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A Word from the CEO
Vantage Points-Winter Edition
How To Respond To
A Work Place Accident
Corporate Records:
The Importance of
Annual Meeting Minutes
A New Year's Wish
for the Legislature:
Tighten Unemployment
Eligibility for Strikers
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Thomas E. Scarr
tes@jenkinsfenstermaker.com
How To Respond To A Work Place Accident
Every employer must recognize two unavoidable truths. First, no matter what steps are taken to prevent work related accidents and injuries, some will occur. Second, anyone can file a lawsuit against anyone regardless of fault. While these are unavoidable truths, they certainly should not cause employers to ignore employee health or safety nor acquiesce to litigation or threats of litigation. The best response is to take reasonable steps to prevent work related accidents and to prepare for and react quickly and properly to accidents and injuries when they occur to prevent similar occurrences in the future and to prepare for the potential litigation that may result from it.
Below are several suggestions concerning what to do when an accident does occur. These suggestions come from several seminars that Jenkins Fenstermaker offers to clients concerning: Document and Record Control and Management, Privileges and Evidentiary Protections, and What To Do In The Case of a Work Place Accident and How to Maximize Available Evidentiary Protections.
How To Respond To A Work Place Accident
- Before an accident occurs, ensure that your employees, particularly your supervisory employees responsible for investigating and responding to accidents when they occur, are adequately trained in how to respond to the accident, including first responder procedures, securing the accident scene, notifying appropriate company personnel, conducting an accident investigation, and preparing accident investigation documents. It is also important to assign specific responsibilities for document preparation, document organizing and filing, maintenance and storage, etc.
- Secure the accident scene, including any equipment or property involved. DO NOT make any alterations or repairs to any of the equipment or property involved;
- Call and notify your attorney about the accident;
- Call your insurance company and report the accident;
- Determine whether OSHA/MSHA or any other Federal or State agency must be notified of the event, and if so, when, and act accordingly;
- Determine who will act as spokesman for your company to deal with inquiries from the press or public;
- Identify any potential witnesses;
- Identify and secure all relevant documents which may include various Personnel Records (employment applications, interview notes, performance evaluations, disciplinary records); the Employee’s Workers Compensation Records, Employee Medical Records, Pre-Employment Physicals, Employee Testing/Medical Surveillance Records, Attendance and Payroll Records, Job Descriptions, Safe Job Practices (SJP), Job Hazard Analysis (JHA), Training Records (written handouts, videos, sign-in sheets and tests), Company Safety Records, Incident Reports and Prior Accident Records related to the employee involved, area involved and/or equipment involved;
- Allow your legal counsel to assist you in your post accident investigation, analysis and report;
- Be cognizant of and take appropriate steps to maintain the protections provided by legal privileges and evidentiary protections such as attorney/client privilege, work product doctrine, subsequent repairs or measures, and self audit or self-critical analysis. If you have any questions or doubts regarding the extent of a privilege in a given situation, call your attorney;
- Mark or label, as appropriate, all documents that you do not want disclosed during pre-trial discovery or trial. Keep the following labels in mind: Confidential, Attorney/Client Privilege, Work Product Privilege, Remedial Measures, Self-Critical Analysis, and Do Not Copy or Reproduce Without Permission;
- It is good policy and business practice to perform a post-accident investigation, but it is equally important that preliminary reports be limited to descriptions of the known facts only. In conducting an accident investigation, ensure that you are documenting facts, not opinions. Take adequate photographs and video of the accident scene and any evidence remaining, make appropriate drawings, take measurements, and witness statements. Conducting a root cause and analysis and developing a conclusion as to the cause or causes of the accident should not take place immediately after the accident, otherwise they will necessarily be premature and probably contain speculation;
- Instruct employees, particularly supervisory personnel who might be responsible for conducting such investigations and preparing such reports, to omit conjecture, opinions or conclusions of cause or fault, or any other speculation in the initial post-incident report. After consulting your legal counsel, you may, at counsel’s direction, prepare follow up investigation reports in which frank self-evaluation and criticism can be offered, as well as any other opinions as to the cause or responsibility for the accident. It is often advisable to direct these reports to your legal counsel and include a statement that the report is prepared in anticipation of possible litigation;
- As a general rule, good documents are clear and concise and only include known, objective facts, not premature and speculative conclusions and opinions. Avoid creation of “bad documents,” i.e. documents which mischaracterize facts, conversations or incidents; documents that include inconsistencies, vague, inaccurate or exaggerated statements; inflammatory, emotional or melodramatic comments or phrases, speculation and premature opinions; documents which include absolutes, e.g., always, absolutely; or legal conclusions re: causation; or words suggestive of fault or secretive behavior, e.g. “in hindsight, should have realized/known,” “accident caused by,” “please destroy after reading”;
- Be careful to limit circulation of such documents. Limit the number of copies made and only circulate them to those that absolutely must receive them;
- Be extremely careful about faxing documents, sending e-mail messages and making cellular or telephone calls concerning the accident to avoid inadvertent disclosure of certain documents and information. When sending an electronic message, by fax or otherwise, use a cover sheet with appropriate language identifying the privileged and confidential nature of the documents and with direction in case the documents are inadvertently sent or received;
- Make sure that all employees, whether part of management or not, are instructed to keep any consultations that they might have had with the company’s legal counsel completely confidential.
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