July 31, 2012
A pair of recent decisions show how complex it can be to analyze whether an incident is immediately reportable, and whether the $5,000 mandatory minimum penalty has any latitude for lower penalties in light of mitigating circumstances.
Under the MINER Act of 2006, enacted after the Sago mine disaster, Congress changed what had been a flexible definition of “immediately reportable” under 30 CFR 50.10 (at the time, generally interpreted by the courts as within two to three hours) and instead put in place a hard and fast rule that any fatality or injury with a reasonable potential to cause death triggered the obligation to notify the Mine Safety and Health Administration (MSHA) within 15 minutes.
In addition, the other types of incidents defined in 30 CFR 50.2(h) as an “accident” (such as hoist outages, or fires that could not be extinguished within 30 minutes) also had to be reported within this time frame, but only failures to quickly report fatalities and serious injuries were punishable by the $5,000 fine. However, in imposing this burden on mine operators, Congress and MSHA both neglected to define the term “injury of an individual at the mine which has a reasonable potential to cause death.”
As a result, mass confusion ensued!
With respect to the mandatory minimum penalty, an Administrative Law Judge took on the issue in the case of 7/11 Materials Inc. (ALJ Manning, June 2012). In that litigation, a miner fell and hit his head, which resulted in a concussion and bleeding. The mine operator testified that it did not believe the injury was life threatening, but nevertheless did report the situation to MSHA within 15 minutes after it learned from the hospital that it was indeed serious.
The judge did not have to adjudicate the matter because a settlement was presented to him by the parties. He noted that Section 103(j) of the Act requires the 15 minute notification in such situations, stating that operators must make the notification “within 15 minutes of the time at which the operator realizes that … an injury … of an individual at the mine which has a reasonable potential to cause death, has occurred.” In settling, the Secretary of Labor had agreed to reduce the negligence level to “low” (most of these are initially issued as “high negligence,” in my experience), based on the fact that the company called 911 immediately after the injury occurred and reported the injury to MSHA within 15 minutes of learning from medical personnel that it was potentially serious. The parties agreed to settle because of genuine issues of material fact, including whether the operator in fact called MSHA only out of an “abundance of caution” even though it did not view the injury as life threatening.
ALJ Manning examined the provisions of the Act – which call for a range of penalties from $5,000 to $60,000 if there is a violation of the reporting requirement — and concluded that, while MSHA had the power to propose penalties (in this case, $5,000) the Commission still had the power to make a de novo assessment based upon the six statutory criteria in the Act, and determine the appropriate penalty on its own. The judges are not, therefore, bound by what MSHA proposes and can lower or raise the penalties on their own volition. The judge found that the language in the Act imposing a mandatory minimum penalty for infractions was binding only on the Secretary of Labor, not on the Commission or its administrative law judges.
Therefore, the judge concluded that he could assess a penalty for a violation of 50.10 that is less than $5,000 in appropriate circumstances (which at least one other judge did in 2011 decision that my firm handled, E.S. Stone & Structure Inc, where ALJ Augustine reduced MSHA’s proposed $5,000 penalty for a 50.10 violation to $2,000, but without discussing the statutory implications). In this most recent case, ALJ Manning reduced the penalty to $750, noting that the violation was not significant and substantial, and the company had only four employees and worked only 9,000 manhours in the previous year. The lesson: don’t simply assume that you must always pay the statutory minimum penalty even if there are considerable mitigating circumstances because at least some ALJs will listen!
The other noteworthy case involving litigation of 50.10 involved Cemex Construction Materials of Florida (ALJ McCarthy, June 2012). At issue was a citation (with a $5,000 proposed penalty) issued 13 months after an incident occurred at the mine where a contractor’s employee received an electrical shock that “could have resulted in a fatal injury,” according to MSHA. The late citation was due to MSHA learning of this through an anonymous Code-A-Phone complaint that claimed the operator had understated the seriousness of the injury when it filed its 7000-1 report.
A full evidentiary hearing was held and the ALJ vacated the citation, finding that no immediately reportable accident occurred because the worker’s injuries from electric shock did not have a reasonable potential to cause death under the totality of facts and circumstances present.
The injury occurred while the contractor was lying on his stomach on a metal surface and touched wires, receiving an electric shock that caused his muscles to tense up. The worker testified at trial that he thought he was having a heart attack after the shock occurred, and his left shoulder was dislocated by the shock’s effects. A co-worker immediately popped the arm back into position, but it popped out again and he started screaming, and was taken to the hospital and was in and out of consciousness. However, the ALJ found that the injured worker was not credible and that his testimony appeared rehearsed in an effort to establish a loss of consciousness and augment the intensity of his injury. More telling, the ALJ said, were the contemporaneous medical records, which failed to establish any loss of consciousness or life threatening injury.
When mine personnel testified, they were asked about how to determine when an injury had a reasonable potential to cause death and examples were given, such as “if they’re unconscious, delirious, bleeding, broken bones.” The company safety manager added that determining if an incident could be immediately reportable was a case-by-case determination and that a dislocated shoulder, coupled with a loss of consciousness of a minute or less was not such an injury. The company did not have a doctor on premises, who might otherwise have assisted in making such a determination, and MSHA did not have any specific guidance on the reportability of these types of electrical injuries.
The MSHA inspector, who claimed to be an electrical expert, also testified and opined that exposure to 240 volts of electricity when shocked “could cause death” because he was aware of fatalities involving exposure to less voltage. When asked why he issued the citation to Cemex, he testified that he could not establish any reason other than violent muscle contractions for the worker’s dislocated shoulder and – in his opinion – that meant the man had received a shock above the magnitude that could cause death, stating “that is an electrical injury that does that and has the reasonable potential to cause death.” He added that if an individual sustains an electrical burn from an electric shock, then it is immediately reportable even if, as here, the person is still lucid, coherent and has no loss of consciousness. He acknowledged that MSHA had given no notice of such a policy, and admitted that not all shocks cause a fatal accident.
In issuing his decision for Cemex, ALJ McCarthy found that the company had no intention of immediately reporting the incident, but differed with Cemex’s assertion that only the contractor had the reporting obligation (if any). The ALJ pointed to a line of cases holding that, when a contractor is involved, the mine operator who supervises the contract worker has responsibility for reporting to MSHA.
However, the ALJ concluded that no immediate reporting obligation ever attached under the circumstances. He said that the determination of what is immediately reportable “cannot be made upon the basis of clinical or hypertechnical opinions as to a miner’s chance of survival” – rather, the judgment is based on what a reasonable person would discern under the circumstances, particularly when the decision whether to call MSHA or not must be made in a matter of minutes after a serious accident.
The ALJ added that types of injures MSHA listed in the preamble to its final rule as having the requisite potential to cause death include: concussions, cases involving CPR, limb amputations, major upper body blunt force trauma, and cases of intermittent or extended unconsciousness.” He pointed to a 2010 decision issued under this standard where ALJ Manning wrote: “The operator must know that an accident occurred before the obligation to immediately report arises or the operator must have been in a position such that it should have known that an accident occurred.”
The judge found that the MSHA inspector’s interpretation was “hyper-technical” and declined to adopt an approach that any electrical shock which causes a burn is per se an immediately reportable injury. He added that if MSHA wants all electric shock injuries to be immediately reported, the agency needs to modify the regulation to say so.
About the author: Adele L. Abrams is an attorney, Certified Mine Safety Professional and trained mediator who is president of the Law Office of Adele L. Abrams P.C. in Beltsville, Md., a seven-attorney firm focusing on safety, health and employment law nationwide. Abrams also provides consultation, safety audits, and training services to MSHA- and OSHA-regulated companies. She is a member of the Maryland, D.C., and Pennsylvania Bars, the U.S. District Courts of Maryland and D.C., the U.S. Court of Appeals, D.C. Circuit and 4th Circuit, and the United States Supreme Court. She is a graduate of the George Washington University’s National Law Center, and earned her Bachelor of Science in Journalism from the University of Maryland, College Park. For more information, contact her at email@example.com or visit the The Law Office of Adele L. Abrams on the Web at www.safety-law.com.