Written by Timothy Bryant 21 September 2010
It is any workplace’s worst nightmare: an injury to a worker while on the job. Yet for all the horror it brings, it is also a disturbingly common event. Employers are required by law to take all steps necessary to prevent their workers from being injured on the job. But what happens if a worker does get hurt?
Because workplace injury is a reality that many employers may face, will face or have faced at some point, it’s wise to have a plan for when an accident does happen, according to OHS legal experts.
The first thing every employer needs to have is an accident plan, says Jeremy Warning, a senior associate with Toronto-based law firm Heenan Blaikie.
The purpose of coming up with an accident plan ahead of time – even before a workplace injury takes place – is to ensure that when an accident occurs, “everyone knows what steps are to be carried out and who is going to be notified and responsible for ensuring those steps,” he says.
Warning says the exact steps to follow in the event of an accident depend on the accident itself.
“There’s going to be no script to follow on conducting an internal investigation, and that the steps that are required will vary from circumstance to circumstance,” he says.
Although the exact steps will vary, Warning does say the general procedure is fairly consistent across many situations.
The first step is to provide medical aid to any injured parties. This also includes speaking to them, when possible, about what happened, says Ryan Conlin, a partner with Stringer Brisbin Humphrey.
The second step is to determine if the site needs to be held (locked down), or if the regulator (e.g. the Ministry of Labour) needs to be notified. There are several legal requirements for when a site needs to be held, Warning says, such as when there has been a fatality.
Another requirement for the site being held is if a worker suffers a critical injury. The Occupational Health and Safety Act in Ontario, defines a critical injury as “an injury of a serious nature that, (a) places life in jeopardy; (b) produces unconsciousness; (c) results in substantial loss of blood; (d) involves the fracture of a leg or arm but not a finger or toe; (e) involves the amputation of a leg, arm, hand or foot but not a finger or toe; (f) consists of burns to a major portion of the body; or (g) causes the loss of sight in an eye.”
The final step is to appoint an accident response coordinator. This person will generally take over the company’s internal accident investigation, and is designated through the company’s accident response plan.
At this point, the company is best served by performing its own internal accident investigation. Conlin says the investigation serves primarily as a fact-finding exercise.
“An internal accident investigation is one where an employer is gathering information for the purposes of any potential litigation arising out of the accident,” he says. “At the end of the day, it is a way for the organization to gather all of the information for the purposes of getting legal advice if that becomes necessary.”
Before beginning an investigation, the company must decide if it needs to retain legal counsel to help it through the process. For Warning, it makes sense to retain counsel at this point, as the benefits are many.
“Engaging counsel as early on in the process is highly recommended because counsel specialized in health and safety matters can provide guidance on a number of issues,” he says. “Not only in identifying potential gaps in an investigation, but also for identifying what legal risks are there too, which will direct the investigation.”
Once an investigation starts, employers follow the same steps no matter the situation.
Step One: The accident scene
The first step in an internal investigation is to examine the scene of the incident and any involved equipment, Warning says. This includes reviewing maintenance records, manufacturer’s or operator’s manuals, pre-start health and safety reviews and any prior regulator visit reports.
Once this initial examination has been completed, the company will be able to determine if it needs to bring in a professional to assist with the investigation. This could be necessary if the cause of the incident does not seem readily apparent and the inclusion of an engineer or forensic investigator, with their technical knowledge, would be able to provide insight, says Warning.
Step Two: The visuals
The next important step in an investigation is to take photographs of the scene. In addition to the photographs, it is useful to take as many measurements as possible. These measurements can be used to create diagrams of the scene, which should also include all the people in the area and what they were doing, says Conlin.
Step Three: The witnesses
Following this, it is necessary to speak to any and all witnesses to the incident. This not only means speaking to those who were present at the time of the incident, but also those who may have information that can round out what may have happened. These potential witnesses include those with the same job or role as the injured party, any supervisors or trainers, or those who have relevant health and safety-related knowledge, Warning says. As an added step, Conlin suggests getting each witness to sign his or her statement.
Step Four: The review
Warning suggests reviewing a collection of documents in order to round out the investigation. He says it is to a company’s advantage to review the training records of the injured party, as well as those of other workers who perform the same job and other workers who were involved in the incident.
The review should also extend to identifying and correcting any relevant workplace policies and procedures, including proof of any third-party training or licensing. Finally, the investigation should review internal health and safety steps, including joint health and safety committee minutes to see if anything relevant to the incident had been discussed in the past.
Choosing the investigator
When performing an internal accident investigation, there is often a question as to who will perform the investigation: an in-house employee, a law firm or a safety consultant?
The answer would depend on the company and the severity of the incident, says Conlin. For an organization of significant size, it is likely there would be a safety professional on staff to perform the investigation. For smaller companies, the likely candidate would be an HR person at a fairly senior level.
In the case of a serious incident, Conlin says it would be more likely for the organization to bring in outside assistance in the form of a safety consultant or law firm. This can often lead to the investigation wrapping up quicker.
“Most accident investigations from an external resource can be completed in less than a day,” he says.
It’s up to the company seeking to do the investigation to decide who would do the job best, says Warning.
“In terms of who is used, it’s really a comfort-level decision for the organization in that whoever is conducting the investigation will be someone who is intimately familiar with the legislative requirements and also the legal framework within which they’re operating,” he says.
Once the investigation is complete, a report is often drawn up that will outline the investigation’s findings. This report will contain valuable information for the company, as well as valuable information for any government inspector investigating the incident. As such, both Warning and Conlin stress the importance of making the report privileged.
In this situation, there are two types of privilege that can be applied: contemplated litigation privilege and solicitor-client privilege. Contemplated litigation privilege does not need a lawyer to be invoked, while solicitor-client privilege does.
Both privileges enable the company to keep the information in the report confidential, but for different reasons. As evidenced by the name, contemplated litigation privilege can be invoked when the information is being compiled in anticipation of legal proceedings.
On the other hand, solicitor-client privilege is invoked in two ways. The first is when legal counsel requests a report be prepared. The second is when an already-prepared report is sent to legal counsel for review.
The benefit to making the report privileged is that, in the event the company faces charges as a result of the workplace incident, the prosecution cannot use the report to strengthen its case. The report may include information that can lead to more charges against the company, as well as provide the prosecution with leads it may not have followed.
“It can be of great assistance to a prosecutor who has never been to the site, likely never will be to the scene of the accident and is relying entirely on the report or the information gathered by the [government] inspector or officer,” Warning says.
With this in mind, it is integral the privilege be maintained, which is done by limiting who has access to the report. In most cases, the only people who should have access to it are legal counsel, senior management and the persons who prepared the report. Furthermore, there should only be as many copies as necessary, and all kept in a secure place.
However, both Warning and Conlin say it is important to realize that privilege is not absolute, and that it can be waived both explicitly and by conduct. Since privilege can be considered to be waived simply by disseminating the report to those who are not covered by the privilege, it is critical the report not be made widely available.