The following articles were reprinted courtesy of Construction News
Responding to Worksite Accidents
Marc Young, Founding Principal
Cokinos, Bosien & Young
The construction industry routinely leads all other industries in the total number of deaths per year, therefore it is imperative to understand the role of your company and your legal representative in the event of a fatality or major incident on the construction worksite. Having a plan of action can assist your company and your legal team in preparing for, and handling, a major incident, should it become necessary.
BEFORE AN ACCIDENT OCCURS
• Create an Emergency Response Plan (ERP)
• Have your risk manager and safety committee review the ERP with your attorney so there is no confusion during a response.
• Your attorney should have in his/her vehicle a “go-bag” containing tools necessary to document and investigate an incident at a moments’ notice.
IMMEDIATE STEPS IN THE EVENT OF A MAJOR ACCIDENT
• The immediate response should always begin with a 911 call at the first indication of a major injury or fatality.
• Remove all non-essential workers from the area. Secure an area around any continuing danger or hazard to workers.
• Notify key corporate personnel as soon as the area is secured and individuals are no longer in danger.
• The attorney should be called to the scene to assist with the investigation and OSHA visit.
• Notify insurance carrier.
• Once your attorney arrives at the site, meet in the company’s work trailer as soon as possible. Confirm that Emergency Response Plan has been followed thus far.
Your attorney should begin conducting the investigation before the site conditions change, witnesses leave and equipment is moved. Designate a private place to talk - typically the job trailer is the best place to perform interviews. Your attorney may need someone with technical expertise from your company to participate in the interviews.
Some attorneys don’t pursue recorded statements at this stage because any party in the subsequent litigation will be entitled to that recording. Your attorney may take photographs to document the scene and everything relevant to the incident, but avoid any conditions such as blood or medical waste. If equipment involved in an accident was moved prior to emergency responders arriving, it is imperative to establish exactly where it was at the time of the accident.
OSHA must be contacted within 8 hours of a fatality, or within 24 hours of a work related in-patient hospitalization, amputation or loss of an eye. OSHA has a 24-hour fatality contact number at 800- 323-OSHA. However, it’s not uncommon for OSHA to hear about the incident through media accounts and drive directly to the site.
Before OSHA investigators arrive, your attorney may advise you of any observable conditions that may result in violations of various OSHA standards so they may be immediately corrected. An OSHA investigator is not limited to the site of the injury when investigating an accident, and may identify numerous citable conditions unrelated to the accident. Consult with your attorney about drafting and implementing a written policy regarding whether to allow warrantless OSHA investigations before it is ever needed.
• Understand what deadlines the media are under and advise them that you will get back to them after you have had an opportunity to conduct a reasonable investigation.
• Answer questions as directly and as completely as possible. If you don’t know the answer to a question, be honest. False information can damage credibility and the public’s perception of your ability to tell the truth and convey accurate information.
• Avoid using “no comment” as an answer.
• Never give “off-the-record” information.
• Give the facts as you know them and cite sources.
•If the emergency or disaster is long term in nature, it is important to hold frequent briefings or press conferences.
• Advise all employees not to speak to the press or give statements. Provide employees with a designated individual or telephone number to refer inquiries.
While no plan can foresee every detail of a catastrophic event, being prepared with the basic elements and securing legal representation before an event can mitigate further injuries to workers and protect the legal position of the company in subsequent litigation.
Marc A. Young is a founding principal of Cokinos, Bosien &Young, a full service law firm with offices in Houston, San Antonio, Dallas and Austin. For more information on our services, please visit www.cbylaw.com