexico City.

In September 2013, he bought a used, wheelchair-accessible taxi. His relatives stuffed it with as many donated adult diapers and catheters as they could and drove back home.

When a reporter and photographer visited Arias at his home in January, packages of the donated diapers were stacked near crates of inventory — sodas, snacks and other items — waiting to be sold next door in their convenience store. It’s finished now, though it hasn’t been as successful as the family had hoped.

Arias’ paralyzed legs were secured to his wheelchair with little strips of fabric, to keep him strapped in when the spasms hit. His wrists are twisted from a neurological condition that has frozen them in a permanent downward curve, his palms facing outward as if he’s bracing for a fall that never comes.

In spite of the hardships, Arias was smiling and positive, and even managed to laugh at himself. At one point, he joked that his disabilities would make him a natural fit at a Halloween party. After spending several years in the U.S., he said he’s happy to be back in his home country with his family. He has two daughters, Nallely and Miriam, and a son, Santiago Jr., the latter of whom graduated from Northbrook High School in Houston in 2012.

No lesson learned

‘They just discard them’

Years later, Arias is now back home in Mexico, and his smile belies the expense and the immeasurable toll of the catastrophe that has befallen him. His unpaid healthcare bills from the two accidents that occurred while he worked for contractor Gary White reached nearly $1 million, he said.

Then there’s the multimillion-dollar jury verdict he’ll never collect.

A new attorney eager for courtroom experience, Brant Stogner of the plaintiff’s firm Abraham Watkins, took White’s company to court in 2008. He thought he’d at least get a splashy verdict, through probably not a big payday. He was right.

White was a no-show during the trial, and jurors awarded Arias $21 million, the largest workplace negligence verdict in Texas in 2009, according to Verdict Search, which tracks lawsuit awards. White had few resources, and his insurance policy specifically excluded subcontractors like Arias, according to Stogner and court testimony.

“Unfortunately it is common and it goes with a state that does not regulate as heavily as the other states,” Stogner said.

In the end, Arias’ lawyer sued White’s insurance agency. They settled for a fraction of the jury award — roughly one-half of 1 percent of the verdict amount when legal fees and court costs were subtracted.

Arias received less out of that settlement than the $125,000 that doctors estimated his care would cost in the U.S. each year for the rest of his life. A nondisclosure agreement keeps the exact amount confidential.

GSL Investments settled with Arias for $50,000 in May of 2008, records show.

Stogner said he had hoped the big verdict would “send a message” and possibly discourage unsafe working conditions in the construction business in Texas.

As a result of the lawsuit, White began working under another company name in 2007, switching from Degar Fuel Systems to White’s Building Service, Inc. It was at least the third construction company White had created since 1994, according to business and court records.

Less than three years after Arias fell, another Mexican immigrant working for White on top of a GSL-owned building suffered a workplace calamity. The worker, Juan Meza, fell to his death, according to federal investigative files and court records.

A beam at the job site toppled over and struck Meza, knocking him off of a wall.

In a deposition, White said he was responsible in “no way, shape or form,” and blamed the fall on Meza’s allegedly shoddy welding.

Following protocol when a worker is killed, OSHA launched an investigation. Laborers at the site were not wearing fall protection equipment, the federal investigation showed. Officials concluded there were “serious” violations of federal safety laws, including White’s failure to provide fall-protection equipment. The agency fined White $5,100.

In his deposition in the Meza case, White called OSHA “idiots” and promised he would never pay the fine. He claimed the welders were responsible for the safety violations.

Meza’s family sued White and settled for approximately $450,000, court records show. After the accident, GSL Investments cut ties to White. Company president David Ebro said GSL now requires its contractors to carry workers’ compensation insurance. He wouldn’t comment about the Arias or Meza cases specifically, but Ebro called them “heart-wrenching” and said he’s praying for the families of the two workers.

As for White, his last company, White’s Building Services, forfeited its corporate charter and is no longer in good standing with the Texas secretary of state’s office, records show.

In a few passages in his depositions, White expressed sympathy for the accident victims even though he repeatedly said he was not at fault.

Looking back on the Meza incident, White said he felt bad for the welder’s family, including a young son who had been left without a father.

“I feel bad when any human loses a finger,” White said. “I’m very sensitive in that aspect.”

In another deposition, he called Arias a “very, very good guy,” though in his brief telephone interview he said Arias only had himself to blame for “throwin’ some concrete the wrong way.”

Arias said he never saw White again after he was paralyzed. After all these years, he wishes he could tell his former boss to “be a little more humane with people.”

His wife thinks the whole construction ecosystem, a key driver of the Texas miracle that politicians tout, could use a little more humanity.

“After all of the work he did, what they did to him was very cruel,” she said. “In construction, it’s the Mexicans who are doing all the work. And when they can’t work anymore, nobody helps them. They don’t pay them. They just discard them.”

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