Developing Protocol for Accident Documentation
06/23/08
Construction employers have four primary different reporting obligations related to accident documentation: 1) OSHA, 2) Worker’s Compensation, 3) their general liability carrier and 4) other specific reporting obligations associated with the specific work involved – such as Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), Clean Air Act (42 USC § 7401, et seq.), Clean Water Act and Pollution Discharge Elimination System (33 USC § 1251), Federal Safe Drinking Water Act (42 USC §§ 300f-300j), Emergency Planning and Community Right-To-Know Act (42 USC § 11001), Toxic Substance Control Act (15 USC § 2601, et seq.), Hazardous Materials Transportation Act (49 USC § 5101, et seq.), National Environmental Policy Act of 1969 (42 USC §§ 4321-4347), etc. These reporting obligations are in addition to any private contractual reporting obligations or documentation or any reporting obligations to any criminal law enforcement authorities.
Under each of these acts, different reporting requirements exists to different and sometimes multiple governmental agencies or authorities. In addition, reporting requirements to your own bonding company, Board of Directors, shareholders, general liability and workers compensation insurers, workers compensation authorities or others may exist. Most times, awaiting the occurrence of a reportable incident is too late to determine to whom reporting obligations exist and the format for such reporting. Substantial fines and penalties may be imposed simply for failing to timely report an incident to the correct authority.
OSHA and local workers compensation authorities have very specific reporting obligations and forms which are available on-line. Other agencies also have their specific forms, which may or may not be available and/or reportable online.
Regardless of the potential differences and requirements, generally a protocol aimed at documenting the discovery of how an accident occurred and how similar future incidents may be prevented is the best protocol for construction site accidents. Further, to the extent such protocol utilizes and enables “peer review” directed at future prevention the more comprehensive and ultimately, the more legal protections will be provided to such investigation. Indeed, if the investigation is carried out for the purposes of protected work product, and ideally under the direction of any attorney, the investigation itself in many respects MAY be protected from discovery by others.
Although an employer may believe such investigation is the responsibility of others (because they are covered by workers compensation coverage, etc.), an employer should never take such an attitude. First, such an attitude will run astray of any OSHA accident prevention program and OSHA requirements that the employer participate in good faith in the investigation. Second, such an attitude ignores the reality of the potential for third party claims, product liability claims and ignores the invaluable real time input of one of the parties with a most comprehensive perspective as to what may have caused or contributed to an accident. Third, because of the lien imposed by the states’ workers compensation law, the ability to recover costs from third parties may be of benefit to the contractor in either direct exposure minimization, employee moral, or in reduction of the employers’ actual loss ratio.
All protocols will provide that a “neutral” be in charge of the investigation. The “neutral” shall have as their stated goal investigating the cause(s) of the accident and investigating preventions from similar accidents. To that end, the protocol should have inherent in its operation a preservation of all evidence, including physical, statements of all witnesses, and photographs. The protocol should include documentation of all measurable events, which although not apparent on their face as relevant, may become relevant if traced and tracked to reveal patterns. Thus, documentation of equipment used, means of use of the equipment, time of day, weather conditions, witnesses, the nature of the injury, etc., are all relevant. It should be noted, OSHA only mandates recording and reporting of injuries if “treatment” is required. However, prudent protocol policy may dictate a more aggressive monitoring and recording process.
See Are You Prepared For Accidents?; Differences Between Employee and Third-Party Accidents; Preserving The Accident Site and Other Evidence; Selecting a Company Spokesperson and What Information to Divulge; Improving Workplace Safety Procedures During Litigation: Will It Hurt Your Case?
For more general information, visit Construction Law.
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