OSHA has become a household name for victims of workplace fatalities, but there appears to be a completely incorrect understanding of OSHA’s role following a workplace fatality. Simply put, OSHA is unconcerned about your lawsuit.
That probably sounds harsh at first. After all, OSHA is the go-to guy for everything work-related, aren’t they? Why would they be unconcerned about a workplace injury lawsuit? This is a simple question to answer without sounding cynical. OSHA is unconcerned because it is not their job to be concerned.
Most Organizations Don’t Care, Yet no one is Surprised
Nobody is surprised that the fire department is unconcerned about your ability to sue for a workplace injury. Nobody is surprised that the paramedics and the local police are unconcerned. However, after a fatal workplace accident, the fire department, paramedics, and local police will all arrive on the scene and will almost certainly investigate to some extent and draw their own conclusions about how the incident occurred. Everyone understands, once again, that none of these organizations are conducting their investigations for any reason other than statistical or record keeping purposes. Nobody anticipates the fire department calling the victims and saying, “I finished my report, and here’s who I think you should sue.”
So, why is OSHA being treated differently? Why do accident victims believe that OSHA is literally investigating their accident in order to tell them who to sue or, at the very least, point them in the right direction? Let us first discuss what OSHA actually does.
What Then Does OSHA Do?
This is how it works. OSHA is the enforcement arm of the US Department of Labor, much like the FBI is the enforcement arm of the US Department of Justice, and your local police department is the enforcement arm of your city.
OSHA’s duties as federal government code enforcers include inspecting working conditions and levying fines on noncompliant companies. But OSHA cannot be everywhere at all times. As a result, OSHA will only investigate a company if a whistleblower reports a potentially hazardous condition or if something goes horribly wrong. OSHA will occasionally conduct seemingly random inspections, but these are usually the result of a previous accident.
The ambiguity arises because OSHA is well-known for its proclivity to investigate fatal or otherwise serious workplace accidents. When accident victims hear this, they apparently interpret it to mean that OSHA is conducting an investigation on their behalf, which is completely false. OSHA conducts their investigation solely for their own benefit. Their goal is to figure out how an accident happened, not to tell you who you should sue. In addition, OSHA will decide whether or not to issue a citation to the company. None of these responsibilities have anything to do with assisting an accident victim in filing a lawsuit; all fines imposed on the company are paid to the government, not to a victims fund or anything of the sort.
Waiting for OSHA is a Horrible Idea
The most common mistake that accident victims make is waiting for OSHA to conduct an investigation before taking legal action. For the record, I am not encouraging anyone to file a lawsuit; that is not the purpose of this blog. I’m simply stating that if you intend to take legal action, relying on OSHA is a bad idea. The reasons for this are distinct but intertwined; OSHA is not looking for the right kind of evidence, and it takes them far too long to conduct their investigation, which means that if you wait for them to begin the process, the right evidence will be long gone.
OSHA is a division of the federal government, which means they move at a glacial pace. In my firm’s numerous work injury cases, I would estimate that OSHA takes an average of eight months to complete an investigation. During this time, the evidence required to win your lawsuit is not being collected, cataloged, and preserved in such a way that it is admissible in court.
Not Looking For the Right Kind of Evidence
In any workplace fatality or serious injury lawsuit, the victim bears the burden of proving that the defendant’s negligence caused their injuries. This is simply not possible without supporting evidence. Accident victims consistently believe that OSHA is gathering evidence for them, which is demonstrably false. Each type of work injury case (for example, one involving heavy machinery or a scaffolding collapse) will have different allegations and require different evidence. To prevent the defendant from tampering with the evidence, it is critical that an attorney file a subpoena and/or draft a spoliation of evidence letter. Witness statements will need to be recorded by your lawyer. inspect the machinery or equipment in use conduct a site inspection review the qualifications and licensing of those who contributed to the accident review personnel files Examine the company’s safety policies and manual, and so on. Despite the fact that OSHA is good at conducting investigations in order to find the information that OSHA is interested in, they are not looking for the type of evidence that is required to win a case. Again, it’s not that they aren’t competent; their job simply isn’t to assist you with your case.
Again, OSHA moves slowly, and if you wait for OSHA to conduct their investigation before filing a lawsuit, it will most likely be too late, and you will have an unwinnable case on your hands due to a lack of evidence.
Furthermore, OSHA generally only looks as far as the injured or deceased worker’s direct employer. In most large projects, however, many companies collaborate. As a result, many personal injury and wrongful death claims involve suing third-party companies that also contributed to an accident, and OSHA does not investigate these other companies too thoroughly. When you think about it, this makes sense. OSHA cannot order your company to enforce another company’s safety policies. OSHA can only advise your company on how to manage its own safety protocol.
Assume you are employed by an oil drilling company. At any given time, there may be employees for the parent oil company, engineers or technicians provided by various heavy machinery manufacturers to assist with the machinery, or subcontractors performing various tasks, such as a casing company. If you are hit in the head by an abject that has fallen onto the deck of an oil rig, an OSHA investigation may be warranted. However, it is possible that the investigation will reveal that no one from your company dropped the object. As a result, OSHA would come to the conclusion that your company should keep employees off the rig’s deck when other companies are working overhead, but they would not delve too deeply into the responsibility of other parties.
An investigation conducted by a lawyer for the purpose of determining liability in a lawsuit, on the other hand, may determine that an employee of the casing company dropped the object. Once that is determined, the lawyer should concentrate his investigation on the casing company in order to establish their negligence. However, a good lawyer does not stop there. He will investigate anyone else who is loosely associated with the incident, not to find other sources to point the finger at, but to learn about any other potential third parties that the defendants may try to drag into the lawsuit. This will enable the attorney to anticipate potential roadblocks before they become problematic. However, OSHA would not. They’d investigate the employer, look for the wrong type of evidence needed to win the case, and take a long time to complete their investigation.
OSHA is a shining example of American government success. One only needs to look to China, India, and other countries to see how effective OSHA has been in 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 if you have a case or as a source of evidence is a bad strategy.