Can Employers Withhold Accident Reports In Court Cases By Asserting Privilege?

7/20/2021
Donald G. Drinko By Donald G. Drinko, Gary D. Baker Jr.

Most employers have accident investigation reports filled out when an employee gets hurt on the job. These reports are often part of workers’ compensation file and can be used during administrative proceedings. But can these investigation reports be withheld by employers in court cases based on privilege grounds?

Recently, the Fifth Appellate District considered an appeal from a Stark County Court of Common Pleas Judgment Entry, which held that attorney-client privilege did not apply to these reports in granting the employee’s motion to compel production of an accident investigation report.

Dawson v. Ohio Gratings Company Inc., 2021-Ohio-2028, concerned an employee who was injured in 2018. After the Ohio Bureau of Workers’ Compensation ruled the employee was entitled to workers’ compensation benefits, the employer appealed the claim to the trial court. During a discovery deposition, the corporate paralegal for the employer’s in-house counsel testified that all injured workers and their supervisors complete an accident investigation report following any work related injury. The completed report is then placed in the employee’s workers’ compensation file. The employee’s attorney then requested a copy of his client’s accident report. The employer’s attorney stated that everything was already in the BWC file other than privileged documents. The report was never provided. The employee later filed a personal injury and loss of consortium against his employer, and requested the accident investigation report be produced during discovery in this case. The employer objected based on their claim that the report was prepared at the request of their personal litigation counsel, and therefore privileged. The employee filed a motion to compel, which was granted by the trial court. The employer appealed this order granting the motion to compel.

The Fifth Appellate District affirmed the trial court’s judgment, finding that the employer failed to show that the attorney-client privilege applied to the accident investigation report. The court noted that the report was made before the filing of the personal injury claim, and cited the paralegal’s testimony where she said that it was the employer’s policy to have these accident reports done as evidenced by the use of pre-printed forms. The court held that the attorney-client privilege could not stop the report from being produced simply because it was given to the employer’s attorney during the workers’ compensation proceedings. The court also found that the work product privilege did not apply either, as the report was prepared in the ordinary course of business.

So while it may be common for employers to require accident reports be completed when an employee gets hurt on the job, it is important that they are aware that these reports will likely be deemed as non-privileged materials in later court proceedings, as shown in Dawson.

If you would like to submit a question to Shop talk, or would like to discuss this or any other workers’ compensation issues, please feel free to contact us.