Policy Name:	Workplace Fatality & Enforcement Investigation Response Process
Policy #:	SP-23-01
Code/Rule Reference	ORC 4121.17, 4167.01; OAC 4167-1-01, 4167-6-10.
Effective Date:	July 1, 2018
Origin:	Division of Safety & Hygiene
Supersedes:	Bureau of Workers’ Compensation Workplace Fatality Response Process effective August 9, 2010.
History:	Revised October 19, 2018; August 9, 2010. New policy November 14, 2007.
Review Date:	July 1, 2023

 

 

I.      Policy Purpose

 

The Ohio Bureau of Workers’ Compensation (BWC) establishes the following responsibilities and guidelines for various BWC units to coordinate an agency response when workplace fatalities, catastrophic injuries, and safety and health enforcement inspections occur at Ohio workplaces.

 

II.    Applicability

 

This policy applies to the BWC Safety Violations Investigation Unit (SVIU), the BWC Public Employment Risk Reduction Program Unit (PERRP), the Division of Safety & Hygiene, Field Operations Unit (DSH), BWC Claims Services, and BWC Employer Services.

 

III.   Definitions

A.    Catastrophic injury: An event that results in the overnight hospitalization of one or more injured workers, an amputation or near amputation, or loss or serious injury of an eye.

B.    Imminent danger: A condition or practice in any place of employment that BWC learns caused, or is likely to cause, death or serious physical harm to any employee.

C.   BWC Safety Alerts: An email group used by SVIU and PERRP to send notifications about the initiation of a fatality or catastrophic injury investigation. The group receiving notifications consists of DSH administration, BWC Special Investigations Department (SID) administration, BWC Communications, BWC Bureau of Labor Statistics (BLS) program, BWC Claims staff, PERRP staff, SVIU staff, and Loss Prevention Field Operations Management.

D.   BWC Safety Incidents: An email group used by all BWC personnel to send notifications about fatalities and catastrophic injuries to investigative staff. The group receiving notifications consists of PERRP management, SVIU management, loss prevention field operations management, and the BWC catastrophic claims team.

IV.  Policy

Workplace fatalities and other serious workplace safety events require or may elicit different, and sometimes overlapping, responses by various BWC units. It is the policy of BWC that these units respond in a coordinated and complementary manner to avoid duplication of effort, increase efficiency, and improve the overall effectiveness of the collective effort. These efforts will minimize disruption to the employer and provide assistance the employer may need to improve the safety and health of the workplace to prevent recurrence.

A.    Overview.

1.    PERRP and SVIU conduct workplace inspections and investigations as outlined in this policy to identify alleged violations of adopted safety and health rules and standards.

2.    DSH consultants must follow the guidelines of this policy when offering or providing services to an employer who is undergoing an inspection or investigation by PERRP, SVIU, or the Occupational Safety and Health Administration (OSHA).

3.    BWC recognizes a distinction between investigation and consultation. The distinction determines how BWC staff interacts with OSHA, as well as BWC investigations and inspections. OSHA, PERRP, and SVIU involvement with an employer can result in citations that may escalate to a legal proceeding and monetary penalties.

4.    OSHA and PERRP standards require employers to report occupational fatalities within eight hours and catastrophic injuries within twenty-four (24) hours. Most reports will result in an immediate OSHA or PERRP inspection and fatality investigation.

B.    SVIU responsibilities.

1.    SVIU will conduct inspections and investigations in accordance with ORC 4121.17 whenever:

a.    An employee dies after a workplace accident or exposure;

b.    An employee suffers a catastrophic injury;

c.     SVIU identifies an injury that may have resulted from a Violation of a Specific Safety Requirement (VSSR); or

d.    An employee or their authorized representative files an Application for Additional Award for VSSR (IC-8/9) with the Industrial Commission of Ohio (IC).

2.    Upon notification of an employee fatality or catastrophic injury, SVIU will send an email notification to BWC Safety Alerts so response activities can begin.

3.    SVIU will respond to workplace fatalities and catastrophic injuries as soon as possible to obtain the most accurate and complete evidence (e.g. photos, videos, and statements).

4.    PERRP (in the case of a public employee) and SVIU will be the first BWC staff notified and sent to the accident scene or employer’s workplace to investigate. DSH consultative staff must refrain from contacting the employer until PERRP and SVIU complete their investigation. See section IV.D. of this policy.

5.    SVIU will collaborate and share investigative material with PERRP to reduce unnecessary duplication of efforts in obtaining information.

6.    SVIU and PERRP will collaborate and share investigative material with OSHA as permitted by law.

7.    SVIU will provide investigative material to BWC claims staff to assist in the claim determination process.

8.    SVIU will provide investigative material to DSH for use in employer consultation, accident research and training programs.

C.   PERRP responsibilities.

1.    PERRP will conduct inspections and investigations in accordance with ORC 4167.10, whenever any of the following apply:

a.    A public employee refuses a job task with an imminent danger risk;

b.    A public employee dies after a workplace accident or exposure;

c.     A public employee files a complaint of unsafe working conditions;

d.    A public employee suffers a catastrophic injury; or

e.    An employer performs work that is on a high hazard scheduled inspection list.

2.    Upon notification of a public employee fatality or catastrophic injury, PERRP will send an email notification to BWC Safety Alerts so the response activities can begin.

3.    For all enforcement visits, PERRP management will assign a Compliance Safety and Health Officer (CSHO) who will lead the inspection or investigation. When this assignment occurs, the status will change to “in progress” in the Risk Control Inspection database (RCI).

4.    The PERRP CSHO will follow the PERRP Field Operations Manual when conducting inspections and investigations. If the CSHO identifies violations of adopted standards, PERRP will issue a violation notice and citations to the employer with fixed abatement dates. PERRP will send SVIU copies of any citations and upload a copy of the citations to RCI.

5.    When PERRP completes an enforcement investigation and issued citations become a final order, the assignment status will change to “abatement pending” in RCI. DSH consultants may provide services to the employer once an investigation reaches this stage.

6.    PERRP and SVIU will share investigative material to reduce unnecessary duplication of efforts in obtaining information.

D.   DSH responsibilities.

1.    DSH consultants provide consultation, safety management, training, program assistance, safety surveys, ergonomic services, and industrial hygiene services to assist employers.

2.    Whenever a DSH employee becomes aware of a workplace fatality or catastrophic injury from a media report, or other source, the Loss Prevention Supervisor (LPS) will send an email notification to BWC Safety Incidents.

3.    A DSH consultant must terminate any on-site consultative visit already in progress when one of the following OSHA or PERRP enforcement visits is about to take place:

a.    An imminent danger investigation;

b.    A fatality/catastrophic investigation;

c.     A complaint investigation; or

d.    A programmed, scheduled or other inspection initiated by OSHA or PERRP.

4.    OSHA, PERRP and SVIU investigations can take up to six months before they are completed and citations are issued, therefore:

a.    DSH consultants must avoid involvement in any OSHA or PERRP enforcement visit.

b.    DSH consultants must limit their interaction and activities to assisting the employer with the correction of safety and health concerns unrelated to the inspection/investigation process.

c.     If an employer requests virtual consultation about enforcement matters, the DSH consultant must discuss the request with their LPS and secure approval before agreeing to perform those services.

d.    A consultation visit must not take place while an OSHA or PERRP enforcement inspection is “in progress” at the establishment. An enforcement inspection is in progress:

i.      During the period between, when an OSHA or PERRP compliance officer initially seeks entry to the workplace to the end of the closing conference.

ii.     In cases where the employer refuses entry, until such times as:

a)    OSHA or PERRP conducts an inspection or investigation;

b)    OSHA or PERRP determines they will not seek a warrant to require entry to the workplace; or

c)    OSHA or PERRP determines allowing a consultative visit to proceed is in the best interest of employee safety and health.

e.    An onsite consultative visit will not take place after an OSHA or PERRP enforcement inspection until OSHA or PERRP determines not to issue a citation, or if a citation is issued, only after citation items become a final order.

f.      If an employer requests a fatality or accident analysis by a DSH consultant, the DSH consultant should discuss the request with their LPS and secure approval before agreeing to perform such an analysis. Under no circumstances should a DSH consultant participate in a fatality analysis until OSHA or PERRP has completed its investigation.

g.    DSH consultants will follow these guidelines when dealing with any OSHA, PERRP or SVIU findings:

i.      It is appropriate for a DSH consultant to assist the employer in abating hazards and achieving compliance with final OSHA, or final PERRP, citations for accident and injury prevention.

ii.     DSH consultants must not provide an opinion on the accuracy or substance of an OSHA, PERRP or SVIU finding. An employer seeking contradictory evidence for an OSHA, PERRP or SVIU finding may consider hiring a private consultant.

iii.    A DSH consultant should not be a witness on the employer’s behalf at an OSHA, PERRP or SVIU proceeding.

iv.   However, if a DSH consultant receives a subpoena, please refer to the BWC Human Resource Policy Subpoenas, HR – 4.09.

5.    DSH consultants must not conduct joint on-site accident investigations with OSHA, PERRP or SVIU compliance officers and investigators. Although DSH, OSHA and SVIU share a common mission of reducing the risk of workplace injuries and illnesses, the methods of addressing the mission are very different. Separate visits preserve the distinct manner each entity uses to pursue the common mission.

6.    DSH consultants may work with SVIU Safety Investigators to assist an employer with the implementation of a Correction Order issued by the IC. A DSH consultant must confer with their LPS before responding to an SVIU request to provide technical assistance about a VSSR claim.

E.    General guidelines for Claims and Employer Services staff members interacting with the employer.

1.    Claims staff will make a referral to Employer Services to initiate consultative activities.

2.    Employer Services staff will offer the employer assistance in understanding and managing the financial impact of the accident.

3.    Employer Services staff will offer DSH consultation services after OSHA or PERRP completes its investigation.

4.    Claims and Employer Services staff receiving inquiries or questions about OSHA, PERRP, or SVIU inspections and investigations should forward the questions to the BWC Safety Incidents email inbox.