Huie, Fernambucq & Stewart, LLP (Birmingham, AL) Article: Common Pitfalls to Avoid When Investigating Workplace Incidents

Although recent data supports that they are decreasing in frequency across all sectors, work related incidents resulting in employee injuries and fatalities are unavoidable in the construction industry. Even though the industry has done, and continues to do, a much better job focusing on worker safety, the reality is due to the nature of the work and the environment in which it takes place. Construction has been deemed one of the most dangerous industries in the United States. From the more common incidents that require simple medical treatment on site to the rarely occurring fatal incidents, like OSHA’s “Fatal Four,” the type and severity of workplace injuries on construction sites has, and will for the foreseeable future, span the spectrum.

Four Signs It Might Be Time to Re-evaluate Your Approach to Handling Workplace Incidents

1. Undefined Plan

Perhaps the most simple and important, yet often overlooked, practice to effectively handle investigating incidents that have the potential to involve OSHA investigations or implicate workers’ compensation laws is to have a written plan in place before the incident occurs. It is critical that the investigation begin as soon as the appropriate medical care has been rendered and the scene has been safely secured. Time is of the essence in these situations.

Solution: The age-old adage “prior planning prevents poor performance” remains true, even in the context of investigating workplace incidents. The only way to effectively operate in this manner is to have a plan in place beforehand that every member of the team understands and has practiced. That way, when the incident occurs everyone understands his or her role, why it is important, and the plan can be executed. This will pay dividends later down the line once the lawyers, OSHA investigators, or any other third-parties become involved with the incident. There are many “best practice” articles discussing the mechanics of exactly what should be done, but it starts with having a plan.

2. Lack of Documented Evidence

For those incidents that eventually end up as legal claims and work their way through the court or arbitral process, it most likely will be years before the evidence is ever put before a jury or other fact finder so that a final decision can be rendered. In many instances, by the time the case makes its way to the discovery phase where documents are exchanged for the first time and depositions of the witnesses are ready to be taken, the witnesses who possess the firsthand knowledge of the incident are no longer employed, have left the area, or for one reason or another cannot be located so that their testimony can be secured for trial.

Solution: One of the very first tasks employers should do, and rightfully so, to investigate an incident is to gather and generate pertinent materials related to the incident as close in time to the incident as possible.  The importance of generating good, quality photographs and video of the scene and involved equipment as quickly as possible to capture the evidence cannot be overstated. The more evidence that is available to help adjudicate the dispute the better, generally speaking. This is particularly true in situations where the injury was caused by or involved a piece of equipment. There are times, often at no fault of anyone, where the equipment, which is a critical piece of evidence, for whatever reason, becomes unavailable at some point after the incident. This can be problematic in situations where the injured employee’s attorneys and/or experts did not have an opportunity to inspect the equipment, and often this will result in a claim for spoliation of evidence. Even if, in the best-case scenario, the judge or arbitrator eventually rejects the spoliation claim, having to engage in that fight will unnecessarily increase the cost of defense. Having good, quality photographs and video of the equipment can help alleviate these concerns.

3. Failing to Engage Legal Counsel

While preservation and early collection of evidence is important, a common mistake employers make during investigations of workplace incidents is rushing to obtain incident reports or written or recorded witness statements. Often, the rush to obtain this information results in unfavorable materials which later become the very evidence at trial or arbitration that the fact finder determines proves liability of the employer.

SolutionWhile it does not make sense to do so in every instance, for incidents involving serious injuries or fatalities, employers would be well served to consider engaging outside counsel prior to obtaining incident reports and witness statements. The reason for this is two-fold. First, while it is not always the case, in general lawyers are better at interviewing and obtaining statements from witnesses than non-lawyers in incidents which are likely to be litigated because they view the materials in the context of how the information obtained may be perceived by a jury or fact finder. At a minimum, engaging outside counsel early in the process, before these materials are generated, would be a positive step because a lawyer brings a different perspective to the team.

Second, and one may argue more importantly, engaging counsel to assist in the preparation of these materials potentially protects them from disclosure based on privilege. That is not to say that any materials generated with the assistance of a lawyer, or if the incident eventually turns into a legal claim, are privileged. However, engaging counsel early in the process to assist in preparing these initial materials at least sets up the argument, which may become important later, that the materials are not discoverable under the particular Rules of Civil Procedure which apply to the dispute.

4. Narrow Investigative Vision

One of the first things aspiring lawyers learn in law school is to “think like a lawyer.” Along those same lines, employers investigating workplace incidents which end up being investigated by OSHA would be well served to learn to “think like an OSHA investigator.”

Solution: Employers should be prepared to provide OSHA’s investigators with a thorough root cause analysis and show compliance with OSHA’s “four-step systems” approach to investigations. When an incident occurs, it can be easy for the employer investigating the incident to focus primarily on what specifically happened in the instance to cause the incident. While the “what” of a particular incident is certainly important – and for those instances that progress into civil legal claims it is the ultimate question someone will have to explain, and the finder of fact will have to answer – OSHA typically does not take such a narrow view of investigations. OSHA has been clear in its own published literature that its investigators will expect employers to “look beyond what happened to discover why it happened.” Suffice it to say that the employer who investigates with these principles in mind, the one who is able to “think like an OSHA investigator,” will be well prepared to efficiently and effectively maneuver through OSHA’s investigative process and put itself in the best position to limit liability thereunder.

Authored by Bart Cannon with collaborative insight from Donald McKay and Javier Garza with CEMEX