Rock Products - The Leading Voice of the Aggregate Industries.

‘Reckless Disregard’ Finding Upheld for Failing to Report Injury


By Ellen Smith

Signal Peak Energy in Musselshell County, Mont., was found to have acted with “reckless disregard” when it failed to immediately report an accident where a miner sustained serious injuries. The Commission fined the operator $60,000 – the statutory maximum fine allowed under the Mine Act at the time the accident occurred on Dec. 23, 2009.

 

The injured miner sustained a cut on his head, noticeably broken ribs, pain in his chest and back, difficulty breathing, a significant lump in his back, could not move, and told miners assisting him that he was not okay after being propelled about 80 ft. 

The shift foreman, who was also the shift EMT, said he found no obvious signs of concussion, internal bleeding or punctured lung, but admitted that he was unable to take or determine pulse, blood pressure or oxygen levels.

Although he was not able to obtain “vital signs,” he determined that the miner’s injuries were not life threatening, and did not call MSHA.

The shift foreman called the mine’s safety director at home while the miner was being transported out of the mine. The safety director also made the decision not to call MSHA, believing the injuries were not “life threatening.”

Once the miner was assessed by the ambulance EMT, he was brought to Roundup Memorial Hospital, and then airlifted to another hospital in Billings, Mont.  

MSHA Steps In

MSHA did not discover the accident until a reporter made an inquiry six days later, at which point the miner had to have a “left chest tube,” followed by a right chest tube, and then a third surgery for  a T-9 thoracotomy, fusion for a burst thoracic vertebrae. His other injuries included fractures of the left scapula, ribs and sternal fractures. The Commission agreed with the Secretary that the reporting period clearly commenced when [the shift foreman] reached Stewart after the blast that threw him 50 to 80 ft. and “had a significant back protrusion,” and there were concerns of internal injuries and spinal damage.

The preamble to the final rule for §50.10 includes major upper body blunt force trauma in a list of types of injuries which pose a reasonable potential for death, and “a reasonable person should have recognized that an injury with a reasonable potential to cause death had occurred.”

While the section foreman said there were no obvious signs on concussion or internal injuries, the Commission said his initial evaluation was neither conclusive nor exhaustive. The very nature of the accident, as in this case, “is highly relevant in determining whether an injury is reportable.”

The Commissioners agreed with the Secretary that to permit an operator to wait for a medical or clinical opinion would frustrate the immediate reporting of near-fatal accidents.

On the issue of who is to report an accident to MSHA, the Commission said that both the section foreman and the safety director had a duty to report. 

“An operator may not designate one specific person, such as a safety manager, to place the immediate call to MSHA. Once a person with sufficient authority to call learns of an event injuring a miner, the clock begins to run on the period for evaluation of whether the injury presents a reasonable potential to cause death, and a determination of whether a call is required.”

The Commission also stressed that a decision to call cannot be made on the basis of a clinical or a “hypertechnical opinion” as to a miner’s chance of survival. The decision to call MSHA must be made within a matter of minutes.

Safety Director Delay

It was noted in this case that the safety director, who came to the mine after the phone call from the foreman, waited 30 minutes in his car for the ambulance, and during that wait the safety manager had not gathered any substantive information from on-site personnel regarding the roof fall or Stewart’s injuries. The safety director said he was waiting for a medical opinion because he was hoping for a level of certainty in terms of the miner’s prognosis.

“Whether the incident was immediately reportable was not a close call ... a reasonable person would have concluded that [the miner’s] injuries posed a reasonable potential for death based on the available information,” the Commission said.
The company tried to argue the violation was not S&S, as charged by MSHA, since failure to report did not contribute to a hazard as required under the S&S test. The company also noted that MSHA’s involvement was not necessary to remedy the miner’s injuries, nor was any mine rescue necessary.

However, the Commission said while no immediate rescue efforts were needed, §50.10 also requires MSHA to investigate the cause of the accident in order to prevent similar accidents. Failure to immediately report in this case created a hazard, since miners were exposed to a continuing danger.

Several Factors

There were several factors that convinced the Commission that the violation was due to reckless disregard. The company knew it should have reported the accident and failed to do so. The safety manager was “evasive” with the MSHA inspector on the phone when MSHA made the first phone call after finding out about the accident from the reporter, and testimony indicated that the inspector had to “pry” the information out of the company.

The company failed to take any steps to investigate the accident, and its concern was to keep-up production, which altered the scene of the accident. Lastly, the company did not report the accident on the 7000-1 form until after the call from the MSHA inspector.

While agreeing with the ALJ on the violation, the Commission said the ALJ over-stepped his authority when he imposed a fine of $74,250 – up from MSHA’s proposed fine of $49,500.

While an ALJ has the discretion to increase a penalty, the judge may not increase the penalty more than the statutory maximum for a non-flagrant violation. Even though the ALJ called the violations “egregious failures,” and he explained his reasons for increasing the penalties, he could not assess a penalty more than $60,000.

However, the ALJ’s $9,500 fine for the violation for altering the accident scene was affirmed. This was a 400 percent increase from MSHA’s proposed penalty of $1,900. 

SIGNAL PEAK ENERGY LLC., 3/4/2015, FMSHRC No. WEST 2010-1130; 22 MSHN D-475.