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Use OSHA investigations to your advantage: if your client was injured in a construction accident, OSHA investigations can help you build your case - but they can be a double-edged sword.

Article Excerpt
After a catastrophic construction site injury, the Occupational Safety and Health Administration (OSHA) usually sends an investigator to determine what happened and to issue citations to the culpable parties. Because OSHA regulations govern almost every imaginable aspect of workplace conduct, it would be a challenge to find any construction site that is in complete compliance. If an accident is serious enough to prompt an OSHA investigation, someone almost certainly will be found at fault and forced to pay a fine.

For the attorney representing an injured worker, the OSHA investigation can be a valuable resource that discusses what happened and why and also identifies the entities present at the work site, names the precise regulatory violation, and describes how that violation contributed to causing the injury.

But the OSHA investigation can be a double-edged sword. Workers' compensation precludes the employer from being named as a defendant, so what happens if the investigator concludes that your client's employer is principally responsible for the injury? In a typical negligence case, such a report would be the defendants' greatest weapon, and it might substantially reduce or eliminate damages on the basis of contributory or comparative negligence.

Use OSHA reports favorable to your client to your advantage. If unfavorable, you can use strategies to deflect them and limit their use by defendants.

Finding the facts

OSHA regulations grant compliance officers broad powers to enter a workplace, inspect all structures and apparatuses, and question employers and employees. The one limitation placed on investigations--which is hardly restrictive--is that they must be conducted "within reasonable limits and in a reasonable manner." (1)

On a practical level, injuries prompt investigations, and serious injuries or deaths prompt more extensive investigations. OSHA concedes it cannot inspect all 111 million workplaces covered by the Occupational Safety and Health Act (OSH act), so it has developed a system of inspection priorities. (2) Situations where there is an imminent danger of death or serious physical harm get top priority. These are followed by accidents that cause death or that injure three or more workers. If your client was killed or seriously injured at work, OSHA probably investigated.

How do you determine whether OSHA has conducted an investigation? How do you get copies of the documents generated during the investigation? The Freedom of Information Act (FOIA) allows the general public to obtain copies of government records, and OSHA has promulgated regulations implementing FOIA. (3)

To obtain these records, you must send a request to the FOIA coordinator at the OSHA regional office for the state where the incident occurred. The agency's Web site provides all the pertinent addresses. (4) Exemptions provided in FOIA, including those for investigatory documents compiled for law enforcement purposes, (5) will prevent you from receiving anything until your client's workplace injury has been fully investigated and citations have been issued. You may need to make a follow-up request after the citation has been...

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