OSHA can be a valuable resource for lawyers and their clients in workplace injury litigation. That is well known to the lawyers in our firm who are involved in work-place litigation. I asked Kendall Dunson, a lawyer who has handled a number of work-place injury and death litigation for our firm, to help our readers understand how OSHA can help in litigation.
Kendall was recently referred a workers’ compensation client who unfortunately had lost the ability to see in one of his eyes following an on-the-job injury. Kendall asked the worker if he had spoken to OSHA and he replied he had not. Kendall says he initially wondered if the employer had failed to report the injury.
The worker explained to Kendall that he felt OSHA was an advocate for the employer and that he was hesitant to call back. The worker was told to call OSHA immediately because OSHA is not an ally of the employer and that the OSHA report would be a tool Kendall could use in prosecuting the worker’s case. This man is not the first client to misconstrue OSHA’s role. For that reason, it is important for workers and lawyers representing injured workers to fully understand OSHA and how its role and purpose can serve injured workers.
As most of you will know, OSHA stands for the Occupational Safety and Health Administration. It is an agency of the United States Department of Labor and its goal is to ensure safe and healthy working conditions through inspections, training and enforcement actions. OSHA’s website (OSHA.gov) is rich with information and statistics valuable to attorneys practicing in this field. Because some accidents are mandatory reports, OSHA is the best source for statistics on injury trends in the United States.
OSHA requires the employer to report all work-related fatalities within eight hours and all inpatient hospitalizations, amputations and losses of an eye within 24 hours. In addition to employer mandatory reporting requirements, employees may report conditions and request an OSHA inspection if they believe unsafe working conditions exist. Kendall says he has recommended many employees to contact OSHA to report unsafe conditions and each such employee was justly concerned about losing their job.
It should be noted that OSHA regulations specifically prevent employers from retaliating against whistleblower employees. There is also a provision for anonymous reporting. So if a worker approaches a lawyer for advice about reporting what they believe are unsafe working conditions, the worker should be encouraged to call OSHA. That report could prevent injuries or deaths and could serve as valuable evidence of notice of a dangerous condition in a later incident.
Kendall handled a fatality case a few years ago where his client’s spouse was killed on the job. He knew OSHA would investigate the accident so Kendall submitted a Freedom of Information request for OSHA’s investigation. He was able to obtain OSHA’s citations against the employers who were involved, OSHA’s investigation including photographs and statements, and OSHA’s imposition of penalties. The OSHA investigation is an asset in that OSHA has access to the scene within hours of the event occurring.
Because a potential client may not get to a lawyer until months or even a year has passed, this makes OSHA’s work very important. OSHA’s investigation is a great source of information. In addition to the incident report, Kendall obtained prior OSHA investigation reports only to discover that the hazard that killed his client’s spouse had also killed another individual nine years earlier.
After reviewing those reports Kendall knew the hazard, what happened, why, and which witnesses he needed to depose. The prior report was the basis for Kendall’s punitive damages arguments. In full disclosure, our firm handled the first death case involving that equipment; however, because the fines levied against one of the employers exceeded a certain threshold ($7,000), Kendall knew this was a repeat violation that would have triggered a second Freedom of Information request for any fatality. OSHA lacks the ability to assess heavy fines ($7,000 max for serious violations and $70,000 maximum for repeat or willful violations), and the assessed fines are often reduced. OSHA’s real power originates from the ability to conduct inspections following complaints and reportable incidents.
Kendall says all of our lawyer readers who handle workplace litigation, need to heed this warning: do not base your analysis of third party claims solely on the OSHA report. OSHA only focuses on the conduct of the employer. OSHA does not focus on manufacturers of machinery. For example, an unguarded machine that kills or injures an employee will be photographed and discussed in OSHA’s report. However, the citation will state the employer failed to guard a known hazard.
Almost 99 percent of the time, employers purchase machinery used in their business from other companies. The designer/manufacturer of that machinery is primarily responsible under the common law for eliminating or guarding recognized hazards. A reading of an OSHA report with an untrained eye would lead one to believe that only the employer is responsible for an incident. Thus, OSHA reports are a useful tool, but they are not the only tool that should be used to analyze an incident for third party liability.
Anytime a death or serious injury occurs on the job, a third party analysis must be conducted. The failure to conduct a proper third party case analysis could result in a failure to adequately compensate the client or their family and a legal malpractice claim against the offending lawyer. We all know that state workers’ compensation laws do not adequately compensate injured workers, but third party claims certainly can. If you want additional information, or have questions, contact Kendall Dunson at 800-898-2034 or by email at Kendall.Dunson@beasleyallen.com.
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