There are some OSHA lessons to be learned and things to think about from the recent Third Department case in Silvestri v. New York City Transit Authority, 2017 N.Y Slip Op 06123 (August 10, 2017). In Silvestri, the Third Department affirmed a decision by the Workers’ Compensation Board that the widow of a deceased employee working at the Transit Authority was entitled to benefits because there was substantial evidence that the decedent’s injuries and ensuing death were attributable to an accident that arose out of and in the course of his employment.
The problem was that there were no witnesses to the accident and the employee did not report it. Instead, he went home and told his wife that he had fallen off a ladder and into the “pit” at work. The decedent went to the hospital and was diagnosed with fractured ribs, was given painkillers and sent home. Three days later he went back to the hospital and was diagnosed with a ruptured spleen and a punctured lung and was admitted but died the next day following complications from “blunt impact injuries.”
The court found that testimony of a supervisor that he had witnessed the decedent holding his stomach and indicating that he was not feeling well the day after the accident combined with the declarations of the deceased employee to his wife concerning the accident presented sufficient evidence that the accident occurred in the course of employment.
Clearly the cost, time, and pain of this litigation would have been avoided if the deceased had reported the injury. So why didn’t he report it? Was he afraid he would be disciplined for getting hurt? In addition, although no witnesses came forward to testify they witnessed the accident, the court noted that the widow testified at the decedent’s funeral that she was told by individuals that a coworker had picked the decedent up out of the pit but did not want to come forward with information for fear of losing his job. As we discussed in a previous blog, OSHA’s new recordkeeping rule also requires employers to inform employees of their right to report work-related injuries and illness free from retaliation. This can be done by posting the already-required OSHA workplace poster. The new rule also clarifies the implicit requirement that an employer’s procedure for reporting work-related injuries and illness must be reasonable and not deter or discourage employees from reporting. The decision is devoid of any information about whether anti-retaliation information for reporting workplace accidents was communicated to employees or the terms of the Transit Authority’s reporting procedure, if any, but such evidence may have been useful in this litigation.
This case serves as a good reminder that employers should ensure they are complying with the anti-retaliation requirements and that anytime an employer learns about a workplace accident that part of its root-cause analysis should also incorporate reviewing whether its reporting procedure is effective.