Somehow OSHA has become a household name to the victims of workplace injuries and fatalities, yet there seems to exist an entirely inaccurate understanding of what OSHA actually does following a workplace accident.
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. OSHA doesn't care because it's not their job to care.
Most Organizations Don't Care, Yet No One is Surprised
No one is surprised that the fire department doesn't care about a victim's ability to file a lawsuit in relation to a workplace injury. Same thing with the police or the paramedics. But, if you think about it, the fire department, paramedics, and local police all arrive on scene after a work accident, and they all investigate to some extent and draw their own conclusions regarding how the incident unfolded. Yet, everyone intuitively understands that none of these organizations are conducting their investigations for any reason other than their own record keeping purposes. That to say that no one expects the fire department to call the victims and say, "We finished our investigation. Here's who we think you should sue."
So why is it that accident victims think that OSHA is literally investigating their accident for the purpose of telling them who to sue, or, at a minimum showing them the way? I can't tell you how this belief became some widely accepted, but it simply isn't true. OSHA's job is to investigate work accidents for their own purposes, not to help accident victims with a lawsuit.
What 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 can't 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. Ostensibly, OSHA conducts random checks, but industry insiders all pretty much agree that these inspections are usually a follow up to some past incident. So, if some company has a history of work injuries, OSHA may surprise them with an unscheduled inspection. Aside from that, OSHA normally only shows up after an accident.
The confusion comes into play because OSHA is commonly known for their proclivity to investigate fatal or otherwise serious work accidents. Accident victims hear that OSHA is investigating, and, apparently, they interpret this to mean that OSHA is conducting an investigation on the victim's 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 victims 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 an OSHA Report 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. There are two reasons why waiting on OSHA is a bad strategy:
- OSHA is not looking for the right kind of evidence, and
- it takes them entirely too long to conduct their investigation, meaning that if someone waits to get an OSHA report to start the process, the right evidence needed to win the case may be long gone by the time the report is completed
OSHA is a division of the federal government which means, unsurprisingly, that they move at a snail's pace. Based on the numerous work injury cases that our 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 someone would actually need to win their lawsuit is not being collected, cataloged, and preserved in such a way that it is admissible into evidence for court, and that's bad.
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. Every type of work injury case (such as a case involving heavy machinery, a scaffolding collapse, etc.) will be built upon different allegations, and, as such, will need evidence that relates to those specific allegations. In other words, just having some evidence isn't enough; you need the right kind of evidence.
In order to lock down the right kind of evidence, an attorney must file a subpoena and/or draft a "spoliation of evidence" letter in order to keep the defendant from tampering with this evidence. The 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, conduct background checks on those involved in the accident, so on and so forth. Despite the fact that OSHA is good at investigating so as to find the information that OSHA cares about, they are not looking for the type of evidence that victims will need to win a case. Again, it's not that they aren't good at their job. It's just that their job just isn't to help victims with their case, so they don't bother to dig a deeply as accident victims need them to dig.
Additionally, OSHA generally only investigates the direct employer of an injured or deceased worker. However, it's very common for multiple companies to work together on the same project. This is especially true of pipeline projects, building construction, etc.). As such, many personal injury and wrongful death claims involve suing third-party companies (someone other than the victim's employer) 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 is there to tell companies how to make the workplace safer for their own employees, not other people. They have no authority to tell companies how to treat some other company's employees, so they're not interested in looking into those other parties. A lawyer, on the other hand would be highly interested in investigating anyone and everyone who had anything at all to do with the accident.
Here's an example of what we're talking about. Imagine that you're working for an oil drilling company. At any given point in time, the job site may be crawling with employees of the parent oil company, engineers or technicians provided by the various heavy machinery manufacturers who are there to assist with equipment, 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 won't dig much further into the responsibility of those other companies.
On the contrary an investigation conducted by a lawyer for the purpose of determining the viability of a lawsuit may determine that an employee from the casing company dropped the object. Once that is determined, the lawyer would 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 far too long to complete their investigation. If you're counting on OSHA to put a case together for you in this hypothetical situation, you'd be out of luck.
Conclusion
OSHA is truly a success story of the Federal government. One need look no further than China, India, or back a few decades in our own nation's past 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.