Might doesn’t make right

A recent case underscores how far the Secretary of Labor will go to expand her regulatory reach.

By Mark Savit

I try not to write about “purely legal” topics, but a recent decision could have an effect on everybody — even though, at first blush, it may not seem like it. The story is about nothing more (or less) than a broken leg.

It seems every time I talk to a client about their latest citation, the story involves the Mine Safety and Health Administration (MSHA) taking a more expansive view of the regulation itself, or, if not the regulation, whether the alleged citation was significant and substantial (S&S). As we all know by now, the test for S&S was set out in a decision issued in 1981 (Cement Division, National Gypsum Co. 3 FMSHRC 822). That case, and the cases that followed and explained it, essentially held that a violation is S&S if it meets a two-part test: First, the violation must be reasonably likely to result in an accident; and second, that accident must be reasonably expected to result in a serious injury. Despite that well-established and long-standing test, I hear more and more stories about how MSHA came up with a very convoluted and improbable set of events that could lead to an accident and an explanation that, while the accident really wasn’t reasonably expected to result in a serious injury, a person “could die.”

A similar standard of “reasonable likelihood” is found in the accident reporting regulations. Section 50.2(h)(2) requires the immediate reporting of any accident at a mine that has the “reasonable potential” to cause death. Okay, so what does that have to do with S&S? Let me explain.

In 2007, a miner named Andrew Little was walking between an underground haul truck and the rib when the haul truck began to move. The haul truck ran over his right foot and his mine belt was caught by the truck. As a result, Little suffered a fractured femur. EMTs responded quickly to the accident, and Little was transported out of the mine and “life flighted” to a nearby hospital, where surgery was performed. Little was released in about four days. Interestingly, at the start of the next shift, an inspector appeared at the mine to conduct a regular quarterly inspection. Mine personnel told the inspector about the accident and explained that they did not report it because it did not have a “reasonable potential to cause death.” That inspector took no enforcement action regarding the failure to report.

Four days later, a different inspector came to the mine and, after an investigation, issued a citation for failure to report the accident immediately, alleging that it had a “reasonable potential to cause death.” Attempts to settle the matter were unsuccessful, and the case was eventually tried on cross motions for summary decision.

At trial, the Secretary of Labor made several arguments, first arguing that the totality of the circumstances of the accident, in addition to the actual nature of the injuries, must be reviewed when making a decision to report. In this case, the Secretary argued, everyone at the mine thought the miner had been “run over by a haul truck” which, she argued, had a reasonable potential to cause death regardless of the actual injuries incurred. Second, she argued that, since the injury required surgery and complications — such as fat embolisms and deep vein thrombosis — could result from the surgery, the surgery itself presented a potential to cause death, although the Secretary did concede the potential was minimal.

The company responded that the risks resulting from surgery alone cannot be enough to trigger the reporting requirement. If surgery presented a reasonable potential to cause death, the company asked, who in his or her right mind would opt for surgery to fix something like a broken leg? The company went on to argue that the Secretary’s interpretation would require all accidents resulting in surgery to be reported immediately, a scenario not required by the regulation. Finally, the company argued that, while the circumstances of the accident might have a bearing on whether to report, the fact that the victim was examined immediately, had good vital signs, was awake and alert, and was able to tell the EMT he had a broken leg, made the circumstances of this accident irrelevant.