By Glenn Frankel Washington Post Staff Writer
The lives of Robert Baker and Michael DeGroot were worth exactly $1,000 each, according to the Commonwealth of Virginia.
That's the amount each of their families received under the state workmen's compensation program after the two young construction workers were killed in Aanandale in July 1978, when a 17-foot-deep ditch collapsed and buried them alive.
Because neither man had dependents, their employer's insurer was liable only for their medical expenses - there were none - and burial fees of up to $1,000.
Under the state's workmen's compensation statute, their parents are barred from suing the employer, S.O. Jennings Construction Co. of Fairfax County, even though a federal safety agency has charged that conditions at the job site were unsafe.
Not that a lawsuit could fill the gap in the lives of the two men's families.
Baker and DeGroot, both 25 when they died, were childhood friends. They shared an apartment. DeGroot was engaged to Baker's older sister, Regina, called Ginger, whom he planned to marry last spring. After a joint funeral service, the two were buried side-by-side in a Fairfax cemetery.
The year since their deaths has been one of pain and frustration for their parents, who have gone to the governor, state legislators, prosecutors and local officials. They've unsuccessfully sought state legal action against S.O. Jennings Construction Co., of Fairfax, which employed their sons, tougher safety laws and more inspectors to crack down on dangerous work conditions at construction sites.
Most of all, both families have fought to see that their sons' deaths don't become mere statistics in an annual report of construction fatalities. According to state and federal safety agencies, at least 18 construction workers were killed on the job in the Washington area since January 1978.
"My son's life was worth $1,000 - that's cheaper than shoring," says Julia DeGroot."This is what I've been told by people in construction."
"People see numbers and they see dollar signs," says Joan Baker, Bobby's mother. "What they don't see is a person who was part of your family and isn't here anymore."
In many ways, they were an odd pair.
Michael, more than six feet tall, mucular - "strong as a bull," his mother recalls - a high school dropout who later got his degree in night school, a Navy vet, quiet, good with cars and tools; Bobby, much smaller, more an extrovert, a college scholarship winner, a high school musical comedy star still looking for a stage.
But they both came from families that were fairly large, middle class and Catholic - the Bakers had four children, the DeGroots five - and they shared some less obvious traits. They kept close ties to their families, were loyal to each other and to Ginger.
And they were firm believers in good times, two playful young men still growing up. When Bobby's younger brother had a Halloween party, Michael dressed up as a very convincing Dracula and Bobby drove a cardboard stake through his heart.
Michael had worked at a series of construction sites since returning from the Navy in 1971. Bobby held a variety of jobs including hospital attendant and 7-Eleven store manager since dropping out of college in 1975. They talked about pooling their limited resources once Michael and Ginger were married, and buying a house together.
So one weekend last July, when a friend called to say that S.O. Jennings desperately needed help at the new Chaconas Estates subdivision off Gallows Road in Annandale and would pay $5 or more an hour, both men grabbed it. They went to work laying sewer pipe the following Monday.
The Ocuupational Safety and Health Administration (OSHA) later charged that the 135-foot-long ditch they worked in was not properly braced to prevent a slide or cave-in, that soil from the trench was stored too close to its edge, and that two heavy Caterpillar loaders were operating along the edge. All three factors could have contributed to the collapse.
The ditch caved in at about 10:30 Tuesday morning. The first slide trapped Michael and Bobby up to their waists, workers later recalled. Michael tried to free his legs, and was reaching for Bobby a few feet away when a second avalance buried both men.
Dozens of rescue workers arrived, but as they dug, loose dirt around the trench continued to collapse. It took heavy metal jacks and lumber from a nearby construction site to shore the ditch.
In the 90-degree mid-day sun, it took three hours to reach Michael, who was seven feet underground. Workers found Bobby - 15 feet under - an hour later.
While the workers dug, the families waited at another part of the site. No one would say for certain it was Bobby and Michael who were buried until the bodies were recovered. But Julia DeGroot said she knew.
"I could tell by the way people talked," she recalls. "And I knew the boys were gone. Too much time had elapsed."
For months, both families suffered from the shock of the unexpected deaths. But there were other shocks as well. During visits to the Home Insurance Company in Falls Church, workmen's compensation insurer for Jennings, each family learned that all they were entitled to was the $1,000 burial fee.
They consulted several lawyers who told them they could not sue. Workmen's compensation is a no-fault system where injured workers receive benefits from their employers free of charge. In return, workers give up their right to sue.
In the District of Columbia and Maryland, the story would have been the same except that Maryland's compensation program would have paid all funeral costs, not just $1,000. Had the two men left widows, they would have received two-thirds of their husbands' salaries for up to 500 weeks - a sum that could have totaled $80,000 each.
Critics such as Fairfax attorney Marc Bettius, whom the DeGroots consulted, say the compensation system protects employers more than workers. Knowing that workers can't sue, says Bettius, an employer is less likely to run a safe construction site.
The checks were sent to the funeral homes that handled the burials. In Michael's case, the DeGroots had already paid or the funeral, so the home endorsed the check and sent it to them. It sits in a
"#We'd box with old newpaper clips of the accident.
"Wed never touch a penny of that money," says B. D. DeGroot, Michael's father.
Barred from filing a civil suit, the families went to the Fairfax prosecutor seeking criminal action. But Steven Merril, deputy commonwealth's attorney, told them he couldn't prosecute without proving that Jennings knew the ditch should have been shored.
Merril syas Virginia's worker safety code sections on trenches and soils are too vague to support a criminal case. He notes that manslaughter charges against two construction supervisors in Arlington in a similar case were thrown out of court last April.
"We came home from Merril's office absolutely devastated," recalls Joan Baker. "My son and my daughter's fiance were dead, yet there was absolutely nothing, either civil or criminal, that we could do."
Both Baker and Julia DeGroot began looking for other remedies. DeGroot turned to Fairfax Supervisor Alan Magazine, a close friend and fellow Democrat. He discovered the state had only three construction safety inspectors for all of Northern Virginia. In the 18 months ending June 15, they made 641 inspections. Yet in Fairfax alone, more than 8,000 permits for new construction were issued last year.
As a result, Magazine proposed, and the supervisors agreed to empower the county's building, plumbing and electrical inspectors to check job safety at construction projects and shut down unsafe sites.
State department of labor and industry officials opposed the county's plan, saying that under Virginia's worker safety laws, only the state can shut down job sites. Attorney General J. Marshall Coleman backed the department in an informal opinion earlier this year.
The county decided to ignore Coleman's advice. But Fairfax officials concede they may lose in court against the first company that decides to sue when its construction site is shut down.
Equally unsuccessful was a legislative resolution asking for a state study of workmen's compensation and safety laws. Depite six cosponsors from Northern Virginia - three Democrats and three Republicans - the House of Delegates Rules Committee defeated the resolution 7 to 0 last January.
Magazine blames the construction industry for sabotaging the bill.
Del. Kenneth R. Plum (D-Fairfax), the chief sponsor of the resolution, believes it will take more construction accidents to prod the legislature into action.
"I don't want anybody else to die in a ditch, but the legislators have to learn somehow that that's what's happening," says Plum.
The families have had more success at the federal level. Last December, OSHA roposed $24,300 in fines agains Jennings. According to Charles G. Wicker, director of the state's construction safety division, inspectors had noted at least a dozen previous trenching violations by the company in the last 12 years.
Because of the company's previous record, OSHA attorneys have recommended to the Justice Department that Jennings be prosecuted for criminal violation of federal safety laws. It is one of only about a half dozen cases being considered. Assistant U.S. Attorney Mark Manner in Alexandria says his office will decide within the next few weeks whether to prosecute.
Company president Bruce Jennings said yesterday his firm was not responsible for the accident, which was caused by "an unknown soil condition that was not encountered on other areas of the site and was impossible to know until the slide occurred." The company is contesting the OSHA fine.
As for previous violations, Jennings said, "I don't know anyone who hasn't had them over the years. This company has operated for 20 years without serious injury or death."
He added, "It's not a day that goes by that I don't think about those boys. Anything we do won't bring them back."
All of which isn't good enough for the Bakers and the DeGroots, who are hoping the U.S. Attorney's office will decide to prosecute. But even a guilty verdict won't satisfy Joan Baker.
"Under the federal law, the most someone can get is six months in jail for every worker killed," says Baker. "That's the same amount of time you'd get in Fairfax County for illegally cutting down a tree."
Julia DeGroot recalls that a few weeks after Michael's death she met a woman at the cemetary whose husband had been killed in the Skyline Towers construction accident that claimed 14 lives in 1973. No one was prosecuted in the case despite a state finding that the project was unsafe.
"She told me, "Don't try to do anything - it'll only break your heart"," DeGroot says.
"Losing a son is like losing an arm or a leg. You know that no matter what happens in your life, you'll never be whole again." CAPTION: Picture 1, Life has not been the same for Julia DeGroot, left, Joan Baker, center, and Regina Baker since Robert Baker and Michael DeGroot died in a construction accident in Annandale last year. By Tom Allen - The Washington Post; Picture 2 and 3, MICHAEL DeGROOT AND ROBERT BAKER...Lifelong friends died together in a construction accident.