LTV Steel Company, Inc.

Plain-English summary

An LTV Steel millwright suffered a fatal heart attack while working outdoors at the company's Cleveland mill. OSHA cited LTV under the then-current rule requiring an employer to report a death from a work-related incident within eight hours. The judge found no evidence that work activity or a workplace exposure caused or aggravated the heart attack. LTV's medical and safety staff investigated the event, and OSHA's compliance officer identified no additional reasonable step the company could have taken. Because the Secretary did not prove the death was work-related under the rule then in effect, the citation was vacated.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1904.8
• Outcome: Other-than-serious fatality-reporting citation vacated.
• Key point: Under the reporting rule then in effect, a fatal heart attack occurring at work was not reportable without evidence connecting it to work activity or a workplace exposure.

Full text (OSHRC public release)

                      UNITED STATES OF AMERICA
          OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION



                                           :

SECRETARY OF LABOR, :
Complainant, :
:
v. : OSHRC DOCKET NO. 01-0599
:
LTV STEEL COMPANY, INC., :
Respondent. :
:

Appearances: Mary Bradley, Esquire
Mary Anne Garvey, Esquire
U.S. Department of Labor
Cleveland, Ohio
For the Complainant

                   Mark D. Katz, Esquire
                   Ulmer & Berne, LLP
                   Cleveland, Ohio
                          For the Respondent

Before: Michael H. Schoenfeld
Administrative Law Judge

                                DECISION AND ORDER

Background and Procedural History

      This proceeding is before the Occupational Safety and Health Review Commission (“the

Commission”) pursuant to section 10(c ) of the Occupational Safety and Health Act of 1970, 29

U.S.C. § 651 et seq. (“the Act”). On October 3, 2000, an employee of Respondent LTV Steel

Company, Inc. (“LTV”), suffered a fatal heart attack while working at LTV’s steel mill located in

Cleveland, Ohio. The Occupational Safety and Health Administration (“OSHA”) conducted an

inspection of the steel mill on January 10, 2001, at which time the agency learned about the fatality.

As a result of the inspection, OSHA issued a citation to LTV, alleging a violation of the terms of 29
C.F.R.§ 1904.8, because the company had not reported the fatality to OSHA.1 LTV timely contested

the citation, a complaint and answer were filed, the hearing was conducted in Cleveland, Ohio, and

both parties have filed post-hearing briefs.

Jurisdiction

    At all times relevant to this proceeding, Respondent LTV operated a steel mill on Jennings

Road in Cleveland, Ohio. The Secretary asserts and Respondent does not deny that LTV was an

employer engaged in interstate commerce, and I so find. I accordingly conclude that the Commission

has jurisdiction over the parties and the subject matter of this case.

Discussion

    Citation 1, Item 1, the only item in this case, alleges an “other-than-serious” violation of 29

C.F.R. § 1904.8. In pertinent part, the cited regulation requires an employer to orally report to OSHA

within eight hours the death of any employee from a work-related incident. For the reasons that

follow, I find that the Secretary has failed to show that the employee’s heart attack and resulting

death were work-related.

    At the time of his heart attack, the employee, Anthony Banaszak, was outside in the open air,

standing on a furnace cover. He was in the process of hooking the cover to a crane when he suddenly

went limp and fell to the ground. There was no evidence that Banaszak was performing a physically

exerting task beyond the usual duties of a millwright at the time, or at any time during his work hours

that day. Further, the furnace cover was not slippery or oily, there were no electrical wires or lines

or other overhead hazards in the area, and there was no evidence of any environmental hazards in

the area. There was, in fact, no evidence of any health or safety hazard in the vicinity. (Tr. 23-26, 33-

    1
     OSHA simultaneously issued to LTV another citation that resulted in a second case,

Secretary of Labor v. LTV Steel Company, Inc., Docket No. 01-0600. The two cases were
consolidated, but were then severed following the hearing. My decisions in both cases are being
issued today.

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38, 42, 55-56, 72). I therefore find that the Secretary has not established that the fatal heart attack

was work-related. Accordingly, I conclude that the regulation does not apply in the circumstances

of this case.2

    The Secretary does not dispute that the fatality was not caused or aggravated by the

employee’s work activities or by an environmental factor present at the workplace. The Secretary

argues, however, that LTV did not use reasonable diligence to determine the cause of the cardiac

arrest and therefore did not know for certain that the death was not “work related.” (Tr. 31-32). In

support of her argument, the Secretary refers to an OSHA advisory report which suggests that an

employer should report a fatality when in doubt of the occupational origin. See Exhibit G to the

Secretary’s cross-motion for summary judgment.

    I am not persuaded by the Secretary’s argument. The Secretary essentially seeks to shift her

burden of proof to LTV, simply because Banaszak’s heart attack occurred at the workplace. The

preamble to the revised record-keeping regulation, however, makes it clear that under either the old

or the new regulation, such a geographic presumption may be applied only where the illness resulted

from an event or exposure at the workplace.3 See 66 Fed. Reg. 5916, 5929 (2001). The only “event”

or “exposure” shown by the evidence on this record was the heart attack itself. The Secretary

submitted no proof of any “event” or “exposure” at the workplace having a nexus between the

circumstance of Banaszak’s employment and the heart attack, and she therefore failed to show that

the geographic presumption applies to this case.

    2
    For the basic elements of the Secretary’s prima facie case, see Astra Pharmaceutical

Products, Inc., 9 BNA OSHC 2126, 2129 (No. 78-6247, 1981).
3
29 C.F.R.§1904.8 was revised and incorporated into 29 C.F.R. §1904.39, the record-
keeping regulation, with an effective date of January 1, 2002. The preamble to the revised regulation,
which defines the term “work-related” for purposes of both the record-keeping and reporting
requirements, describes the geographic presumption as follows: “(t)he general rule is that all injuries
and illnesses which result from events or exposures to employees on the employer’s premises are
presumed to be work-related.”66 Fed. Reg. 5916, 5928-5929 (2001) (emphasis supplied).

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Moreover, a review of the record as a whole demonstrates, and I find that Respondent

showed by a preponderance of the evidence, that LTV in fact used reasonable diligence to determine

the cause of the employee’s fatal cardiac arrest. LTV’s medical staff reviewed the incident with the

responding paramedics, and LTV’s safety engineer conducted an investigation which included

examining the area and the equipment Banaszak had used and interviewing the witnesses to the

event. (Tr. 69-70, 92-94). Further, the OSHA compliance officer who recommended issuance of the

citation testified that there was nothing else LTV could have done to investigate the cause of the

heart attack. (Tr. 64).4 Despite the allegation that the coroner delayed identifying the cause of death,

the fact that the heart attack was unrelated to Banaszak’s work activities was never in question.

   Finally, the January 1, 2002 revisions specifically amended the regulation to provide that an

employer must report any fatal heart attack which occurs at the workplace. See 66 Fed. Reg. 5916,

6063 (2001). The absence of such a provision in the cited regulation supports LTV’s argument that,

at the time of this incident, the Secretary had to show something more than simply that the cardiac

arrest occurred at the workplace. Indeed, the language of the amendment, and, even though the

Secretary may claim otherwise, its preamble, in effect concedes that a case such as this is not within

the penumbra of the cited regulation as it was worded at the time this citation was issued. The

Secretary is attempting to farcinate the new requirement into the old regulation. This citation item

is vacated.

   4
    I do not find that LTV’s failure to conduct air testing was unreasonable because Banaszak

was outside in the open air at the time of his cardiac arrest and there was no evidence of carbon
monoxide or other toxic material anywhere in the vicinity.

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FINDINGS OF FACT

   All findings of fact necessary for a determination of all relevant issues have been made

above. Fed. R. Civ. P. 52(a). All proposed findings of fact and conclusions of law inconsistent with

this decision are hereby denied.

                               CONCLUSIONS OF LAW

   1. Respondent was, at all times pertinent hereto, an employer within the meaning of the Act.

   2. The Commission has jurisdiction over the parties and the subject matter of this case.

   3. Respondent was not in violation of the terms of 29 C.F.R. § 1904.8.

                                         ORDER

   1. Citation 1, Item 1 is VACATED.




                                                         /s/


                                                 Michael H. Schoenfeld
                                                 Administrative Law Judge

Dated: February 11, 2002
Washington, D.C.

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