Immediate Reporting Only Required if Injury Will Reasonably Likely Cause Death
By Ellen Smith
A company was not required to report an accident to MSHA within 15 minutes where the injury to the miner was not reasonably likely to cause the miner’s death, an ALJ ruled.
Federal Mine Safety and Health Review Commission ALJ Priscilla M. Rae dismissed a $5,000 citation and alleged violation of the immediate reporting standard §50.2(h) against PCS Phosphate-White Spring’s Swift Mine in Florida.
Section 50.10 requires an operator to “immediately contact” MSHA at its special toll-free number once an operator knows, or should know, that an accident has occurred. An accident is defined as any injury which has a reasonable potential to cause death.
The accident occurred on July 16, 2009, when the miner fell 10 ft. to the ground. Another miner at the scene, who is a licensed nurse with EMT experience and training, examined the injured miner and found he only suffered a scalp wound. After a 20-minute evaluation, it was determined the miner did not have any broken bones, his vital signs were normal, pupils were normal and that the injury was not serious enough to cause his death. The operator reported the incident to MSHA one hour and 15-minutes after the fall.
The next day, MSHA Inspector David Rosenau issued the citation, with high negligence but not S&S, with a proposed penalty of $5,000.
The operator moved for summary decision but the Secretary objected, contending that a fall has a reasonable potential to cause death and should have been reported within 15 minutes. Falls are one of the leading causes of death in the workplace and she argued that “the type of accident or the possible results from the type of injury sustained by the miner is what triggers the application of the 15-minute reporting requirement.”
White Springs responded that, based upon the on-site evaluation, an “accident” as defined under §50.2(h) had not occurred and it did not have any responsibility to report to MSHA.
ALJ Rae said the issue boiled down to the legal definition of “the reasonable potential to cause death” in § 50.2(h)(2). Can an operator rely on an on-site evaluation of injury, or should the type of accident determine when an operator must immediately report?
The Secretary said the nature of the accident alone should be the sole determinative factor, citing Thompson Brothers Coal Co., 6 FMSHRC 2094 (Sept. 1984). In that case, the Commission said the “reasonable possibility” of an injury requires only a “minimal” possibility of death occurring when interpreting the phrase “may cause injury” in another standard. Applying this to § 50.10, she argued that her burden of proof is minimal. Also, since the phrase has not been defined, deference should be given to her interpretation.
White Springs said it is the mine operator who decides whether immediate notification is required, under the standard, citing Oneida Coal Co., 11 FMSHRC 810 (May 1989), which noted that whether an operator has met the duty to report “depends on when it possessed reasonably reliable information which would have reasonably lead it to conclude that the accident was immediately reportable.” An inspector arrives after-the-fact, while the operator is on-site, with first-hand knowledge of actual injuries.
Weighing the Arguments
ALJ Rae ruled that the Secretary had not proved her case. Her proposed definition that “reasonable” possibility to cause death should be a “minimal possibility” was “unfounded and unreasonable.”
The section “does not require the operator to hypothetically consider whether there is a minimal possibility of death posed by every accident, to determine whether the 15-minute reporting requirement applies. The operator is given the authority and charged with the responsibility of assessing the situation with due haste and applying all reasonable supported known facts to the situation to make its determination of whether an ‘accident’ has occurred,” she said.
In past cases requiring immediate reporting, the injuries “as known to management on the scene” were obvious and more severe that the injury in this case, the ALJ said. If the victim here had been unconscious, or showed signs of shock or bleeding from the ears or nose, the situation would be different. The miner who checked him had “undisputed trauma and emergency training” and was well-qualified to assess the injuries sustained, and gave the operator a reasonable basis to conclude death was not likely and it need not be immediately reported. E