Houston Chronicle Sunday

Death on state road’s impact

Family of worker killed on the job uncovers Texas’ insurance oversight

- By Dug Begley

RYE — Less than two years out of high school, Matthew McCoy did what many young men in Texas do and found a decent job for an honest day’s labor.

Weeks after going to work for a state highway maintenanc­e contractor in March, McCoy was part of a road crew replacing the lane reflectors along Interstate 20 in west Pecos, where Texas is so flat the sky touches the low, dry grasses at the end of the horizon. McCoy and another worker were in the lead truck of a four-vehicle maintenanc­e convoy. Their job was to pry the current reflectors — those bumpy plastic objects roughly every 50 feet along an interstate — out of the pavement and toss them in the back of the pickup.

Typically, it is a three-person job to grab the reflectors and go. But on April 6, McCoy was pulling double-duty by inching the truck forward, in between grabbing the reflectors himself and tossing them in the back. Normally, a driver would stay in the truck as the two other workers grabbed

the reflectors and tossed them in the bed.

As they popped reflectors out of place and moved ahead, McCoy got ahead of three trailing vehicles — or they lagged behind him, police were not clear — including the rear vehicle that was directing traffic out of the slow lane of I-20 with a flashing yellow arrow. After passing the three rear vehicles, Jay Dilorenzo, 47, merged his new Freightlin­er semitracto­r and the truck trailer he was hauling into the slow lane, following another truck.

Based on the police report, Dilorenzo then saw the truck McCoy was driving, tried to steer back to the left, but didn’t make it in time. The semi-tractor trailer hit the pickup’s left rear, spinning it off the roadway and ejecting McCoy from the driver’s seat, fatally injuring the 20-year-old. The other worker narrowly missed being hit by diving out of the way because he was outside the truck. McCoy was rushed to a hospital in Odessa — about 80 miles away — where he died six days later.

“He didn’t have a broken bone anywhere,” Kaye McCoy said, gathering her composure as she recalled the incident and the havoc it brought to their family. “It was a head injury.”

In reviewing the tragic incident following Matthew McCoy’s death, Texas transporta­tion officials said there’s room for improvemen­t in maintainin­g records and holding state contractor­s responsibl­e. Plans are underway to revise language to toughen breach of contract terms in state contracts, to include improper workers compensati­on insurance filings. Though finalizing the new rules will take months of legal vetting and ultimately approval from the Texas Transporta­tion Commission, officials called it a necessary improvemen­t to make sure the thousands of people welding, pouring concrete and maintainin­g state highways are protected. From grief, action

Less than two months after Matthew was tragically killed on his job in West Texas, his grandparen­ts Joe and Kaye McCoy, did what many grieving families would do and searched for answers to the tragedy that seemingly made no sense.

They sought to understand how Dilorenzo’s truck came to be in the midst of a highway work zone, how vulnerable it seemed Matthew’s bosses left him and what could be done to discipline their grandson’s employer, get compensati­on for his death on the job and make sure this kind of tragedy doesn’t happen again.

“This thing has devastated our lives,” Joe McCoy said recently over the phone, his voice slowing to choose his words. “You have no idea how much we loved him.”

Grief turned to anger after the workers compensati­on claim Matthew’s mother, Rebecca Horrigan, filed was denied in June. Now, Kaye McCoy was looking for a fight with the insurance company, and the Texas Department of Transporta­tion, which allowed the contractor hire for the highway maintenanc­e job Crawford-based JASCO, to file erroneous paperwork that didn’t mention a subcontrac­tor it hired for the job, who JASCO-claimed was Matthew’s employer.

She wanted the state to explain itself, and possibly even punish one or both of the companies — JASCO, the contractor, or Matthew’s actual employer, Smitty and Sons Enterprise, the subcontrac­tor. Neither company responded to requests for comment for this story.

The McCoys channeled grief and anger into determinat­ion to hold Texas transporta­tion officials responsibl­e for better management of road maintenanc­e contracts, taking on a state system from a modest house down Mys- tery Road — a gravel and dirt lane separating the East Texas forest and the big thicket in rural Liberty County.

For families involved like the McCoys who seek relief via workers compensati­on claims, any hiccups or inaccuraci­es can be devastatin­g, and the state’s ability to police highway project paperwork is tricky to assess.

“Constructi­on is a really fluid process, and we would love for there to be more documentat­ion,” said Shonn Brown, a Dallas lawyer who has represente­d citizens, government agencies and insurance companies in a host of liability claims. “But the reality is, it is something hardly anyone pays attention to. As long as the job gets done on time and there is no issue and no one gets hurt, I don’t think anyone (outside TxDOT) looks into if the paperwork is all there.” State admits mistake

Following a letter-writing effort by Kaye McCoy, Texas Department of Transporta­tion officials acknowledg­ed in July “an omission in our sanction rules” regarding subcontrac­tors on state road jobs submitting proof of valid

“The reason I was upset, well, losing Matthew was the reason I was upset, but TxDOT had rules and regulation­s that were mandated. It felt to me that TxDOT had not done its due diligence.” Kaye McCoy, grandmothe­r of Matthew

workers compensati­on insurance.

Despite agreeing with McCoy that the state contractor JASCO didn’t properly alert the state to the subcontrac­tor who hired her grandson or file the proper proof of workers compensati­on insurance, TxDOT cannot penalize the contractor, or the subcontrac­tor that wasn’t registered for this highway job. In fact, JASCO has subsequent­ly been the low bidder on other state highway maintenanc­e jobs, including one in October to repair and seal cracks in highways in Cooke County, near Wichita Falls.

State officials said they simply lack a mechanism under TxDOT regulation­s to disqualify companies that hire subcontrac­tors and don’t properly notify them as JASCO did, or turn in the wrong workers compensati­on forms.

The confusion over improper workers compensati­on paperwork and the state having limited accountabi­lity over a contractor, state officials said, is extremely rare, based on more than 40 other state highway maintenanc­e contracts reviewed by the Houston Chronicle for approved in 2015 and 2016. The contracts showed no signs of improper insurance filings, as most were awarded to pre-qualified bidders like JASCO that have their workers compensati­on insurance informatio­n on file.

Many road building and maintenanc­e industry of- ficials — though reluctant to criticize another business openly — said they’d never seen such an error regarding proper insurance coverage by a contractor in decades of state road improvemen­t contracts, citing the extreme risk a company hired to do a state job would expose itself to for not having the proper proof of workers compensati­on insurance.

Though exceedingl­y rare given that around 2,500 workers are present at any time along Texas highways, fatalities occur, and nearly half of workers killed in constructi­on zones result from incidents in which vehicles strike workers. From 2011 to 2014, the last year verified informatio­n is available from the U.S. Bureau of Labor Statistics, 22 road workers were killed in work zones after being struck by a driver in Texas, of the 229 killed nationwide.

“(TxDOToffic­ials) do inspect work sites periodical­ly and part of that inspection is to ensure that safety is an important aspect of job performanc­e,” TxDOT spokeswoma­n Veronica Beyer said, responding to questions about McCoy’s death. “In Ms. McCoy’s case, a third-party truck driver was the cause of death of her grandson.” Frustratio­n mounted

Still, as Matthew’s grandparen­ts dived deeper into the circumstan­ces of the workplace wreck that killed him, their frustratio­n only compounded.

Because JASCO was not Matthew’s employer, the company’s workers compensati­on insurance wouldn’t cover him anyway, and in fact one of the insurance forms JASCO submitted clearly stated the insurance did not cover alternate workers from subcontrac­tors. What’s more, subcontrac­tors are not valid on state jobs, per TxDOT and Texas insurance laws.

JASCO, which otherwise has a solid but limited track record of conducting maintenanc­e for TxDOT, didn’t mention a subcontrac­tor on the job Matthew worked on when it filed its paperwork with TxDOT for the road work on I-20. State officials, meanwhile, failed to catch the error and accepted a proof of insurance form from JASCO that was — by TxDOT’s own policies — not valid as proof of workers compensati­on insurance.

“The reason I was upset, well, losing Matthew was the reason I was upset, but TxDOT had rules and regulation­s that were mandated,” Kaye McCoy said. “It felt to me that TxDOT had not done its due diligence.”

Over more than three months of back-and-forth that included direct appeals by mail to Gov. Greg Abbott, Kaye McCoy received acknowledg­ement that TxDOT erred in overseeing the paperwork. In the end, the state plans to strengthen its breach of contract terms with contractor­s, but there would be no sanctions against JASCO and the company continues as a state contractor. No sanctions

For legal purposes, JASCO’s workers compensati­on insurance must cover employees, but for this highway job Smitty and Sons — run by the cousin of the head of JASCO — was never a valid subcontrac­tor, TxDOT concluded. That meant the state could not sanction JASCO, TxDOT officials said, because they technicall­y hadn’t breached their contract with the state.

McCoy’s mother has a pending lawsuit against Dilorenzo and his company, Triple D Supply, contending his failure to stay out of the constructi­on area caused the April wreck and cost her son his life. JASCO and Smitty and Sons have since been added to Horrigan’s lawsuit, which was moved from federal court to Reeves County District Court, where the accident occurred.

For his grandparen­ts, Matthew’s death, and their aggravatin­g ordeal to hold the state accountabl­e for it, remains particular­ly painful because they had been a constant in his life.

“I am the only man alive who ever bought the boy a jar of baby food or changed his diaper,” Joe McCoy said.

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McCoy
 ?? James Nielsen / Houston Chronicle ?? Joe McCoy, with his wife, Kaye, says the death of their grandson while he was working a highway maintenanc­e job in West Texas “has devastated our lives. You have no idea how much we loved him.”
James Nielsen / Houston Chronicle Joe McCoy, with his wife, Kaye, says the death of their grandson while he was working a highway maintenanc­e job in West Texas “has devastated our lives. You have no idea how much we loved him.”
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