Workplace injury results held up due to OSHA Investigation

Workplace injury results held up due to OSHA Investigation

Workplace injury results held up due to OSHA InvestigationJacksonville personal injury attorneys suggest consultation after any personal injury, even if it takes place on the job. Jason Cooper was tragically injured over two years ago on an on-the-job accident.  He worked for Bosselman Boss Truck Shops in Rawlins, Wyoming. The day he was injured, a tire blew up, causing severe brain damage.  The company was charged with three serious OSHA violations and $17,010 in penalties. The fees were reduced to $14,457, according to OSHA’s online records. The last action on the case was an informal settlement.   That’s all the family knew.  According to a spokeswoman for Wyoming OSHA, the case is in the final stages of penalty negotiations.

It’s been two years since the accident, and Danielle Cooper still doesn’t know the details about what actually happened when her husband was hurt. She knows that when Jason woke up from the coma, he had to be shown pictures of their two daughters every day as a reminder that he was a father.  She knows that he might spend years in a facility because of extensive brain damage.  She doesn’t know why the company her husband worked for was fined or what the extensive state investigation into his accident revealed. She doesn’t know if the company was at fault or if he was.  The case is still open, and as long as an investigation is open, its contents are sealed.  What the Coopers are waiting on is a report from the Occupational Safety and Health Administration (OSHA), a division of the Wyoming Department of Workforce Services.
In health and safety cases, it is OSHA that arrives on the scene. Its investigators interview witnesses, inspect the location and compile a report. In cases where a company failed to follow the laws to keep workers safe, OSHA issues a violation and eventually is responsible for collecting penalties.  The organization also releases a public report on the incident once the case is closed.  What the Coopers don’t understand is why an investigation is allowed to go on for years. Jacksonville personal injury attorneys will continue to fight even if the case takes longer than a few months.

Prolonged Cases

Officials are aware that cases have gone on too long.  OSHA is not required to close a case within a certain time frame. However, the division is developing deadlines to keep cases on track. It is also working with federal OSHA to streamline processes, and the agency has contracted with a collections agency to ensure companies pay penalties in a timely manner.  Thought the issue is of concern, there are sometimes legitimate reason for a prolonged case.  Companies have the right to defend themselves when issued a violation or penalty.  The company can protest fees in an informal meeting with OSHA. It can supply additional information for the case or request more time to provide additional facts.  If the company and OSHA remain at odds over a penalty after that meeting, the company can take its case to the OSHA commission and then to the courts.  Another case that fell through the cracks pertained to a fire at the Williams Opal natural gas plant. A fire at that gas plant in Lincoln County garnered fines close to $50,000 in April 2014. That open case was discovered only after a worker died at the plant last month. Investigators had failed to send the final penalty bill to the company. The case on the Opal fire was opened within days of Jason Cooper’s.

Seeking Answers

OSHA contacted the Coopers soon after Jason was hurt.  It is common practice to notify families and keep them up-to-date of the investigation if they want the information. However, that wasn’t Danielle’s experience.  “They told me it was going to be an ongoing investigation and could take up to six months,” she said. “Six months went by, a year, a year and a half, and still nothing. Eventually it just seemed like they were not listening to me.”  She contacted a personal injury lawyer to look into the case. Jacksonville personal injury attorneys are willing to provide free case evaluation if such a situation arises. Jack Edwards didn’t get much further than the family. He wrote three letters to OSHA, the first in October of 2015, the most recent in August. He received similar replies to each: The case was still open and couldn’t be discussed.  The question isn’t just why there isn’t a time limit on these investigations, he said. It’s why families have no recourse when denied information.  For the Coopers, the results of the investigation may not change anything.  Jason is covered by worker’s compensation and Social Security payments. The family’s income is slightly less than it was when Jason was working. But the mystery bothers her.  “I just want to know what happened,” she said. “If it was the company’s fault, we can take it from there. If it was Jason’s fault, then there is closure.”

Wyoming is unique in that it has an OSHA State Plan. State Plans are OSHA-approved job safety and health programs operated by individual states instead of federal OSHA. Section 18 of the OSH Act encourages states to develop and operate their own job safety and health programs and precludes state enforcement of OSHA standards unless the state has an OSHA-approved State Plan.  OSHA approves and monitors all State Plans and provides as much as fifty percent of the funding for each program. State-run safety and health programs must be at least as effective (ALAE) as the federal OSHA program. OSHA provides coverage to certain workers specifically excluded from a State Plan, for example, those in some states who work in maritime industries or on military bases. To find the contact information of the OSHA or State Plan office nearest to you, call 1-800-321-OSHA or go to  22 of the 50 states have OSHA-approved State Plans that cover both private and public sector workers.  Florida does not have an OSHA-approved State Plan.

Jacksonville Personal Injury Attorneys Helpful Facts
If there an OSHA inspection due to an injury or for a standard inspection, here are some tips for an employer to know:

  • Maintaining up-to-date records — especially OSHA 300 logs that track workplace injuries — will also help keep the path smooth for employers because everything will be in order when OSHA asks to see these documents.
  • Find out Why OSHA Is There — When an OSHA inspector arrives, attorneys say the first thing an employer should do is ask to see the inspector’s credentials, but the next thing is to find out what brought the inspector to the business.  The agency has broad investigatory authority, but it must have probable cause to believe that a violative condition exists to enter a facility.  There are numerous things that can provide OSHA with probable cause, including an employee complaint, a report from a first responder at the site of an accident or fatality, a media report of an incident at the facility, or a national or local inspection program targeting specific industries or hazards that uses neutral criteria to determine where inspections should take place.  The employer should ask what has prompted OSHA’s investigation at the start of the interaction, to flush-out what the agency is looking for, lawyers say.
  • Assert Your Rights When Necessary — During an OSHA inspection, the rights of the agency, the employer and the employees all need to be balanced, and lawyers say it’s important for employers to understand theirs so they can stick up for themselves when they need to.  The first right that employers should know they have is that, even though it’s generally beneficial to cooperate with OSHA, they do not necessarily have to let an inspector in right away.  During the inspection, employers also have the right to have a representative present, including during interviews with management-level employees and to object to inspections that are not reasonable, including those that would be overly disruptive to business operations.   Employers can also ask an inspector to wait a reasonable amount of time for the employer’s representative to arrive before beginning the inspection, lawyers say.
  • Know Who Else May Be There — While longstanding policy permits workers in unionized workplaces to have a union representative present during an inspection, an OSHA interpretation letter made public in February 2013 stated that the agency’s regulations allow workers at businesses without collective bargaining agreements to select outside representatives, including union agents, to represent them during OSHA inspections.
  • Shadow the Compliance Officer — Once the inspection does begin, the compliance officer will go on a walk-around to perform the inspection, and attorneys say it’s important for the employer’s representative to remain by the officer’s side for that entire time.  Beyond just being present, the employer’s representative should be taking side-by-side photographs whenever the compliance officer takes a photograph and should be collecting his or her own version of any physical evidence OSHA takes during the inspection.  Keeping your own version of the evidence that the OSHA inspector collects will allow you to have an understanding of what the government may end up basing citations on and lets you evaluate the situation yourself, attorneys told Law360.
  • Prep Your Workers for Interviews — The compliance officer will want to talk to your employees, but whether the interviews are with management or non-management employees makes a big difference.  As a general rule, OSHA will speak with non-management employees without an employer representative present, but when it comes to management-level staffers, the company can and should insist on having a representative, which can include outside counsel, present for the interview because anything a management employee says can be deemed an admission by the company, lawyers say.  In both cases, it is best to try to get your employees ready.
  • Protect Your Confidential Information — OSHA will often ask for documents, and lawyers say it’s helpful to ask that all such requests be made in writing both so that the employer can be sure to not miss any requests and to have a record if OSHA claims there are discrepancies between what was requested and what was produced.  And in turning over documents, it is important for employers to take steps to protect their trade secrets and other confidential information from public disclosure, attorneys say.  Employers can try to protect their sensitive documents from such disclosure by labeling them as confidential before producing them for OSHA.  When information is labeled confidential, OSHA will either refuse to produce the information in response to a FOIA request, or will at least notify the employer that such a request has been made, and possibly even let the employer know who made the request and let the employer justify its claim that the information should be kept under wraps.
  • Remember It Isn’t the Final Word — At the closing conference that ends an investigation, OSHA may decide to issue citations for alleged violations, but lawyers say employers should keep in mind that this does not necessarily have to be the end of the road.  It is therefore important for employers to keep their own record of what occurred during the inspection, to make an informed decision about whether to push back.