OSHA practitioners who have handled citations involving fatalities or severe injuries are most likely no strangers to considering how these citations including the alleged violation description might affect collateral litigation such as wrongful death actions or tort claims. Indeed, collateral litigation almost always presents significantly more liability for businesses than the OSHA penalty. Although state workers’ compensation laws may differ, it is usually difficult for an employee to evade the exclusive remedy of workers’ compensation in a more traditional injury on the job. Of course, there may be other facts such as a fatality on a multi-employer worksite that might complicate workers’ compensation coverage. In such cases, the business may decide it is more advantageous to take the position that the injured employee of another entity is also its statutory employee to trigger workers’ compensation coverage. These considerations will often drive OSHA settlements including timing and settlement agreement language. For example, businesses should insist on language that states the settlement cannot be used for any other purpose except OSHA enforcement. Of course, notwithstanding such language, a court may still permit the settlement as evidence in collateral litigation.(more…)
Some may remember in 2008, OSHA issued a general duty citation against a national retail store when one of its employees was knocked to the ground and crushed by a crowd of about 2,000 shoppers surging into the store for a holiday sales event. Of course, OSHA does not need a fatality to issue a general duty citation. (more…)
Most employers are required to keep OSHA injury and illness records for each of its covered establishments. To meet these obligations, it is prudent for employers to have well-written policies that require employees to report all workplace injuries and illnesses and to foster a culture that encourages reporting. Indeed, OSHA’s electronic recordkeeping rule specifically prohibits employers from discouraging workers from reporting an injury or illness and requires employers to inform employees of their right to report work-related injuries and illnesses free from retaliation. For example, OSHA would generally consider a policy that requires employees to immediately, without exception, report an injury or illness as retaliatory. (more…)
The Bureau of Labor Statistics recently published workplace fatality statistics for 2016 showing a 7-percent increase from 2015. Within this increase, workplace violence and other injuries by persons or animals increased 23 percent to become the second-most common fatal event in 2016. This increase represents an additional 163 cases to 866 in 2016. Workplace homicides increased by 83 cases to 500 in 2016, and workplace suicides increased by 62 to 291. This is the highest homicide figure since 2010. These statistics are a grim reminder that employers need to be proactive about workplace violence issues. In an earlier blog, we discussed OSHA guidance on workplace violence which can be accessed at: http://oshachronicle.com/2017/06/06/osha-and-workplace-violence
There are some OSHA lessons to be learned and things to think about from the recent Third Department case in Silvestri v. New York City Transit Authority, 2017 N.Y Slip Op 06123 (August 10, 2017). In Silvestri, the Third Department affirmed a decision by the Workers’ Compensation Board that the widow of a deceased employee working at the Transit Authority was entitled to benefits because there was substantial evidence that the decedent’s injuries and ensuing death were attributable to an accident that arose out of and in the course of his employment.
The problem was that there were no witnesses to the accident and the employee did not report it. Instead, he went home and told his wife that he had fallen off a ladder and into the “pit” at work. The decedent went to the hospital and was diagnosed with fractured ribs, was given painkillers and sent home. Three days later he went back to the hospital and was diagnosed with a ruptured spleen and a punctured lung and was admitted but died the next day following complications from “blunt impact injuries.”
The court found that testimony of a supervisor that he had witnessed the decedent holding his stomach and indicating that he was not feeling well the day after the accident combined with the declarations of the deceased employee to his wife concerning the accident presented sufficient evidence that the accident occurred in the course of employment. (more…)