A Workplace Fatality: How Bad Can it Get Afterwards?

May 16, 2014
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So far this year, we have traveled through 11 states while going to work on projects around the country.  During every single road trip we have seen surveyors working someplace in or near roadways.  Working around traffic whether high speed or slower suburban streets is dangerous and anything can happen.   Imagine getting a phone call from one of your fellow employees or a police agency that there has been a terrible accident involving a worker.  I want to give all of you an idea of what it is like to go through the trauma of a serious incident or fatality so we are going to talk about responsibility, awareness and morality.   I am going to put the regulations on the back burner and discuss feelings and outcomes.

I have had the unpleasant opportunity to consult with companies after a worker was killed while working on several occasions the past few years.  In all but one situation the companies were not customers of ours until after the fatality occurred.  Most surveying and engineering companies are not large nationwide or worldwide conglomerates with tens of thousands of workers.  That means there is a good chance you know the person who was killed and in most small companies they are most likely a worker you see on almost a daily basis.  You probably know their spouse or significant other and their children.  You may go to ballgames together or attend anniversary celebrations, weddings and birthday parties.  Imagine the trauma of   having to be the person who tells their family that they will never be coming home again.  They will not attend their kids ballgames or school programs; never again.  They will not attend their children's graduation from high school or college.  They won't walk their daughter down the aisle or stand proudly while their son commits his life to his true love.  Yes, you will do everything you can to help the family get through the ordeal.  But just what can you do and how far can you go?  I remember an Oprah show several years ago that dealt with the aftermath of workers being killed.  Business owners said their lawyers advised them against any contact with the family.  The one constant thread from loved ones is that when the company didn't take an active part in the recovery and grieving process it appeared none of them cared.  Balancing the potential legal aspects with simple, plain decency and morality is only a decision you can make.  While you certainly have to think about the company for both your family and all of the others who work for you there also must be some consideration for the grieving family.

In some situations you may have just informed the family and you get a call that OSHA is already on the site wanting to conduct an investigation.  If the fatality occurred on a public highway there will most likely be a police investigation also and even in some cases on private property.  While I recognize these agencies have a duty to investigate, I also know that when people are grieving and have just been dealt a tremendous shock isn't the best time for them to think in a clear, precise manner.  I remember on the one fatality that involved two of our customers OSHA wanted to speak with all of the witnesses less than 48 hours after the accident occurred.  I refused to allow that to happen.  The OSHA Compliance officer called his Area Director and then told me if I failed to have them present for interviews that he would have the US Marshalls pick me up for obstructing justice.  This was far out of my home state of Indiana and I handed the Compliance Officer my business card and told him that is where the marshals could find me.  I received a phone call a couple of hours later asking when we could arrange to have the workers present.  I explained all of the workers were going home for a three or four days to grieve and I would have them back after that to be interviewed.  In addition to the OSHA interviews the insurance companies involved wanted to get all of the details.  All of these interviews and information gathering sessions kept bringing up the tragic accident for everyone over a two-to-three-week period.

Switching over to strictly the business side of a fatality can have as many or more major issues to deal with than the actual trauma of the death.  I have already mentioned OSHA, the law enforcement agencies, and your insurance carriers.  All of them want every single bit of information they can find.  I can guarantee you that the OSHA Compliance officer assigned to the case will look at all aspects of your companies safety efforts.  They will look over or ask for a copy of your Written Safety Program.  They will interview any employees on site and they may even interview employees who were  not on site to establish what safety efforts have been made by your company.  Based upon all of their information they will decide if any citations will be issued.  Don't look for this to be a fast process.  One of the fatalities I was involved with went up to less than an hour remaining for the time period OSHA had to do something and they showed up at the business to hand deliver the citations.  The time period in most situations is approximately six months or 180 days from the day they opened their investigation.  Just about every fatality I have been involved with has taken over five months and close to the six months. 

Again, all of those emotions over the fatality are brought back up for everyone to deal with again.  If citations were issued, you will most likely then schedule an Informal Hearing with OSHA and attempt to arrive at a position agreeable to both parties.  If you can't agree you can then contest the citations and go with the more formal process.  There are other legal recourses above the Contest, but very seldom do they go any further due to costs involved.  Yes, all of this takes money and it is not covered by Insurance. Speaking of insurance, you will have two types of insurance that may be involved in a fatality.  We all know that Workers Compensation will be involved for any medical bills or in most cases for a onetime payment of a fatality occurs.  I have had several cases in which liability insurance was cancelled within 30 days of an employee being fatally injured.  The insurance company will of course be on the line for anything as result of the actual accident, but you will then have to look for new insurance.  Imagine finding insurance when you were just cancelled for a fatality.  This will probably send you into a much higher bracket which will affect profit and even the ability to conduct business in some instances.

To wind up the aftermath is any potential lawsuits.  While it is difficult or impossible for an employee to sue if workers compensation is available, that doesn't mean a spouse or dependent can't sue.  In the out of state case where my customers were involved an attorney from half way across the country contacted the family in less than 48 hours after the fatality occurred!  I was later told there are services that will scan news reports from around the country and feed any workplace or other accidental deaths to an attorney.  They then contact the next of kin after getting that information as a public record from the coroner's office. Of course they point out it won't cost the next of kin anything to sign an agreement to sue.  They will only pay if monies are received from the employer or anyone else they decide to sue.  Again, the trauma of the death is brought back up.

Now you should have a better idea of the horror of a fatal workplace injury.  The trauma goes on for  months and maybe even years for both the family and the business.  Your best course of action is to prepare by putting the best safety program together that you can provide.  Train your workers and remember the slogan "Safety First" shouldn't just be lip service.  Safety must be considered in all aspects of your business from field crews to office workers.

 The day I was nearly done writing this article, two more workers were killed while working on a highway project in Indianapolis.  Two workers who were just trying to make a decent living were less than 30 minutes from completing their shift.  In fact, they were taking down the flashing arrow board that provided some of the protection when they were involved in an accident.  Two more workers who won't go home to their families.  I hope and pray that you are never involved in the aftermath of a fatal workplace injury.

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