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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

1

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]

Know the Terrain on Which the Battle is Fought

2

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

3

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

4

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]

5

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)

6

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

7

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.

8

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?

9

Multi-Employer Worksite Rules

Labor Code §6400, Title 8 CCR §336.10 - 11

[Exhibit 8]

DOSH Policy and Procedures Manual - Multi-

Employer Worksite Inspections

10

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

11

McMENAMIN’S

RULES

12

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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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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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

LOOSE LIPS SINK SHIPS

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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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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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NO INTERVIEWS OF MANAGEMENT - PERIOD -

END OF STORY

Attempts to interview management are

suspect. If subpoenaed - take the 5th

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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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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.

20

AFTER THE DUST SETTLES, THE

ACCIDENT INVESTIGATION IS NOT

ABOUT SAFETY ANYMORE -

IT IS ABOUT LOSS MITIGATION

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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.

22

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.

23

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.

24

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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ATTORNEY-CLIENT PRIVILEGE IS NARROW.

Sending a “cc” to your attorney on

documents will not make that document

protected.

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IF CITED BY THE DIVISION

ALWAYS APPEAL.

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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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NOTES

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For questions or comments, please contact:

Thank You Eugene F. McMenamin

(562) 653-3200 emcmenamin@aalrr.com