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Judge Rejects Msha'S Claim For Immediately Reportable Injury


One significant provision of the 2006 MINER Act specifies that the Mine Safety and Health Administration must be notified within 15 minutes of learning

ADELE ABRAMS

One significant provision of the 2006 MINER Act specifies that the Mine Safety and Health Administration must be notified within 15 minutes of learning about any fatality at the mine, or injury to a miner that has a reasonable potential to cause death. It further specifies that violations of the immediate-reporting requirement carries a mandatory minimum penalty of $5,000; it can reach as high as $70,000, depending upon other factors present. However, Congress failed to define what categories of injuries have this reasonable potential to cause death, and there has been little case law concerning this issue to date.

On April 14, Administrative Law Judge Manning considered this issue in Newmont USA Limited v. Secretary of Labor, which involved competing motions for summary decision by the mine operator and MSHA. Summary decision can only be granted if there are no genuine issues as to any material fact, and the moving party is entitled to summary decision as a matter of law.

Newmont is an underground metal mine operator. The case involved a miner who was struck by a truck while working in the underground part of the mine. The worker was pinned between the rib of the mine and the truck; he sustained a broken left femur. The miner never lost consciousness, was at all times responsive, and his vital signs were good throughout his emergency treatment. The parties stipulated that the EMT who treated the miner at the scene at no time believed that the worker had suffered an injury that had a reasonable potential to cause death. The miner was, however, taken to a hospital where he had surgery to put pins in the broken bone.

The accident occurred July 23, 2007. MSHA learned of the incident four days later via an anonymous fax to its field office. The inspector who evaluated the situation determined that the injury met the immediately reportable criteria and issued a nonsignificant and substantial citation, but rated it as involving high negligence. The agency proposed the mandatory $5,000 minimum penalty.

Standard 50.10 provides that the operator shall immediately contact MSHA once the operator knows that an accident has occurred. The term ìaccidentî within the meaning of 50.10 relates to the 12 categories of occurrences. However, in a rulemaking that was finalized on April 27, MSHA clarified that only fatalities, injuries with reasonable potential to cause death, and entrapments with reasonable potential to cause death are subject to the mandatory minimum penalty (the other nine categories are still reportable within 15 minutes). The definition of ìaccidentî relevant to this immediate-reporting requirement is distinct from that in Section 3(k) of the Mine Act. It also is distinct in placing the prompt telephonic report requirement that is not mandated for other injuries and illnesses that require medical treatment and must be reported to MSHA within 10 days of occurrence under 30 CFR 50.20.

IN ITS BRIEF for summary decision, the agency argued that a fractured femur had reasonable potential to cause death because of the inherent risks associated with ìhospitalizations and complications in surgery.î It pointed to the potential to develop fat embolisms or deep vein thrombosis, while acknowledging that the potential was minimal. However, the agency advanced a second line of argument: it urged the court to consider ìthe nature of the events surrounding the accidentî in addition to considering the injury itself. The agency maintained that during the first few minutes, the mine operator thought that the worker had been run over by the haul truck, and such an occurrence would have a reasonable potential to cause death.

In its defense, Newmont averred that the agency's interpretation would lead to absurd results, and rebutted the claim of complications as being ìremote, attenuated, and twice removedî from the actual injury. The mine operator pointed out that, if the court accepted the agency's theory, mine operators would have to immediately notify MSHA any time a miner is taken to a hospital. Newmont urged Judge Manning to reject consideration of the nature of the events and instead focus on the injury actually sustained by the miner.

The judge considered the Cougar Coal case from 2003 (predating the MINER Act modifications to the standard) where the commission did consider the nature of events. There, however, the miner was shocked by 7,200 volts of electricity, fell 18 feet, lost his pulse, was unconscious, required CPR, and incurred a head injury. Judge Manning agreed with Newmont that the Cougar Coal case was distinguishable from the circumstances in this matter.

In granting Newmont's motion for summary decision, the judge held that the cited standard does not require mine operators to immediately report every injury that requires off-site emergency care. Although any hospital treatment or surgery could create a risk of complications or infection, these risks are speculative and too remote from the actual injury in this case. Although the mine operator may initially have thought the injuries resulted from being run over and were, therefore, more serious, it learned within a few minutes that a broken leg bone was the extent of the harm suffered. Such an injury did not have a reasonable potential to cause death. Judge Manning added that the mine operator must know that an accident occurred, or be in a position that it should have known that an accident [under 50.2(h)] had occurred, before the obligation to call MSHA arises.

Finally, the judge chastised MSHA for pressing the case. He opined that if 50.10 was interpreted in the manner suggested, MSHA would be inundated with calls reporting all kinds of accidents that are currently not immediately reportable. If virtually every serious injury were immediately reported, MSHA ìwould have to spend precious resourcesî investigating these cases to make its determination Ö ìthe opportunity cost of immediately investigating these types of ëaccidentsí could be significantî and stretch MSHA's inspection force (which the judge called ìpretty thin as it isî). Manning urged the agency to modify its regulations if it really wanted injuries such as a broken leg to be immediately reported, concluding ìit would benefit the mining community if the Secretary would clarify when it is urgent to notify MSHA, when it is not, and what reports are required.î


AUTHOR INFORMATION

Adele Abrams is an attorney and Certified Mine Safety Professional who specializes in MSHA and OSHA enforcement litigation. She has been involved with the aggregate industry for more than 15 years. Adele can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it.