By Ellen Smith
A non-fatal heart attack where a miner did not receive CPR is not an immediately reportable injury under reporting requirements of §50.10, ALJ L. Zane Gill has ruled.
The case stemmed from a miner who felt faint at work, and was taken by a fellow employee to the hospital where he was diagnosed as having a heart attack. Gill used the plain meaning or definition of a heart attack, which “is an acute episode of heart disease marked by the death or damage of heart muscle.”
In explaining that a heart attack is not an accident, Gill said, “The explicit language of §50.10 requires immediate notification only when there has been an accident involving a death, an injury which has a reasonable potential to cause death, an entrapment which has a reasonable potential to cause death, or any other accident the meaning is significant because the immediate notification provision in §50.10 never mentions disease.”
A heart attack could be an “occupational illness,” but to be reported within 15 minutes of occurrence, “an occupational illness is conspicuously absent from the immediate notification provisions in §50.10, §50.11 and §50.12, even though nearly every other section of the Part 50 regulations lists accident, injury, and illness. In fact, none of the Subpart B regulations dealing with immediate accident notification ever mentions illness or disease, anywhere. This is also true of the Mine Act's immediate notification provisions.”
Reporting heart attacks within 10 days, instead of 15 minutes as required for life-threatening accidents, is not inconsistent with the overall context of the regulation, Gill said, and preserves MSHA’s interest in compiling incident statistics.
While the Secretary argued that heart attacks are serious enough to have a reasonable potential to cause death, and a heart attack can be said to cause “injury” to the heart muscle, Gill said it is not the type of injury contemplated by the regulations.
“A heart attack cannot be forced into the definition of ‘injury’ merely because it has a reasonable potential to cause death,” said Gill. He continued, “illnesses and diseases such as diabetes, pneumonia, cancer, depression, and black lung disease could all be swept into the immediate reporting requirement as well if the Secretary's argument prevailed.
“Operators would be required to immediately notify MSHA anytime an employee left work to see a doctor or go to a hospital in relation to any number of ailments. Without proper consideration of whether something is an illness or an injury, focusing on ‘damage or harm,’ or the ‘potential to cause death,’ will lead to absurd results.”
Gill also said that MSHA did not provide any evidence that there was a connection between the miner’s heart attack and his work activity. “The facts support Vulcan's assertion that [the miner’s] heart attack was the result of natural causes and in no way work related, something the Secretary does not dispute.”
Vulcan was also able to produce a 1988 Program Policy Letter stating that “heart attacks are classified as illnesses because they do not normally result from work accidents or a single instantaneous exposure in the environment.” In this case, the Secretary did not refute the PPL.
Gill also noted that in the preamble to the 2006 Miner Act, the Secretary listed certain types of injuries, along with their apparent cause, that are specifically likely to have a reasonable potential to cause death.
Those injuries include concussions, cases requiring cardio-pulmonary resuscitation (CPR), limb amputations, major upper body blunt force trauma, and cases of intermittent or extended unconsciousness. Nowhere in the 2006 Act is there a mention of a non-fatal heart attack having to be reported immediately where CPR was not required.
Vulcan Construction Materials LP, 8/30/2013, Docket No. SE 2010-21-M