1. The Do’s And Don’ts Of Workplace
Accident Investigations
AGC Spring Conference – May 2, 2012
Monterey Plaza Hotel & Spa
Presented by:
Eugene F. McMenamin
562-653-3200
emcmenamin@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]
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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
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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
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5. Sacramento Political Climate Will Drive Division
Enforcement Efforts Towards Aggressively
Pursuing 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]
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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)
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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
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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.
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9. Is a General Contractor Liable for a Training
Violation by a Subcontractor Under the
Controlling Employer Theory?
 Using the Skanska decision fact pattern, if
Skanska were a subcontractor, would you be
subject to liability as the controlling employer?
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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
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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
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12. McMENAMIN’S
RULES
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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.
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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
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15. LOOSE LIPS SINK SHIPS
REMEMBER:
It is not what you say
it is what someone “recalls” you said
long after the conversation
and oftentimes under the prodding of a
law enforcement official looking for
scalps
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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]
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17. DO NOT CONDUCT EMPLOYEE INTERVIEWS
WITHOUT A WITNESS
BEST PRACTICE:
Leave witness interviews to
third-party professionals
such as insurance carriers
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18. NO INTERVIEWS OF MANAGEMENT - PERIOD -
END OF STORY
 Attempts to interview management are
suspect. If subpoenaed - take the 5th
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19. AVOID KNEE-JERK INSTRUCTION TO A
PERCIPIENT WITNESS TO THE ACCIDENT TO
SIT DOWN WITH PAPER AND PEN WITH
INSTRUCTIONS TO “TELL ME WHAT HAPPENED
IN YOUR OWN WORDS.”
 Prescription for problems
 Take photos only to document conditions that might
change
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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.
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21. AFTER THE DUST SETTLES, THE
ACCIDENT INVESTIGATION IS NOT
ABOUT SAFETY ANYMORE -
IT IS ABOUT LOSS MITIGATION
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22. REIGN IN YOUR SAFETY DEPARTMENT, WHICH
MAY 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.
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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.
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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.
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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]
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26. ATTORNEY-CLIENT PRIVILEGE IS NARROW.
 Sending a “cc” to your attorney on
documents will not make that document
protected.
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27. IF CITED BY THE DIVISION
ALWAYS APPEAL.
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28. CAL-OSHA FORMS 160 AND 161 -
EMPLOYER’S VERIFICATION OF
ABATEMENT HAVE SERIOUS LEGAL
CONSEQUENCES.
 Exercise caution in their completion.
[Exhibit 12]
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29. NOTES
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30. Thank You
For questions or comments, please contact:
Eugene F. McMenamin
(562) 653-3200
emcmenamin@aalrr.com
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