OSHA Does Not Care About Your Work Injury or Wrongful Death Case
Somehow OSHA has become a household name to the victims of workplace fatalities yet there seems to exist an entirely inaccurate understanding of what OSHA’s role is following a workplace fatality. Simply put: OSHA doesn’t care about your lawsuit.
At first that probably sounds a bit harsh. After all OSHA are the go-to-guys for all things work injury… aren’t they? Why wouldn’t they care about a lawsuit related to a work injury? This is actually an easy question to answer without being cynical at all. OSHA doesn’t care because its not their job to care.
In fact Most Organizations Don’t Care Yet no one is Surprised
No one is surprised that the fire department doesn’t care about your ability to file a lawsuit in relation to a workplace injury. No one is surprised when the paramedics and the local police don’t care either. Yet the fire department paramedics and local police usually all arrive on scene after a fatal work accident and they will certainly investigate to some extent and draw their own conclusions regarding how the incident unfolded. Again though everyone understands that none of these organizations are conducting their investigations for any reason other than their own statistical or record keeping purposes. No one expects the fire department to call the victims and say I finished my report here’s who I think you should sue.
So why is it that OSHA is looked at differently? Why is it that accident victims think that OSHA quite literally is investigating their accident for the purpose of telling them who to sue or at a minimum showing them the way? Lets first talk about what OSHA actually does do.
What Then Does OSHA Do?
Here’s how it breaks down. OSHA is the enforcement arm of the US Department of Labor much the same way that the FBI is the enforcement arm of the US Department of Justice and also quite similar to the way that your local police department is the enforcement arm of your city.
As code enforcers for the federal government OSHA’s duties include inspecting working conditions and levying fines against companies who are non-compliant. But OSHA cant be everywhere all of the time. As such OSHA will only investigate a company when they receive a complaint from a whistle blower who reports a potentially dangerous condition or after something goes horribly wrong. Occasionally though OSHA will proactively conduct seemingly random checks but these inspections are usually precipitated by some past accident.
The confusion comes into play because OSHA is commonly known for their proclivity to investigate fatal or otherwise serious work accidents. The accident victims hear this and apparently they interpret this to mean that OSHA is conducting an investigation on the accident victims behalf which couldn’t be further from the truth. OSHA conducts their investigation for their own prerogative. Their goal is to determine how an accident occurred not to know whom to tell you to file a lawsuit against. Additionally OSHA will determine whether or not to issue a citation against the company. None of these duties have anything to do with helping an accident victim file a lawsuit; the fines levied against the company are all paid to the government not to a victims fund or anything of that nature.
Waiting for OSHA is a Horrible Idea
The biggest mistake than an accident victim can make is waiting for OSHA to conduct an investigation before proceeding with legal action. Just for the record I’m not encouraging anyone to seek legal action; that’s not he point of this blog. I’m merely saying that if you intend to seek legal action waiting around on OSHA is a poor strategy. The reasons for this are distinct yet interwoven; OSHA is not looking for the right kind of evidence and it takes them entirely too long to conduct their investigation meaning that if you wait for them to start the process the right evidence will be long gone by then.
OSHA is a division of the federal government which means unsurprisingly that they move at a snails pace. In the numerous work injury cases that my firm has litigated I would estimate that it takes OSHA an average of eight months to complete an investigation. During this time period the evidence that you actually need to win your lawsuit is not being collected cataloged and preserved in such a way that it is admissible into evidence for court.
Not Looking For the Right Kind of Evidence
In any workplace fatality or serious injury lawsuit the victim has the burden of proving that the defendant caused their injuries through some acts of negligence. This simply cannot be accomplished without supporting evidence. It never fails that accident victims believe that OSHA is out there gathering this evidence for them which is patently wrong. Each type of work injury case (such as a case involving heavy machinery a scaffolding collapse etc) will all have different allegations and different evidence will be needed. It is vital to have an attorney file a subpoena and/ or draft a spoliation of evidence letter in order to keep the defendant from tampering with this evidence. Your lawyer will need to record witness statements conduct a site inspection inspect the machinery or equipment in use review the qualifications and licensing of those who contributed to the accident review personnel files review the company’s safety policies and manual so on and so forth. Despite the fact that OSHA is good at investigating in such a way to find the information that OSHA cares about they are not looking for the type of evidence that you need to win a case. Again its not that they aren’t good at their job their job just isn’t to help you with your case.
Again I want to mention that OSHA moves slowly and that if you wait for OSHA to conduct their investigation to file a lawsuit its probably too late at that point and you will likely have an un-winnable case on your hands due to lack of evidence.
Additionally OSHA generally only looks as far as the direct employer of the injured or deceased worker. However many companies work together in most large projects. As such many personal injury and wrongful death claims involve suing third party companies who also contributed to an accident and OSHA doesn’t look too far into these other companies. This makes sense if you think it through. OSHA cant tell your company to enforce the safety policies of another company. No OSHA can only tell your company how to oversee its own safety protocol.
Imagine that you’re working for an oil drilling company. At any given point in time there may be employees for the parent oil company engineers or technicians provided by the various heavy machinery manufacturers who are there to assist with the machinery or subcontractors such as a casing company performing various tasks. If you are struck in the head by an abject that fell onto the deck of the oil rig this may warrant an OSHA investigation. However that investigation may determine that no one from your company dropped the object. As such OSHA would conclude something along the lines of telling your company to keep employees off of the rigs deck when other companies are working overhead but they wont dig too much further into the responsibility of other parties.
On the contrary an investigation conducted by a lawyer for the purpose of determining liability in relation to a lawsuit may determine that an employee from the casing company dropped the object. Once that is determined the lawyer should then focus his investigation on the casing company with an eye toward proving their negligence. But a good attorney doesn’t stop there. He will investigate anybody else that is loosely affiliated with the incident not for the purpose of arbitrarily finding other sources to point the finger at but for the purpose of learning about any other possible third parties that the defendants may try to drag into the lawsuit. This will allow the attorney to see the hurdles that may be potentially coming your way before they become problematic. OSHA however wouldn’t. They would investigate the employer they’d look for the wrong type of evidence necessary to win the case and they’d take quite a while to complete their investigation.
OSHA really is a success story of the American government. One need look no further than China India etc. to see how effective OSHA has been at making American jobs safer. But the bottom line is that OSHA does not get involved in personal injury or wrongful death lawsuits and relying on OSHA to tell you whether you have a case or as your source of evidence is a flawed strategy.