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Unilaterally Obtaining Witness Statements in Advance of an OSHA Investigation Is Bad Protocol

Written By Iniesta Estable on Saturday, November 17, 2012 | 7:56 AM

I have seen a recent flurry of news articles discussing citations and hefty fines being issued to employer companies by the Occupational Safety and Health Administration. It is almost a certainty that a business owner dealing with an employee accident or contractor injury on its premises will encounter some level of investigative action by OSHA.

When an accident occurs that might result in OSHA's involvement, whether the business owner considers the accident serious or not, it is prudent to contact an attorney specializing in the defense of businesses in actions brought by employees and/or contractors. I recall being contacted years ago concerning a fatality accident that occurred at a medium size business. I was contacted within 30 minutes after the accident occurred, and this early notification allowed me to assist the client in securing the scene, notifying OSHA, preparing for media inquiries, identifying and interviewing witnesses, and addressing liability insurance and property damage issues. In the end, the client's prompt retention of legal representation enabled it to avoid any OSHA enforcement action and just as important, the deceased subcontractor's family never filed suit. By promptly retaining the assistance of an attorney, the business was able to gain control of the accident facts that in turn resulted in the lack of adverse consequences.

In stark contrast, I was told a story by a colleague where he recounted an on-the-job accident where his client did not contact him promptly. In fact, his client, who did not believe the accident was a "serious" one, did not contact him until one week following a fall at the company's warehouse. When he visited the site, the new Human Resource Director, believing he was doing everyone a favor, including OSHA, handed my colleague written statements from at least a dozen employees, some of whom did not even witness the accident. The accident resulted from an alleged premises defect on the floor, and the written statements were inconsistent regarding what was seen and heard that day. Moreover, the statements referenced facts that were wholly unrelated to the witnesses' personal knowledge of the facts of the accident.

In Texas, witness statements are discoverable, and when the contractor eventually sued the premises owner, he had ready-made access to at least a dozen "witnesses" with whom he could create inconsistencies, which in turn, directly impacted the businesses' ability to defend the claims against it. These witness statements, because they were already part of the company's investigation file, were required to be provided to OSHA as part of OSHA's investigation. Needless to say, OSHA issued several citations to that company that may not have otherwise been issued had these written statements not been procured. In adding insult to injury, the personal injury lawsuit brought by the contractor resulted in a larger than normal settlement for the injuries being claimed, in large part because of the inconsistencies in the witness statements.