Credibility of Injured Employee Key Consideration in Vacating Citation
A recent decision from the Occupational Safety and Health Review Commission shows the importance credibility of witnesses can play in any contested action. In this recent matter, the Administrative Law Judge (the court) vacated a citation against a telecommunications and electrical utilities company (the company) in view of – in large part – the “untruthful demeanor” of the injured employee and the fact that the employee appeared to have “an ax to grind” with his employer.
By way of background, the injured employee filed a complaint with OSHA several months after his accident and only after the company had denied his workers’ compensation claim. An investigation by the company revealed that there had been no potential for electrical injury since there was no power to the box on which the employee had been working and no evidence of any burn marks on his tools or the box. Instead, the Company concluded that the employee’s injuries were the result of falling due to his failure to use a ladder on the job.
In vacating the citation against the company, the court considered, among other things, that three company management witnesses had “testified with confidence, specificity, and certainty.” To the contrary, the injured employee’s testimony “seemed disingenuous, self-serving, designed to support his complaint against [the company], and was not sincere or believable.” In addition, rarely was the employee’s testimony corroborated by the testimony of other witnesses and the employee made pretrial statements that directly conflicted with his trial testimony. In addition, although the Secretary of Labor (“the Secretary”) argued that all of the medical evidence supported the conclusion that the employee had worked on an energized circuit and suffered electrical injuries, no doctors or EMT were ever called by the Secretary to testify. Instead, he relied on their out-of-court statements.
Based on the above, the court described the electrical injury scenario described by the employee as “implausible” and vacated the citation for purported improper protection of employees working in proximity to an electric power circuit.