The Do's and Don'ts of Workplace Accident Investigations

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  • 1. The Do’s And Don’ts Of WorkplaceAccident InvestigationsAGC Spring Conference – May 2, 2012Monterey Plaza Hotel & SpaPresented by:Eugene F. McMenamin562-653-3200emcmenamin@aalrr.com Cerritos • Fresno • Irvine • Pleasanton • Riverside • Sacramento • San Diego
  • 2. Know the Terrain on Which the Battle is Fought  WCIRB Summary of Claims -- 2008 [Exhibit 1]  California Fatalities by Industry -- 2009 [Exhibit 2]  Twenty-Five Most Frequently Cited Title 8 Safety Orders -- 2010 [Exhibit 3]  Ten Most Appealed Title 8 Safety Orders -- 2010 [Exhibit 4] 1
  • 3. Division of Occupational Safety and Health(“DOSH,” “Division,” or “Cal-OSHA”) Target of criticism by Fed-OSHA for being lax on issuing serious violations • Fed-OSHA -- 77% of all citations classified as serious • All state plans -- 43% of all citations classified as serious • California -- 19% of all citations classified as serious - lowest in the nation 2
  • 4. Division of Occupational Safety and Health(“DOSH,” “Division,” or “Cal-OSHA”) (cont’d) A New Sherriff in Town • April 4, 2011 Ellen Widess replaced Len Welsh as Division Chief • Seen as potential shift towards stricter enforcement and promotion of “workers rights” agenda 3
  • 5. Sacramento Political Climate Will Drive DivisionEnforcement Efforts Towards AggressivelyPursuing Employers Heat illness prevention enforcement activity demonstrates Division tilts against employers Skanska USA Civil West CA District, Inc., Docket Nos. 09-R3D2-3886 and 3887 (February 15, 2012) (D. Raymond, Judge) [Exhibit 5] Sunrise Growers Frozsun Foods, Docket No. 09-R4D3- 2850 (June 21, 2010) (S. Hitt, Judge) [Exhibit 6] 4
  • 6. Bureau of Investigations - Labor Code §6315 Responsible for preparing cases for presentation to the District Attorney recommending a criminal filing • Criminal penalties for workplace accidents can be prosecuted as misdemeanors or felonies. (See Labor Code §§6423 (misdemeanors) or 6425 (felonies) 5
  • 7. Workers Compensation Appeals Board(“WCAB”) Serious and Willful Misconduct.Labor Code §4553 - 4553.1 Compensation increased by one-half where the employee is injured by reason of serious and willful misconduct of the employer Uninsurable 6
  • 8. Employee Lawsuit Labor Code §6311. Retaliation for refusal to work in violation of safety orders where violation would create a “real and apparent hazard” to employee OR his fellow employees. Disciplining an injured employee for safety rule infraction. [Exhibit 7] New frontier pushed by Obama Administration. 7
  • 9. Is a General Contractor Liable for a TrainingViolation by a Subcontractor Under theControlling Employer Theory? Using the Skanska decision fact pattern, if Skanska were a subcontractor, would you be subject to liability as the controlling employer? 8
  • 10. Multi-Employer Worksite Rules Labor Code §6400, Title 8 CCR §336.10 - 11 [Exhibit 8] DOSH Policy and Procedures Manual - Multi- Employer Worksite Inspections 9
  • 11. Third-Party Action for Damages Privette Doctrine • Seabright Clarification • Hiring of independent contractors remain liable on theory of non-delegable duties • Retained Control Over Safety Conditions • Direct negligence 10
  • 12. McMENAMIN’S RULES 11
  • 13. PRESUME YOU ARE A TARGET IN ANY JOBSITE ACCIDENT EVEN IF THE INJURED IS NOT A DIRECT EMPLOYEE You may be cited for hazards having nothing whatsoever to do with the accident. 12
  • 14. LOOSE LIPS SINK SHIPS Minimize communications with the Division and workforce about accident Doctrine of Imputed Admissions Beware of a bogus witness tampering/obstruction of justice allegation 13
  • 15. LOOSE LIPS SINK SHIPS REMEMBER: It is not what you say it is what someone “recalls” you said long after the conversationand oftentimes under the prodding of a law enforcement official looking for scalps 14
  • 16. DO NOT CONDUCT EMPLOYEE INTERVIEWS WITHOUT A WITNESS Everything said will be wittingly or unwittingly misconstrued Sample Notice to Employees concerning potential interviews by law enforcement personnel [Exhibit 9] 15
  • 17. DO NOT CONDUCT EMPLOYEE INTERVIEWS WITHOUT A WITNESS BEST PRACTICE: Leave witness interviews to third-party professionals such as insurance carriers 16
  • 18. NO INTERVIEWS OF MANAGEMENT - PERIOD - END OF STORY Attempts to interview management are suspect. If subpoenaed - take the 5th 17
  • 19. AVOID KNEE-JERK INSTRUCTION TO A PERCIPIENT WITNESS TO THE ACCIDENT TO SIT DOWN WITH PAPER AND PEN WITHINSTRUCTIONS TO “TELL ME WHAT HAPPENED IN YOUR OWN WORDS.” Prescription for problems Take photos only to document conditions that might change 18
  • 20. DO NOT RUSH AN ACCIDENT/INCIDENT REPORT - IT CAN WAIT You will be pressed for an incident report. Resist the pressure. Do not generate a full accident investigation report until and unless vetted by your attorneys. [Exhibit 10] The accident investigation report will stick to you like glue. Aim to delay until after any citations are issued. Do not confuse with Form 5020, which must be filed within 24 hours. 19
  • 21. AFTER THE DUST SETTLES, THEACCIDENT INVESTIGATION IS NOT ABOUT SAFETY ANYMORE - IT IS ABOUT LOSS MITIGATION 20
  • 22. REIGN IN YOUR SAFETY DEPARTMENT, WHICHMAY FEEL COMPELLED TO “DO SOMETHING.” Doing nothing, saying nothing and writing nothing may be the preferred option. Assume you are not getting the real story because everybody is engaging in CYA. Time and distance are the cure. 21
  • 23. G.L. DOLLARS ARE CHEAPER THAN W.C. DOLLARS That injured employee that caused his own accident will invariably sue other parties. Even if defense is tendered back to you through contractual indemnity language, you might want to hold your nose and root for him. 22
  • 24. THERE IS NO OBJECTIVE REALITY. Reality is what your expert witnesses can persuade a jury. Do not compromise their creativity by an inconsistent paper trail. 23
  • 25. TRAIN YOUR WORKFORCE THAT ANYTHING SAID OR WRITTEN, POST-ACCIDENT, WILL BE PICKED OVER AND DISSECTED BY A HOST OF LAWYERS AND CONSULTANTS FOR YEARS TO COME. No such thing as an accident - employer’s failure to train and supervise. Division’s Policy and Procedure Manual - 170 “Accident Investigation” [Exhibit 11] 24
  • 26. ATTORNEY-CLIENT PRIVILEGE IS NARROW. Sending a “cc” to your attorney on documents will not make that document protected. 25
  • 27. IF CITED BY THE DIVISION ALWAYS APPEAL. 26
  • 28. CAL-OSHA FORMS 160 AND 161 - EMPLOYER’S VERIFICATION OFABATEMENT HAVE SERIOUS LEGAL CONSEQUENCES. Exercise caution in their completion. [Exhibit 12] 27
  • 29. NOTES 28
  • 30. Thank YouFor questions or comments, please contact: Eugene F. McMenamin (562) 653-3200 emcmenamin@aalrr.com 29