June 1, 2014
Who files injury reports depends on who is directly supervising the contract worker, at least for now.
Recently, in Dickenson-Russell Coal Co. v. Secretary of Labor, Docket No. 13-1374 (4th Cir. 2014), the Fourth Circuit Court of Appeals upheld a judge’s decision that a mine operator providing supervision to a contract employee of a temporary employment agency working at the mine must report the qualifying accident or injury involving that employee by filing an MSHA Form 7000-1.
Dickenson-Russell (Dickenson) received a non-S&S citation alleging a violation of 30 C.F.R. § 50.20(a) for not reporting an injury sustained by an employee of a temporary employment agency, Bates Contracting and Construction (Bates), which was under the supervision of Dickenson, at Dickenson’s Roaring Fork No. 4 Mine. Bates filed an MSHA Form 7000-1 reporting the injury in a timely manner and prior to the issuance of Dickenson’s citation. Before the judge was the issue of whether the provisions of § 50.20 require a mine operator to file an injury report involving a contract employee when the contractor has already timely filed a 7000-1 for that injury.
The Secretary, relying on Speed Mining v. FMSHRC, 528 F.3d 310 (4th Cir. 2008) and Secretary of Labor v. Twentymile Coal Co., 456 F.3d 151 (D.C. Cir. 2006), argued since the contractor, mine operator, or both, can be held liable for the same violation, Dickenson was required to comply with § 50.20 regardless of Bates’s filing of the Form 7000-1. Dickenson argued that the Secretary’s reliance on Speed Mining and Twentymile Coal was misplaced as those cases involved violations by a contractor for which the production operator was also cited. Dickenson further argued that the Secretary had no authority to cite both the mine operator and contractor because no violation had occurred since Bates had timely filed the Form 7000-1.
The judge looked beyond the parties’ arguments to the provisions of Part 50 to resolve the question of filing responsibility. Section 50.2(c)(1) defines “operator” as “any owner, lessee, or other person who operates, controls, or supervises a coal mine.” 30 C.F.R. § 50.2(c)(1). Section 50.20(a) requires, in relevant part:
Each operator shall report each accident, occupational injury, or occupational illness at the mine [within 10 days]. The principal officer in charge of health and safety at the mine or the supervisor of the mine area in which an accident or occupational injury occurs, or an occupational illness may have originated, shall complete or review [MSHA Form 7000-1]. . . .
Relying on these two regulatory definitions, the judge found the party responsible for maintaining a safe working environment is the entity that “operates, controls, or supervises a coal mine.” Hence, it is this “operator” in § 50.20(a) that is responsible for notifying MSHA to ensure that any hazardous conditions cease to exist. The judge also found the supervisor of the mine area where the injury occurred, who is the individual familiar with the circumstances surrounding the reportable incident, is the designated person responsible for completing or reviewing Form 7000-1. Under the facts of this specific case, the judge found that a member of Dickenson management met the requirements of § 50.20(a) since Dickenson was the company controlling and supervising the work performed by the contract employee when he was injured.
In reaching this conclusion, the judge was very careful to limit his holding to the specific facts of this case and that his decision did not address the reporting responsibility of mine operators and contractors under § 50.20 when a contract employee, under the supervision and control of the contractor, is injured.
Dickenson appealed the judge’s decision to the Fourth Circuit Court of Appeals where the judge’s decision was upheld. The Fourth Circuit focused on § 50.20(a) and concluded that any person or entity qualifying as an “operator” under this regulation was required to report within 10 days accidents or injuries occurring at the operator’s mine by filing an MSHA Form 7000-1. The court found that Part 50 regulations include their own definition of the term “operator” that is identical to the statutory definition, except that it does not expressly include “independent contractor” within the meaning of “operator.”
The court noted the judge was careful to limit his decision to cases where the independent contractor was not acting in a supervisory capacity, expressly leaving for another day the question of “the reporting responsibility of mine operators and contractors under section 50.20 when an injury is sustained by a contract employee who is under the supervision and control of the contractor.” The court then interpreted the plain language of § 50.20(a) to mean that anyone who qualifies as an “operator” under 30 C.F.R. § 50.20(a) must report every qualifying accident or injury via the filing of a Form 7000-1. The court concluded where there are two or more operators who are subject individually to the reporting requirement set forth in 30 C.F.R. § 50.20(a), every one of them must report every qualifying accident or injury. The court found the judge’s decision was consistent with this language and stated it “will not disturb the decision of the judge.”
Presumably, the court upheld the limitation of this decision to the specific facts of this case — an operator supervising a contract employee of a temporary employment agency. The court’s rationale seems to support this interpretation when it stated “the wide-sweeping ‘each operator’ requirement precludes operators from shifting via private contract the duty to report accidents and injuries in their mines to independent contractors, such as Bates, that had no supervisory authority at the time of the accident or injury. Such shifting is undesirable in light of the fact that ‘[o]wner-operators are generally in continuous control of mine conditions’ and more aware of the full circumstances surrounding a mining accident and also ‘more likely to know the federal safety and health requirements.’” Thus, the practical effect of this decision may be to reinforce the concept that whoever is providing the supervision for a specific employee carries with it the duty to timely file Form 7000-1 in the event that an employee experiences a reportable injury.
Christopher G. Peterson is a member in Jackson Kelly PLLC’s Denver office, where he practices with the Occupational Safety and Health Practice Group. He can be reached at 303-390-0009 or via email at firstname.lastname@example.org.