Buffalo’s downtown housing renaissance, a long-awaited dream come true, came at a huge cost. And few paid as big a price as Dan D’Andrea.

D’Andrea, a young, ambitious construction worker eager to get his own contracting business off the ground, suddenly found himself in a wheelchair two years ago.

He was working at the old Holling Press building, the site of one of downtown’s first housing rehabilitation projects, when a large piece of scaffolding fell from above and landed on his back.

“I pretty much lost my life that day,” D’Andrea said of the December 2004 accident that left him paralyzed from the chest down.

At least three other workers have been seriously injured at downtown work sites, two fatally. All three, as well as D’Andrea, were working in older buildings targeted for new housing.

Most people know the story of Jonathan Fundalinski, 24, the construction worker who fell to his death while working at the Webb Building on March 20.

But Fundalinski was not the first to die or get hurt at a construction site or at other workplaces across the region. His accident highlights a common and, worker advocates say, largely preventable cause of workplace deaths.

Since the start of 2003, 29 people have died in workplace accidents in Western New York. A third of those workers died from falls.

When Cheryl Burgher of Clarence read about Fundalinski’s death, it reopened an old emotional wound. Her 23-year-old son Brad died in a strikingly similar accident in 2003. He fell through an uncovered stairwell in a house being built in Wheatfield.

“It forced us to relive a horrible event. It sounded exactly the same,” she said. “Of course, there are simple ways to prevent these [falls], and they’re not being done.”

Construction workers are not the only ones at risk of falling.

The year before D’Andrea was injured, an accident in the same downtown building killed maintenence employee George Goupil.

A part-time building worker, the Lakeview resident, 63, was preparing for retirement when he died. His duties involved operating the elevator for the few small businesses that remained in the building before it was converted to apartments.

“You had to open the doors with a pry bar,” said Robert D. Steinhaus, the lawyer for Goupil’s estate.

Apparently the elevator wasn’t where Goupil expected it to be and he fell down the shaft, Steinhaus said. No one saw the accident, and Goupil’s body wasn’t found until some time after the accident.

Three of the accidents — Goupil’s, D’Andrea’s and Burgher’s — resulted in OSHA inspections, but only one ended in a fine.

After Burgher’s fall, OSHA fined the contractor, Hartwig Construction, $3,450. That was later reduced to $2,400 as part of a settlement.

OSHA says its penalties are based only on safety violations, not whether there’s an injury or a death.

In the end, all three families turned to the courts for satisfaction.

D’Andrea, whose injury eventually may cost him his life, received a $27 million settlement from insurance carriers for the four firms renovating the Holling Press building.

“I needed to be compensated,” D’Andrea said last week. “I also wanted to make a statement, and the only way I could make someone pay was to make someone pay.”

Burgher’s family sued the general contractor, Beiter & Spoth Builders, and received a settlement of about $600,000 from insurers, according to their attorney.

Goupil’s three children also are suing but their case is still pending. The defendants are the elevator company, the city’s appointed elevator inspector and an insurer.

“When something can be done that doesn’t cost much or take a whole lot of time to prevent someone’s death [and it’s not done], it’s a tragic thing,” said Lawrence J. Regan, the Burghers’ lawyer.

In Burgher’s case, and in most falls on construction sites, the injured parties hang their hat on the state’s “scaffolding law,” the law contractors are now trying to repeal.

Business groups such as the Buffalo Niagara Partnership claim the law places all the onus on employers, even in cases where the worker may have been partly responsible for the accident.

They say the law, enacted in 1885 to protect employees working in New York City skyscrapers, is the only one of its kind in the country. They also claim it drives up the cost of liability insurance and adds $10,000 to the cost of every house built in Western New York.

“I can have the safest workplace in the world and, in the end, I still have to pay, no questions asked,” said Frank DeCarlo, president of Paragon Restoration in Depew.

DeCarlo and other local contractors filed suit in federal court last year challenging the constitutionality of the scaffolding law. They contend the law violates the bedrock principle of “innocent until proven guilty.”

“We just want the ability to defend ourselves,” said Jeff Valone, president of Try-Lock Roofing in the Town of Tonawanda.

So far, their efforts have failed . One of the reasons is the lobbying by the other side, which includes trial lawyers and organized labor.

Those lobbyists contend that, without civil damage awards, employers would have little financial incentive to keep their work sites safe.

“It’s the tragedy that often serves as our most eloquent argument,” said Terrence M. Connors, who represented D’Andrea. “When you get lax with the law, you get injuries and often they’re tragic injuries.”

Union leaders say the law is a deterrent.

“There are some pretty bad contractors out there,” said Paul Brown, president of the Buffalo Building & Construction Trades Council. “They choose not to spend money on stuff like training and workplace safety, and think that’s OK.”

Brown said some contractors follow the rules and pointed to huge projects like the BlueCross BlueShield building downtown and the General Motors modernization project in Tonawanda.

Neither one resulted in a single serious injury, he said.

Jury awards in a worker’s death can far outweigh coverage provided by the state-mandated insurance for workplace injuries. Workers’ Compensation pays a maximum of $20,800 a year to victims’ dependents , a sum that will rise to $26,000 in July. The payment ends if a spouse remarries.

But to a grieving mother, all the talk about penalties and compensation misses the point.

“I hope something can be done before someone else suffers like this,” Cheryl Burgher, Brad’s mother, said.

“Before more children die.”

Information from: www.buffalonews.com

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