Does your safety culture prevent accidents or prepare you for 3rd party inspections? How would you rate your recordkeeping (driver files, training files, etc.)? The economy is strengthening and construction jobs are on the rise. Naturally your focus is on keeping your job site manned and meeting daily demands, but often these busy times are when routine file management, documentation and safety protocols become less vigilant and when regulatory agencies seem to increase the number of inspections. Mr. Smith and Mr. Silva from NBIS’s Risk Management Team will review the common violations and citations companies typically see, as well as, solutions to managing risk within your business. Learn how to keep your people and your business inspection ready, establish efficient file/document management systems, training programs and safety meetings. Speakers: Bill Smith, EVP Claims & Risk Management, NBIS (NationsBuilders Insurance Services, Inc.); Tyrone Silva, Risk Manager, NBIS (NationsBuilders Insurance Services, Inc.)

1. ARE YOU INSPECTION
READY?
Bill Smith EVP Claims And Risk Management
Tyrone Silva Risk Manager/Contract Management

2. What are we talking about ?

3. What are we talking about ?
• What prompts an OSHA inspection?
Many different circumstances can prompt an OSHA
inspection, ranging from a workplace death to mere chance.
The following are some of the reasons why OSHA may inspect
your facility:
• Catastrophes and fatalities
• Employee complaints
• Referrals, which can come from any entity, including
another government agency
• Programmed inspections, in which worksites are randomly
selected, or based on emphasis programs, injury rates or
previous citations
• Follow-up inspections

4. OSHA Penalties !!!
• Increase
• What about the Civil side

5. We See It Everyday and So Does
Everyone Else?

6. Here Is What They Say and Use
Against You ?

7. Protect Your Company With…
• Right Insurance Policy
• Right TPA that will handle your claim and
know what you do
• Right Training and documentation
• Right Experts hired that understand the
responsibilities of each party
• Right legal representation that knows all
the above and how to manage the CHESS
GAME that is about to be played

8. On the Initial Notice of Loss and
Investigation
• Who is on the Rapid Response Team?
• Company Safety Director
• Insurer
• Outside Counsel
– Independent Adjuster (IA)
– Experts

9. Initial Notice of Loss and Investigation
• Outside Counsel’s Role
• Coordinate response and provide early evaluation of liability
and exposure
– Engage and direct experts and IA’s
– Marshal and preserve evidence
– Witness interviews
– On-scene investigation
– Interface with government investigators (OSHA)

10. Spoliation
• What is spoliation?
• Destruction/failure to preserve evidence
necessary for contemplated or pending litigation
• Notice of injury ≠ notice of contemplated
litigation
• What are the consequences?
• Presumption that evidence would have been
harmful
• Range of sanctions

11. Pay Attention

12. OSHA Investigation
• How, when, and why OSHA gests involved
• The process
• OSHA's authority (range of potential
sanctions)
• Employer's obligations and rights
• Potential impact on civil claims
• Preparing for the OSHA investigation
• Participating in the OSHA investigation

13. Employer Responsibilities
• Under the OSH law, employers have a responsibility to provide a safe workplace.
This is a short summary of key employer responsibilities:
• Provide a workplace free from serious recognized hazards and comply with
standards, rules and regulations issued under the OSH Act.
• Examine workplace conditions to make sure they conform to applicable OSHA
standards.
• Make sure employees have and use safe tools and equipment and properly
maintain this equipment.
• Use color codes, posters, labels or signs to warn employees of potential hazards.
• Establish or update operating procedures and communicate them so that
employees follow safety and health requirements.
• Employers must provide safety training in a language and vocabulary workers can
understand.
• Employers with hazardous chemicals in the workplace must develop and
implement a written hazard communication program and train employees on the
hazards they are exposed to and proper precautions (and a copy of safety data
sheets must be readily available). See the OSHA page on Hazard Communication.
• Provide medical examinations and training when required by OSHA standards.
• Post, at a prominent location within the workplace, the OSHA poster (or the state-
plan equivalent) informing employees of their rights and responsibilities.

14. Employer Responsibilities cont.
• Report to the nearest OSHA office all work-related fatalities within 8 hours, and all work-related
inpatient hospitalizations, all amputations and all losses of an eye within 24 hours. Call our toll-free
number: 1-800-321-OSHA (6742); TTY 1-877-889-5627. [Employers under federal OSHA's
jurisdiction were required to begin reporting by Jan. 1, 2015. Establishments in a state with a state-
run OSHA program should contact their state plan for the implementation date].
• Keep records of work-related injuries and illnesses. (Note: Employers with 10 or fewer employees
and employers in certain low-hazard industries are exempt from this requirement.
• Provide employees, former employees and their representatives access to the Log of Work-Related
Injuries and Illnesses (OSHA Form 300). On February 1, and for three months, covered employers
must post the summary of the OSHA log of injuries and illnesses (OSHA Form 300A).
• Provide access to employee medical records and exposure records to employees or their authorized
representatives.
• Provide to the OSHA compliance officer the names of authorized employee representatives who
may be asked to accompany the compliance officer during an inspection.
• Not discriminate against employees who exercise their rights under the Act. See our
"Whistleblower Protection" webpage.
• Post OSHA citations at or near the work area involved. Each citation must remain posted until the
violation has been corrected, or for three working days, whichever is longer. Post abatement
verification documents or tags.
• Correct cited violations by the deadline set in the OSHA citation and submit required abatement
verification documentation.
• OSHA encourages all employers to adopt an Injury and Illness Prevention Program.

15. General Duty 5 (a) (1)

16. OSHA Process
• Look to a Vertical standard first
• The general duty provisions can be used by OSHA only
where there is no standard that applies to the particular
hazard and the employer has its own employees exposed
to the alleged hazard.
• All the following elements are necessary for OSHA to prove
a general duty clause violation:
• 1) The employer fails to keep the workplace free of a
hazard to which its employees were exposed.
• 2) The hazard was recognized.
• 3) The hazard was causing, or was likely to cause, death or
serious physical harm.
• 4) There was a feasible and useful method to correct the
hazard.

17. OSHA Process
• OSHA sometimes gets it wrong
• In many situations, OSHA’s 5(a)(1) citations have incorrectly alleged
that a violation was the failure to implement certain precautions,
corrective measures or other abatement steps rather than the
failure to prevent or remove a particular hazard.
• The occurrence of an accident does not necessarily mean that an
employer has violated Section 5(a)(1), although the accident may
be evidence of a hazard. OSHA has instructed its compliance
officers that accident facts may be relevant and must be gathered,
but a 5(a)(1) citation must address the hazard in the workplace, not
the particular facts of an accident.
• Any hazard for which a Section 5(a)(1) violation is issued must be
reasonably foreseeable.
• Hire a good OSHA attorney if it’s important for you to fight the
citation… NBIS has a good referral in Michael Rubin

18. OSHA Process
• Employers have the right to an opening conference.
This may be the most important stage of the inspection
because it is the time when employers can:
• Negotiate to narrow the scope of the inspection.
• Ask questions about the purpose of and probable
cause justifying the inspection.
• Try to establish ground rules with OSHA about how the
inspection may proceed, from the collection of
documents (through written requests only), to
interviews (scheduled in advance), and physical access
to the facility (only with a management escort).

19. Employer Rights
The Walkaround
After the opening conference, the inspector,
accompanied by management and employee
representatives, will check the safety and/or
health hazards in the complaint. The inspector
may decide to check for other hazards or even
to expand the inspection to cover the entire
workplace.

20. Employer Rights
The Closing Conference
The inspector is required to have a closing conference,
jointly or separately, with company and employee
representatives at the end of the inspection. if
management wants separate closing conferences, OSHA
will hold the employee representative conference first to
allow for any more employee input. OSHA will discuss
"apparent violations" and ways to correct hazards,
deadlines, and possible fines. A second closing
conference may be held if needed information, such as
sampling results, was not initially available.

21. Employer Rights
The employer must not discriminate against employees
for health and safety activity. If the employer contests
an OSHA citation, the employees have a right to elect
"party status” before the Occupational Safety and Health
Review Commission (an independent agency). They
must be notified by the employer if the employer files a
notice of contest or a petition for modification of an
abatement date. They have a right to contest the time
OSHA allows the employer for correcting a hazard.
(Employees, unlike employers, cannot contest other
aspects of the citation before the Review Commission). A
contest must be in writing and must be filed within 15
working days after receipt of the citation.

22. Employer Rights
OSHA Citations
OSHA may chose to issue citations and financial penalties
to the employer for violating specific OSHA standards or
regulations or for violating the "general duty clause"
Section 5(A)( I) of the Act OSHA does not cite or fine
employees for violation of their responsibilities. OSHA
must generally issue any citations within six months of
the occurrence of any violations. Citations are supposed
to be mailed to employee representatives no later than
one day after the citation is sent to the employer.
Citations can also be malted to any employee upon
request.

23. Employee Responsibilities
Employee Misconduct as a defense:
• The employee misconduct defense has several elements, all
of which must apply for the employer to prevail.
• As set forth in OSHA’s Field Operations Manual, to prevail
on the affirmative defense of “Unpreventable Employee
Misconduct—Isolated Incident,” the employer must show
that it:
• Established a work rule adequate to prevent the violation.
• Effectively communicated the rule to employees.
• Established methods for discovering violations of work
rules, and yet did not know about an isolated violation of
the work rules.
• Established effective enforcement of the rule when
violations are discovered.

24. Employee Misconduct
Simple Example where an employee was caught not wearing PPE:
• In this case the employer would have sufficient evidence to prove
the employee misconduct defense if it can demonstrate that:
• The employer has an established PPE policy that addresses the type
of PPE for which the employer was cited.
• Affected employees (including the employee who was found not
wearing the PPE) have been trained on the PPE policy.
• The employer conducts regular audits of the workplace to ensure
employees are following the PPE policy.
• Employees are disciplined when they are found to be in violation of
the PPE policy (or other safety rules).
• Documentation is the key to all of these elements. In OSHA’s mind,
if it’s not documented, it didn’t happen.

25. Employee Misconduct
In most cases employers are able to produce a procedure
and some training records, but often struggle to present
written evidence that they are actively supervising their
employees to ensure compliance with safety policies, and
struggle even more to demonstrate that they enforce
violations through discipline. As such, an employer’s
policies should be written and readily accessible.
Employers should also maintain written records of
training, including dated sign-in sheets, training agendas,
test/quizzes, document audits and audit findings, and
issue written discipline (even document it when you issue
a verbal warning).

26. Civil Claims
While quickly settling an OSHA citation arising out
of an accident may seem at the time to be the
easiest way to put the matter behind you, making a
hasty decision could result in unintended
consequences and potential civil liability down the
road. Not only can accepted citations form the basis
for a future repeat OSHA citation, but accepted
citations could be used against the company by the
injured individual in a civil action for negligence.
Therefore, the employer should only accept
citations that are factually and legally accurate.

27. How do I prepare?
The Owner/User Has Critical Responsibilities
Immediately Following an Incident
• The Crane Owner/User is the most important entity immediately
following an incident.
• Preservation of the evidence is critical in order to accurately identify
and determine the cause(s) of an accident.
– Secure the scene-no one touches anything
– Contact your team IMMEDIATELY
– Document the scene and get all witnesses together
– Gather operators manual and have a copy ready
– Copy of any plans and procedures
– Copy of all equipment inspections
– Copy of maintenance records
– Take progressive photos-wide-closer-closest of the scene and
particularly what you perceive as important evidence
– Know how to deal with OSHA

28. Preservation of Critical Data
• Locating and preserving evidence is critical
at this point
• Your “team” must be at the site within 24
hours but no more than 48 hours after the
incident in order to do a thorough analysis.
• As time passes, evidence can change or
disappear if the site is not properly secured.
• Workers talk and suddenly they believe
something they didn’t see…..or couldn’t see

29. Why Do You Need a Team?
• Many claims are based on invalid or untrained
experts that profess to know cranes and qualified
to make unsubstantiated claims.
• During depositions, the attorney must be
knowledgeable to understand and react to
incorrect answers from other experts. (B30’s plus
manuals plus industry knowledge)
• Use of experts to prepare questions and plans are
critical to developing the case. But this requires
all members of the team being involved from the
beginning

30. Train the Team
• Ensure contracts and tickets are properly
written.Ensure tickets are signed before work
starts and when the work is finished.
• Ensure that all members have immediate
contact information (cell phones, etc.), as well
as any backup personnel.
• Employees have cell phones…..take photos
ASAP!
• Make sure your employees know who to contact
and what to do and say or not to say

31. How do I prepare?
• Here are some ways you can prepare:
• Know What To Expect. When an OSHA inspector
arrives, they should show you their credentials. ...
• Assign Responsibilities
• Perform Hazard Assessments & Safety Trainings
• Keep Good Records
• Know Your Rights
• Copy the Inspector (make notes, photos, etc.)
• Perform Periodic Internal Audits

32. NBIS
• In understanding the needs of the Association, and our
insured, NBIS provides many services in addition to an
insurance policy to assist in the preparation of OSHA and
Civil liabilities.
• Here are some examples:
– RMSS Risk kit
– Contract Management and Risk Transfer
– Driver Training
– Safety & Health Training
– Driver behavior monitoring (Preventive)
– Driver alerts with aftermarket devices (Preventive)
– Camera’s outside the windshield and down both sides of the
Equipment (Reactive)

33. NBIS

34. Just when you think you are protected and have done
your best to prevent an accident! You may have to
look back and think again

35. ARE YOU INSPECTION READY NOW!!!!
• Think about what we talked about ????
• Think about what you do now????
• Are you Inspection Ready???
THANK YOU