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AggMan Staff | Published on April 1, 2014

What is an ‘injury which has a reasonable potential to cause death?’

 

lawyerUntitled-1By Arthur Wolfson

 

Every day, mine operators across the country work tirelessly to prevent accidents from occurring at their worksites. Yet, when 12 specific types of accidents do occur, mine operators must report the accident to the Mine Safety and Health Administration’s (MSHA) toll-free number (800-746-1553) within 15 minutes of knowing of it. 30 C.F.R. § 50.10. The 12 ‘immediately reportable’ accidents are:

 

(1) A death of an individual at a mine;

(2) An injury to an individual at a mine which has a reasonable potential to cause death;

(3) An entrapment of an individual for more than 30 minutes or which has a reasonable potential to cause death;

(4) An unplanned inundation of a mine by a liquid or gas;

(5) An unplanned ignition or explosion of gas or dust;

(6) In underground mines, an unplanned fire not extinguished within 10 minutes of discovery; in surface mines and surface areas of underground mines, an unplanned fire not extinguished within 30 minutes of discovery;

(7) An unplanned ignition or explosion of a blasting agent or an explosive;

(8) An unplanned roof fall at or above the anchorage zone in active workings where roof bolts are in use; or an unplanned roof or rib fall in active workings that impairs ventilation or impedes passage;

(9) A coal or rock outburst that causes withdrawal of miners or which disrupts regular mining activity for more than one hour;

(10) An unstable condition at an impoundment, refuse pile, or culm bank which requires emergency action in order to prevent failure, or which causes individuals to evacuate an area; or, failure of an impoundment, refuse pile, or culm bank;

(11) Damage to hoisting equipment in a shaft or slope which endangers an individual or which interferes with use of the equipment for more than 30 minutes; and

(12) An event at a mine which causes death or bodily injury to an individual not at the mine at the time the event occurs. 30 C.F.R. § 50.2.

Invariably, it is the second of these types of events — an injury which has a reasonable potential to cause death — that most confounds operators. The description is vague and leaves too much room for guesswork for a decision that has to be made in a matter of minutes. Recognizing as much, the Federal Mine Safety and Health Review Commission (Review Commission) advised that “it would benefit the mining community if the Secretary would clarify when it is urgent to notify MSHA, when it is not, and what reports are required.” Cougar Coal Co., Inc., 25 FMSHRC 513, 522 (Review Commission, September 2003). Regrettably, more than 10 years after this directive, the Secretary has failed to provide such guidance.

So, what constitutes an “injury which has a reasonable potential to cause death” that requires an immediate report to MSHA? The Preamble to Part 50 regulations states that “some types of ‘injuries which have a reasonable potential to cause death’ include concussions, cases requiring cardio-pulmonary resuscitation (CPR), limb amputations, major upper body blunt force trauma, and cases of intermittent or extended unconsciousness.” 71 Fed. Reg. 71430, 71434 (Dec. 8, 2006). Examples from case law have generally followed suit with the examples listed in the Preamble. Instances where an injured miner requires CPR generally requires immediate reporting. See Cougar Coal, 25 FMSHRC at 520; Pennsy Supply Inc., 34 FMSHRC 3211 (ALJ Koutras, December 2012); E.S. Stone & Structure, Inc., 33 FMSHRC 515 (ALJ Augustine, January 2011). An immediately reportable injury was found due to major blunt force trauma in Lattimore Materials Co., LP, 29 FMSHRC 835 (ALJ Melick, September 2007). In that case, three miners were struck by a 4,200-pound shaker deck as it was being installed. One of the miners exhibited signs of shock, his skin was pale, and he was disoriented. In Mainline Rock & Ballast, Inc. v. Secretary of Labor, 693 F.3d 1181 (10th Circuit 2012), an immediately reportable accident was found when a miner was pulled into a conveyor, lost consciousness, and required the administration of oxygen.

Cases where no immediately reportable accident was found also help illuminate the meaning of the term. For example, in Cemex Construction Materials of Florida, LLC, 34 FMSHRC 1408 (ALJ McCarthy, June 2012), a miner sustained a shock from contact with 240 volts, but no injury which has a reasonable potential to cause death was found because he never lost consciousness, sustained nothing more than a minor shoulder injury, and remained lucid, coherent, and ambulatory. The ALJ noted that neither the incidence of an electrical shock nor the requirement for off-site medical treatment, by itself, renders an injury as one that has a reasonable potential to cause death. Similarly, in Newmont USA Limited, 32 FMSHRC 391 (ALJ Manning, April 2010), no immediately reportable injury was found when a miner sustained a broken leg, but never lost consciousness and remained clear and coherent. Finally, in Cemex, Inc., 35 FMSHRC 1355 (ALJ Miller, May 2013), no immediately reportable injury was found when a miner involved in an electrical incident was temporarily blinded by arc flash and received burns to his hands and face, but never lost consciousness and remained clear and coherent.

An operator has a reasonable opportunity to investigate an event to determine whether an immediately reportable accident occurred prior to the onset of the duty to report. Consolidation Coal Co., 11 FMSHRC 1935, 1938 (Review Commission, October 1989). Such an internal investigation must be conducted “in good faith without delay.” Consolidation Coal, 11 FMSHRC at 1938. In the context of an injury which has a reasonable potential to cause death, the Review Commission has observed that “the decision to call MSHA cannot be made upon the basis of clinical or hypertechnical opinions as to a miner’s chance of survival.” Cougar Coal, 25 FMSHRC at 521. Rather, the decision must be made based on “what a reasonable person would discern under the circumstances.” Cemex Construction Materials, 34 FMSHRC at 1433. The Review Commission has recognized that this decision must be “made in a matter of minutes after a serious accident.” Cougar Coal, 25 FMSHRC at 521.

Despite every precaution taken, serious injury at the worksite can occur. Mine operators should familiarize themselves with the examples in the case law on what constitutes an “injury which has a reasonable potential to cause death,” so that, in the unfortunate event of an injury, they adequately comply with any duty that may arise to immediately report the incident to MSHA.

Arthur Wolfson is a member in Jackson Kelly PLLC’s Pittsburgh office, where he practices with the Occupational Safety and Health Practice Group. He can be reached at 412-434-8055 or via email at awolfson@jacksonkelly.com.

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