Secretary of Labor v. Webster County Coal, LLC

Plain-English summary

A large roof rock fell onto contract miner Aaron Rickard at Webster County Coal's Dotiki Mine, causing serious pelvic and internal injuries that required multiple surgeries. Mine personnel evacuated him by air but did not notify MSHA within 15 minutes, and management continued to withhold notice as more information about the injuries became available. Judge David P. Simonton held that the accident's crushing mechanism, the visible hip injury, and the unresolved risk of internal bleeding required immediate reporting under section 50.10(b). He affirmed the violation as S&S and increased negligence from moderate to high because two managers repeatedly failed to report despite mounting evidence. The judge rejected the $65,000 special assessment because a later Part 50 audit and the managers' EMT status did not justify it, but independently assessed a $20,000 penalty.

Decision snapshot

• Cited standard: 30 C.F.R. § 50.10(b)
• Outcome: The S&S violation was affirmed, negligence was increased to high, the special assessment was rejected, and a $20,000 penalty was imposed.
• Key point: Stable vital signs do not eliminate the duty to report when the accident mechanism and observable injuries create a reasonable potential for death.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

721 19 th
St. Suite 443

Denver, CO 80202-2500

TELEPHONE:
303-844-5266 / FAX: 303-844-5268

May 23, 2017

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH    

ADMINISTRATION, (MSHA),

Petitioner,

v.

WEBSTER COUNTY COAL, LLC,

Respondent.

CIVIL PENALTY PROCEEDING

Docket No. KENT 2016-233

A.C. No. 15-02132-401970

Mine: Dotiki Mine

DECISION

Appearances:   Schean G.
Belton, Office of the Solicitor, U.S. Department of Labor

618
Church Street, Suite 230, Nashville, TN 37219 

Tyler
H. Fields, Webster County Coal, LLC

1146
Monarch Street, Lexington, KY 40513

Before:                         Judge Simonton

INTRODUCTION

This case is before
me on a civil penalty petition filed by the Secretary of Labor, acting through
the Mine Safety and Health Administration (MSHA), against Webster County Coal,
LLC (“WCC” or “Respondent”), pursuant to the Federal Mine Safety and Health Act
of 1977, 30 U.S.C. § 815. This docket involves Citation No. 9045176, issued on
October 1, 2015 for a specially assessed penalty of $65,000. The citation was
designated Significant and Substantial (S&S), reasonably likely to result
in a fatal injury, and the result of Webster County Coal’s moderate negligence. [1]
The parties presented testimony and documentary evidence at a hearing held on
February 28-29, 2017 in Madisonville, Kentucky.

At hearing, Inspector
Ray Cartwright and Inspector Jeremy Walker testified for the Secretary. WCC
Miners Shane Armstrong, Brandon Beach, and Patrick Scott were also called by
the Secretary and testified. Mine Foreman Merle Carter, Mine Manager Gary
Thweatt and Safety Director Chris Gunn testified for Webster County Coal. I
have reviewed the evidence and testimony at length, and for the reasons that
follow I AFFIRM the underlying violation and S&S designation as
alleged and increase WCC’s negligence from moderate to high. However, I find

that the Secretary failed to
establish that the violation merited a special assessment. I assess a
civil monetary penalty of $20,000 .

I. FINDINGS OF FACT AND
SUMMARY OF TESTIMONY

The Dotiki Mine
is an underground bituminous coal mine located in Clay, Kentucky, and operated
by Webster County Coal, LLC. On September 28, 2015, contract miner Aaron
Rickard was replacing suction hoses on his side of a roof bolter when a large
rock fell onto him and struck him on the back and hip. Tr. 157-58. Rickard
sustained serious injuries, including a displaced hip, lacerated spleen, torn
urethra, three broken vertebrae, and internal bleeding. Tr. 297. Miner Shane
Armstrong, Rickard’s pin buddy, witnessed the rock fall on Rickard before he
could suggest backing up the roof bolter. Tr. 158. Armstrong believed that
Rickard was dead until he saw him move his head. Tr. 171-72. Unable to move the
rock off of Rickard by himself, Armstrong used a five-foot pry bar to lift the
rock and allow Rickard to crawl out from under it. Tr. 159. He then left
Rickard to get help. Tr. 160.

Armstrong located Mine
Foreman Merle Carter and informed him of the incident. [2]
When Carter arrived at the scene, he found Rickard kneeling under the ATRS of
the roof bolter. Tr. 220. Carter saw the large rock on the roof bolter and assumed
that the rock fell and struck Rickard, though he did not know exactly where the
rock made contact. Tr. 235. Carter did not discuss the specifics of the
accident with Rickard or Armstrong, and was apparently unaware that Armstrong
pried Rickard loose prior to getting help. Tr. 225. Rickard remained conscious
and complained of pain to his back and stomach. Tr. 224. Carter moved Rickard
to protect him from other potential falls and performed a brief physical
examination. Tr. 221-22. He tested Rickard’s alertness, squeezed his fingertips
to check capillary refill, and began feeling around for signs of physical
damage. Tr. 222. Carter noticed that Rickard had an obvious hip injury, but he could
not tell whether it was a deformity or swelling. Tr. 222-23. Because Rickard
was talking, exhibited no breathing issues, and presented stable vital signs, capillary
refill, and skin color, Carter did not believe that the injuries were serious. Tr.
222, 224. He was aware of the requirement to call MSHA under § 50.10(b), but
did not believe it was necessary in this instance. Tr. 233.

Nonetheless, Carter decided
to radio for Rickard to be evacuated from the mine and transported by Life
Flight, a type of air evacuation, to Deaconess Hospital in Evansville, Indiana.
Tr. 223-24. Carter testified that he chose to arrange Life Flight to ensure
that Rickard reached the hospital quickly and avoided additional pain
associated with ground travel from the mine. Tr. 223. He quickly moved Rickard
on to a stretcher and into an ambulance to evacuate the mine. Tr. 227.

Miners Brandon Beach
and Patrick Scott rode with Rickard and Carter in the ambulance to the mine
surface. Beach testified that he was instructed to keep conversation with
Rickard and note any changes to his condition. Tr. 180. He recalled that
Rickard was awake and conscious throughout the 15 to 20 minute ride to the mine
surface. Tr. 180. Though he has no medical or EMT training, Beach could tell
that Rickard’s hip was damaged, and noted that Rickard kept placing his hand on
his backside to indicate where he was in pain. Tr. 179-80. He did not believe
the injury to be life threatening. Tr. 179, 182. Beach saw the rock that struck
Rickard and estimated that the rock was about the size of a table, but could not
testify to its thickness. Tr. 178.

Patrick Scott
performed a secondary examination of Rickard during the ambulance ride. [3]
Scott immediately noticed that Rickard’s left foot was turned outward, an
indication of a hip or pelvic injury, but testified that he could not determine
the precise injury. Tr. 189. Scott checked Rickard’s vitals and examined for
signs of internal bleeding and potential shock. Tr. 189. He noted that
Rickard’s heart rate was elevated, but that his blood pressure and oxygen
levels appeared normal. Tr. 191-92. Scott was unsure whether Rickard’s elevated
heart rate was the result of the high amount of pain or a sign of internal injuries.
Tr. 191-92. Scott examined Rickard’s abdomen to check for internal bleeding. Tr.

193. While Scott stated that Rickard did not exhibit obvious signs of internal
     bleeding, he testified that he could not definitively rule out the possibility.
     Id . Though he knew that pelvic injuries had the potential to be
     life-threatening, Scott considered Rickard to be in stable condition. Tr. 191,
     194.

Scott next treated
Rickard for potential shock despite no outward signs of the condition. Tr. 192.
Rickard remained fully conscious throughout his preliminary treatment and
evacuation, possessed normal skin coloring, and exhibited no sudden changes in
condition. Id . He placed Rickard on oxygen and covered him with a
blanket while Beach and Carter continued talking to him. Tr. 205. Upon
finishing his examination, Scott determined that Rickard’s vitals were stable
and that the injury was serious but not life-threatening. Tr. 211, 223-24, 228.
The time from the injury to reaching the surface appeared to be about 30 to 40
minutes. Tr. 227-28. Rickard was flown to Deaconess Hospital in Evansville,
Indiana, the closest trauma center to the Dotiki Mine. Tr. 272. He would later
be transferred to Nashville, Tennessee for additional surgery. Tr. 99.

Dotiki’s management
learned about the injury shortly after Rickard was transported to Deaconess
Hospital. General Manager Gary Thweatt was not present at the mine at the time
of the accident but received reports of the accident at home. He testified that
he was informed that Rickard sustained a hip injury and his vitals were stable.
Tr. 280. [4]
Thweatt traveled to Deaconess Hospital on the night of the accident to provide
support to Rickard’s family. Tr. 270. He testified that he learned that Rickard
required surgery and was stable, but did not glean additional details
pertaining to Rickard’s specific injuries. Tr. 277-78. Thweatt did not overhear
any information relating to the severity of his injuries, and did not get the
impression that Rickard’s condition was life threatening. Tr. 283. Furthermore,
Thweatt believed that Rickard was not in a life-threatening situation because
he was in the hospital and had already undergone initial surgery. Tr. 327-28. He
remained at the hospital until around midnight when Deputy Safety Director Jake
Quisenberry arrived. Tr. 281.

Chris Gunn, Safety
Director at Dotiki, learned of the accident on the morning of September 29, 2015 when he awoke to missed calls and text messages from
Gary Thweatt and Jake Quisenberry. [5]
Tr. 334. Gunn was aware that Rickard had undergone surgery for internal injuries
but testified that he never believed the injury had the reasonable potential to
cause death. Tr. 384, 387. Gunn testified about his internal investigation into
the accident. Tr. 353-54. He also testified to his role in Inspector Cartwright’s
Part 50 Audit. Tr. 353-54. The Part 50 Audit was conducted after an unrelated
fatality at the Dotiki Mine, and was completed after the instant citation was
issued and specially assessed. [6]
Specifically, Gunn testified that many of the citations issued pertained to a
miscommunication with a contractor nurse, who mistakenly believed that injuries
treated with dermabond were not reportable under the Mine Act. Tr. 347-49.

WCC did not
inform MSHA of the accident at any point on the day of the injury. MSHA
Inspector Jeremy Walker discovered the accident on September 29 by word of
mouth. [7]
He began looking on various social media sites to verify the occurrence and
discovered that Rickard’s girlfriend had posted a brief description and updates
relating to the accident on Facebook. Tr. 63-64; Ex. 4. Walker informed his
supervisor, who called Dotiki and confirmed the accident. Tr. 65. On September
30, Inspector Walker visited Dotiki to conduct an accident investigation. Id .
He interviewed the miners that were present at the time of the accident. Tr.

71. Walker found that Dotiki had already removed the rock from the accident
    scene and had continued mining in the area. Tr. 122.

On October 1,
2017, Inspector Walker issued Citation No. 9045176 alleging a violation of 30
C.F.R. § 50.10(b) for failing to contact MSHA within 15 minutes after
discovering that Rickard’s injuries had the reasonable potential to cause death.
Ex. 7. Walker designated the citation as a Significant and Substantial
(S&S) violation that was reasonably likely to result in fatal injuries and
the result of Webster County Coal’s moderate negligence. Tr. 103-104. At
hearing, Walker testified to increase WCC’s negligence from moderate to high
because he later learned that Gary Thweatt visited the hospital and thus
believed that WCC had additional opportunities to contact MSHA but continually
failed to do so. Tr. 104-05. WCC abated the citation when it notified MSHA of
the accident on October 5, 2017. Ex. 7.

II. PARTY ARGUMENTS

The Secretary argues
that the Respondent violated section 50.10(b) because WCC failed to contact
MSHA within 15 minutes of learning that Rickard’s injuries had the reasonable potential
to cause death. Secretary’s Post-Hearing Brief (Sec’y Br.) at 3. The Secretary
asserts that Carter and Scott should have notified MSHA because they examined
Rickard, immediately noticed the serious injury to his hip, and treated him for
potential shock. Sec’y Br. at 6. Furthermore, the Secretary alleges that WCC’s
decision to call in air evacuation indicated that mine management knew that
Rickard sustained serious injuries, and nonetheless chose not to call MSHA
within the requisite 15 minutes. Id . at 6-7.

The Secretary contends
that the violation was S&S because it deprived MSHA of the opportunity to
fully investigate the cause of the accident, thus exposing miners to potential
uncorrected hazardous conditions. Sec’y Br. at 10. At hearing, the Secretary
argued to modify the citation’s negligence designation from moderate to high
because WCC repeatedly failed to notify MSHA even after receiving additional
information that spoke to the severity of Rickard’s injuries. Id . at
11-12. The Secretary believes that WCC failed to report the accident to MSHA following
Carter’s initial assessment, again when he decided to radio for Life Flight
after learning the rock landed on Rickard, and yet again when Gary Thweatt
discovered that Rickard would need additional surgeries. Id . at 13. Finally,
the Secretary asserts that the violation warrants a special assessment due to
WCC’s admitted history of underreporting accidents at the Dotiki Mine. Id .
at 14.

The Respondent
argues that the citation should be vacated because Rickard’s injury did not
have the reasonable potential to be fatal. Respondent’s Post-Hearing Brief
(Resp. Br.) at 9. While WCC concedes that it did not notify MSHA within
15 minutes after assessing the injury, it contends that Rickard’s injuries did
not constitute an “accident” as defined by the Act because the injury did not
have the reasonable potential to cause death. Id . at 10. Specifically,
WCC contends that its miners were certified EMTs that properly evaluated
Rickard and reasonably determined him to be stable given the facts readily
available at the time of the injury. Id . at 13-16. WCC asserts that the
fact that Rickard was transported via air and was hospitalized do not
automatically trigger the reporting standard, and that the mechanism of injury
and Rickard’s actual condition did not carry a reasonable potential to cause
death. Id . at 19.

Even if WCC is found to have violated
section 50.10(b), WCC argues that the injury was neither S&S nor the result
of high negligence. Resp. Br. at 9. WCC contests the gravity of the violation
because the failure to immediately report the injury did not contribute to the
existence of the hazard of the falling rock that caused the injury at issue. Id .
at 24. Furthermore, WCC claims that preservation of the accident scene provided
little value in preventing similar injuries because the rock fell in an area
with an unsupported top inby the t-bar, and only struck Rickard because he was
replacing suction hoses on the side of the roof bolter. Id . WCC argues
that its negligence should be modified to low because Carter and Scott made a
reasonable and thoughtful decision regarding the reporting requirement and
provided exemplary medical care to Rickard while he remained underground. Id .
at 25. Finally, WCC argues that the Secretary failed to provide adequate
support for a special assessment because Inspector Walker did not consider the
results of the Part 50 Audit in recommending the special assessment, and
because the Part 50 Audit revealed a history of underreporting occupational
injuries under § 50.20, and thus was not considered in or relevant to the
assessment process. Id . at 28-29.

III. ANALYSIS

A.                
The Violation

The cited standard provides:

The operator shall
immediately contact MSHA at once without delay and within 15 minutes, at the
toll free number, 1-800-746-1553, once the operator knows or should know
that an accident has occurred involving:

(b) An injury of an
individual at the mine which has a reasonable potential to cause death.

30 CFR § 50.10(b) (emphasis
added).

Section
50.10(b) requires operators to make a prompt determination of whether an
accident has occurred. Consolidation Coal Co. , 11 FMSHRC 1935, 1938
(Oct. 1989). The provision allows the operator a reasonable opportunity to
investigate the accident before the 15-minute clock begins to run, but the
opportunity must be exercised in good faith and tempered with the need to
immediately notify MSHA once it is clear that a reportable accident has
occurred. Wolf Run Mining Co. , 35 FMSHRC 3512, 3517 (Dec. 2013). The
Commission has held that “the decision to call MSHA cannot be made upon the
basis of clinical or hypertechnical opinions as to a miner’s chance of
survival. The decision to call MSHA must be made in a matter of minutes…” Cougar
Coal Co. , 25 FMSHRC 513, 632 (Sept. 2003). Thus, readily available
information such as the nature of the accident, which entails the hazard itself
and observable indicators of injury or trauma, is highly relevant in
determining whether an injury is reportable. Signal Peak Energy, LLC , 37
FMSHRC 470, 476 (Mar. 2015). The operator, in making the determination whether
to notify MSHA under 30 C.F.R. § 50.10, must resolve any reasonable doubt in
favor of notification. Id . at 477.

WCC’s decision
not to notify MSHA of the accident was unreasonable given the readily available
information concerning the cause and observable indicators of Rickard’s
injuries. A reasonable miner would have recognized that the accident had the
reasonable potential to cause death and immediately reported it to MSHA within
the requisite 15 minutes.

The nature of Rickard’s
accident was a crushing-type injury to the pelvic area caused by a large rock
that fell from the roof of the mine. By all accounts, the rock that struck
Rickard was approximately twelve inches thick and large enough to cause serious
injury or death. Tr. 158, 221, 234. The rock fell from between eight and ten
feet, the standard height of the roofs throughout the Dotiki Mine. Tr. 86. Armstrong
testified that the rock landed and came to rest on Rickard. Tr. 159. He was
unable to lift the rock on his own. Tr. 172. He had to use a five-foot pry bar
to move the rock sufficiently to allow Rickard to crawl out from under it. Id .
The contact was so severe that Armstrong believed that Rickard was dead until
he saw Rickard move his head. Id . at 171.

It was readily
apparent that a crushing-type injury may have occurred. Even those WCC miners
with no medical experience immediately noticed that Rickard’s hip was damaged. Carter
and Scott, both certified EMTs, testified that they were unable to identify the
exact type of hip injury, raising doubts about the possibility of severe internal
injuries. [8]
Tr. 222-23. The cause and extent of the injury was readily apparent, and Carter
and Scott acknowledged that a hip injury was potentially life-threatening. Tr.
193-94, 234. Carter testified that the size of the rock posed a risk of a
serious crushing injury if it came to rest on Rickard. Tr. 234. Rickard was
complaining of back and stomach pains, indicating that the damage extended
beyond his visible hip injury. Tr. 224. Upon learning this information, a
reasonable miner would have realized that the accident had the reasonable
potential to cause death and thus known to notify MSHA as required under §
50.10(b).

I find that WCC
violated section 50.10(b) when Carter opted not to notify MSHA within 15
minutes after his initial assessment of Rickard’s injuries. Carter was Rotating Foreman, and therefore responsible for
the entire mine at the time of the accident, and possessed the authority to
notify MSHA of the accident. Tr. 228-29. He was aware of the Part 50
reporting requirements and had notified MSHA under the standard in the past. Tr.
232-33, 237-38. He was the first member of management to arrive at the scene
and the first certified EMT to examine Rickard. The scene was undisturbed, and
both Rickard and Armstrong were available to answer any questions regarding the
cause or details of the accident. Given Carter’s authority and experience and
the nature of the accident, I find that a similarly situated reasonable miner
would have assessed Rickard’s injuries and the scene of the accident and
determined that Rickard had likely sustained serious and reportable internal
injuries.

WCC asserts
that Carter’s preliminary assessment of Rickard indicated that he was stable
and that its decision not to notify MSHA was therefore reasonable. I disagree. Section
50.10(b) requires merely that the injury has the reasonable potential to
cause death, not that the injury is actually life-threatening. See Red River
Coal Co. , 39 FMSHRC 368, 393 (interpreting the Commission’s decision in Signal
Peak , 37 FMSHRC 470, 474 (Mar. 2015) to apply a common sense approach to
what constitutes a “reasonable potential to cause death.”). The provision
therefore requires a reasonable possibility that an injury may be fatal to
trigger the requirement. With this in mind, I find that the fact that Rickard
was conscious, alert, and that his initial vitals were stable do not overcome two
important factors that should have prompted the Respondent to report the
accident.

First, the
readily observable nature of Rickard’s injuries and his own comments indicated
the potential existence of serious internal injuries. Carter observed the size
of the rock and immediately noted damage to Rickard’s hip and pelvic area, in
close proximity to vital organs. Although Rickard remained conscious and
responsive, he complained about back and stomach pains, neither directly
related to his hip. Tr. 222-24. These comments should have indicated the reasonable
likelihood of undetectable internal injuries, and indeed, Rickard sustained
severe internal injuries that went undetected until he arrived at the hospital.
At the very least, the readily apparent information at the accident scene
should have prompted WCC to resolve its doubts in favor of notification. See
Signal Peak Energy, LLC , 37 FMSHRC at 477.

Second, the
discrepancy over whether or not Carter was aware that the rock fell on top of
Rickard indicates that his assessment of the nature of the injury was
incomplete and therefore unreasonable. When Carter arrived at the scene, the
rock was no longer on top of Rickard, and Carter apparently assumed that the
rock merely struck him and did not land on him. Tr. 234-35. He did not recall asking
Armstrong how the rock struck Rickard. Tr. 235. Armstrong however, credibly
testified that Carter asked him if he moved the rock off of Rickard when he
arrived at the scene. Tr. 161. Carter stated that had he known that the rock
fell on Rickard, he would have reported the injury to MSHA for fear of a
life-threatening crushing injury. Tr. 234.

It is
undisputed that the rock landed on top of Rickard and had to be pried off of
him. Regardless of whether Carter knew that the rock rested on Rickard or
simply failed to ascertain that fact, it is clear that the information was
readily available and would have impacted his decision to call MSHA. At the
very least, Carter should have assumed that a crushing-type injury was a
distinct possibility, and asked either Rickard or Armstrong to specify
precisely what happened or assumed that a crushing type injury occurred. To
fail to determine the available details of the accident while performing a
medical examination is inherently unreasonable.

Inspector
Walker testified that Carter also should have notified MSHA after his decision
to radio for Life Flight. Tr. 397-98. He believed that Carter’s decision to
call for air evacuation indicated that his assessment of the accident had
increased from stable to critical. Tr. 398. While I find Inspector Walker’s
testimony to be credible on the whole, I do not credit this assumption. Walker
admitted that Carter never explicitly told him that he made the call to Life
Flight because his assessment of the accident had changed. Tr. 411. Walker
testified that this was merely an assumption based on Carter’s actions. Id .
I credit Carter’s testimony that he radioed for Life Flight to ensure that
Rickard reached the hospital as quickly and comfortably as possible, not
because he believed the accident was life-threatening. Tr. 223.

Additionally, I
do not find that the use of Life Flight automatically triggers the reporting
requirement. Life Flight is intended for serious injuries, but it is also the
best way to ensure rapid and comfortable transportation for injured miners,
regardless of whether their life is at stake. Section 50.10(b) does not specify
the conditions required for an injury to carry the “reasonable potential to
cause death,” and to read use of Life Flight into that definition may deter
operators from employing what is a safe and effective method of emergency
transportation.

Next, Inspector
Walker alleged that WCC should have notified MSHA once Patrick Scott began
treating Rickard for potential shock. Tr. 100. Walker testified that an EMT
would not normally treat a patient for shock unless the patient exhibited signs
of shock. Tr. 136. I decline to find that the decision to treat an injured miner
for potential shock automatically triggers the reporting standard in §
50.10(b). Although the onset of shock has a reasonable potential to cause
death, merely treating for the possibility of shock does not elevate the
severity of the injury in itself. Scott testified that Rickard did not exhibit
symptoms of shock during his examination, but he administered treatment for
potential shock, such as providing a blanket and oxygen, to ensure Rickard’s
comfort, and would do the same for any injury for which shock remained a
distinct possibility. Tr. 192. He noted Rickard’s injury could have been
life-threatening and that while he checked Rickard for symptoms of internal
bleeding he could not definitively rule out the possibility. Tr. 193. I credit
Scott’s testimony that Rickard did not exhibit any outward signs of shock and that
his decision to treat for potential shock was to err on the side of caution and
also to keep Rickard as comfortable as possible during his evacuation to the
mine surface. Tr. 211. Though WCC should have already notified MSHA after
Carter’s assessment, Scott’s decision to treat for shock does not in itself
suggest that WCC knew Rickard’s injury had the potential to cause death.

Even assuming
that WCC’s initial assessment of Rickard’s injury was reasonable, I find that WCC
knew or should have known that Rickard’s condition merited contacting MSHA when
Gary Thweatt learned of Rickard’s need for surgery and internal injuries the
night of and the day after the accident. [9]
Tr. 259-61. On the night of the accident, Dotiki contacted Thweatt and told him
that Rickard sustained a hip injury, that his vital signs were stable, and that
Rickard was being flown to the nearest trauma center in Evansville. Tr. 272. Thweatt
traveled to Deaconess Hospital and introduced himself to Rickard’s family, but testified
that they had no additional information regarding his condition at that time. Tr.

275. Thweatt overheard the doctor inform the family that Rickard would need
     additional surgery and was stable, but did not learn any specific details at
     that time. Tr. 279.

Thweatt
testified that he learned more about the details of Rickard’s accident and
injuries the following day. He knew that the rock was large enough to kill or
seriously injure a miner, and learned that the rock fell and pinned Rickard
against the ATRS. Tr. 301. He also learned of Rickard’s lacerated urethra and
that Rickard needed multiple surgeries. Tr. 298-300. I find Thweatt’s testimony
on these points to be inconsistent. Thweatt testified that he knew of the
lacerated urethra the day after the accident, but walked back that testimony to
state that he was unsure that he ever got all of the details concerning
Rickard’s condition. Tr. 298-300. It is unlikely that Thweatt, the General
Manager of Dotiki Mine, was only informed of some of Rickard’s serious injuries
but remained in the dark about others. I find it probable that if Thweatt knew
about the lacerated urethra, he likely knew or should have known of Rickard’s
other serious internal injuries and made the decision to notify MSHA.

Nevertheless,
Thweatt did not notify MSHA after learning this additional information because
Rickard was already in the hospital having surgery. Tr. 298. In fact, WCC did
not notify MSHA as required under the standard until after Inspector Walker
issued the citation on October 1, three days after Rickard’s accident. Tr. 303.
I find it unlikely and unreasonable that, after commencing an investigation and
learning more about Rickard’s injuries, Thweatt was not aware that his
condition merited notifying MSHA. Thweatt clearly explained his understanding
of the accident, what he remembered of the details of Rickard’s injuries, and
his knowledge that Rickard was airlifted to Nashville for multiple surgeries. Tr.
319.

WCC argues that
Thweatt did not learn of the severity of Rickard’s injuries until after he had
undergone surgery, and thus the injuries were repaired and no longer posed a
reasonable potential for death. Resp. Br. at 21. While this may be true, the
fact remains that WCC did not call MSHA until well after the disputed citation
was issued. Thweatt learned of the extent and specifics of the accident by
September 30 and still did not report the accident to MSHA as required by the
standard. I find it unreasonable that neither Carter nor Thweatt, in their capacities
as EMTs and authority figures at the mine, took it upon themselves to fully
understand the accident or to err on the side of caution and notify MSHA of the
accident based on what they understood about Rickard’s condition. Even after
receiving significant detail regarding the incident and talking with MSHA the
following day, WCC still failed to fulfill their obligation under § 50.10(b)
until October 5, well after the citation was issued on October 1. Tr. 305-06;
Ex. 7.

WCC cites ALJ
Manning’s decision in Newmont USA Limited , 32 FMSHRC 391 (Apr. 2010)
(ALJ) to argue that the citation should be vacated. In Newmont USA Limited ,
MSHA alleged a violation of section 50.10(b) when an employee sustained a
fractured leg from being run over by a haul truck. Id . at 934. The
Secretary alleged that the fractured femur had a reasonable potential to cause
death because of risks inherent with hospitalizations and complications in
surgery. Id . ALJ Manning found that Newmont was entitled to summary
decision and vacated the citation because the risk of death from surgery or
hospitalization was too remote from the leg injury itself and that the
regulation did not require mine operators to report every injury that required
off-site emergency care. Id . at 396.

I find the
present facts distinguishable from those in Newmont . The nature of
Rickard’s injury was significantly more serious than the miner’s broken leg in Newmont .
A crushing injury to the pelvic area carries a high risk of internal injury and
damage to vital organs. This risk is inherently more likely to cause death than
a broken leg. Furthermore, in Newmont , at no time did the EMT believe
that the miner suffered an injury with the reasonable potential to cause death.
Id . at 396. Here, both Carter and Scott admitted that injuries on or
near the pelvic area could result in such injuries, and only changed their
minds after checking Rickard’s vital signs and without considering the
possibility that a crushing injury had occurred. Tr. 194, 234. As noted by the
Respondent, their decision not to notify MSHA was carefully and cautiously
considered, thus indicating some uncertainty to whether Rickard’s injury had
the potential to be fatal. Resp. Br. at 25. Carter and Scott’s examinations,
while instructive, did not alleviate doubt that Rickard was bleeding internally
or had severe internal injuries. Rickard’s hip injury was immediately
noticeable, and the size of the rock, the height from which it fell, and the
fact that it had to be pried off of Rickard all indicate an injury with the
potential to cause death.

For the reasons
discussed above, I find that WCC violated § 50.10(b) when Carter opted not to
call MSHA within 15 minutes of examining the scene of the accident and Rickard’s
sustained injuries and when Thweatt learned of Rickard’s specific injuries the
day after the accident.

B.                 
Significant and Substantial (S&S)

A violation is
significant and substantial (S&S), “if based upon the particular facts
surrounding the violation there exists a reasonable likelihood that the hazard
contributed to will result in an injury or illness of a reasonably serious
nature.” Cement Division, National Gypsum Co., 3 FMSHRC 822, 825 (Apr.
1981).

In order to uphold a
citation as S&S, the Commission has held that the Secretary of Labor must
prove: (1) the underlying violation of a mandatory safety standard; (2) a
discrete safety hazard—that is, a measure of danger to safety—contributed to by
the violation; (3) a reasonable likelihood that the hazard contributed to will
result in an injury; and (4) a reasonable likelihood that the injury in
question will be of a reasonably serious nature. Mathies Coal Co. , 6
FMSHRC 1, 3-4 (Jan. 1984).

The Commission has held
that the second element of the Mathies test addresses the extent to which
a violation contributes to a particular hazard. Newtown Energy, Inc. , 38
FMSHRC 2033, 2037 (Aug. 2016). Analysis under the second step should thus
include the identification of the hazard created by the violation and a
determination of the likelihood of the occurrence of the hazard that the cited
standard is intended to prevent. Id . at 2038. At the third step, the
Secretary must prove there was a reasonable likelihood that the hazard
contributed to by the violation will cause an injury, not a reasonable
likelihood that the violation, itself, will cause injury. West Ridge
Resources, Inc. , 37 FMSHRC 1061, 1067 (May 2015) (ALJ), citing Musser
Eng'g, Inc., 32 FMSHRC 1257, 1280-81 (Oct. 2010). Evaluation of the four
factors is made assuming continued normal mining operations. U.S. Steel
Mining Co. , 6 FMSHRC 1573, 1574 (July 1984).

As an initial matter, the
Commission has held that violations of section 50.10 are mandatory standards to
which S&S designations are applicable. See Red River Coal Co., Inc. ,
39 FMSHRC 368, 392 (Feb. 2017) (ALJ) (citing Signal Peak Energy, LLC , 37
FMSHRC 470, 479 (Mar. 2015). Thus, the first prong of the Mathies test
is satisfied.

The specific hazard posed
by section 50.10(b) is the preclusion of MSHA’s ability to investigate the
cause of Rickard’s accident. The Commission has held that in cases where rescue
efforts are not concerned, Section 50.10 is intended to facilitate MSHA’s
ability to investigate and remedy the cause of an accident. See Signal Peak ,
37 FMSHRC at 480. Thus, failure to report a potentially fatal accident creates
a discrete safety hazard because it precludes MSHA’s investigatory role in
determining and remedying the cause of the accident. Id . Here, Rickard’s
injury posed two concerns: the stability of the roof of the Dotiki Mine and
whether Rickard’s decision to repair the suction hose prior to backing up the
roof bolter was an isolated occurrence. WCC failed to notify MSHA of the
accident, removed the rock that injured Rickard, and continued to mine in the
accident area shortly thereafter. Tr. 122. WCC thus prevented MSHA from
investigating Dotiki’s roof conditions and roof bolting procedures and
determining whether Rickard’s accident was an isolated occurrence or part of a
widespread problem that put miners at risk and merited additional remedy.

The preclusion of MSHA’s
investigatory role is reasonably likely to expose miners to uncorrected
hazardous conditions or behaviors. The failure to report the injury prevented
MSHA from investigating and remedying potentially adverse roof conditions in
the mine and ensuring that Dotiki’s miners were following proper safety
procedures while operating machinery. WCC contends that the hazard was unlikely
to result in an injury because the rock fell from an area of unsupported top,
and only struck Rickard because he was repairing suction hoses by the roof
bolter’s t-bar. Resp. Br. at 24. The record indicates, however, that miners
were already taking shorter cuts due to adverse roof conditions in Dotiki, and that
WCC continued to mine in the same area shortly after Rickard was evacuated from
the mine. Tr. 83-84, 122. Furthermore, Thweatt testified that Rickard’s
decision to try to repair the suction on the roof bolter without backing up was
not typical, suggesting that proper safety procedures may not have been
followed. See Tr. 301-02. Thus, the hazard of precluding MSHA’s
investigatory ability was reasonably likely to result in an injury in the
context of continuous mining operations because it prevented implementation of
additional safety measures and exposed miners to uncorrected hazards.

Finally, exposure to
dangerous roof conditions is reasonably likely to result in a serious injury
similar to Rickard’s. Rock falls of roughly the same size and from the same
height as the one that impacted Rickard are likely to result in serious
crushing injuries. Accordingly, I affirm the Secretary’s S&S designation.

C.                
Negligence

Inspector Walker initially
designated the violation as the result of WCC’s moderate negligence, but moved
to modify the citation to high negligence at hearing. Sec’y Br. at 10; Tr. 104-05.
The Secretary argues that the violation was the result of WCC’s high negligence
because it failed to report the accident to MSHA on multiple occasions, namely after
Carter’s decision not to contact MSHA following his initial assessment and
decision to radio for Life Flight, after Carter learned that the rock fell on
to Rickard and posed a potential crushing injury, and after Thweatt visited the
hospital and learned that Rickard’s injuries required surgery. Sec’y Br. at
12-13; Tr. 403-04, 411-12, 420-22.

WCC argues that it exhibited low negligence
because it provided exemplary medical care to Rickard and its decision not to
immediately report the injury was a conscious and reasonable one made with thoughtful
consideration. Resp. Br. at 25.

I find that WCC was highly
negligent in its repeated failure to notify MSHA of the accident. Under the
Mine Act, operators are held to a high standard of care, and “must be on the
alert for conditions and practices in the mine that affect the safety or health
of miners and to take steps necessary to correct or prevent hazardous
conditions or practices.” 30 C.F.R. § 100.3(d). High negligence occurs when the
operator “knew or should have known of the violative condition and there are no
mitigating circumstances.” 30 CFR § 100.3: Table X. Moderate negligence occurs
when the operator “knew or should have known of a violative condition or
practice, but there are mitigating circumstances.” Id .

The Commission has held that the
operator, in making the determination whether to notify MSHA under 30 C.F.R. §
50.10, must err on the side of caution and resolve any reasonable doubt in
favor of notification. Signal Peak Energy, LLC , 37 FMSHRC 470, 477 (Mar.
2015). Carter and Scott testified that injuries to the hip area could be
potentially fatal and that while Rickard’s vital signs were stable, they could
not precisely identify the injury to his hip or foreclose on the possibility of
serious internal injuries. Tr. 194, 235. Yet inexplicably, WCC opted not to
notify MSHA in spite of these doubts. As discussed in detail above, Carter was
clearly aware of the reporting requirement and should have known, given the
readily available evidence, that Rickard’s injury had the potential to cause
death. Carter did not properly assess the scene of the accident and the
mechanism of the injury, which in combination indicated that Rickard sustained
a potential crushing injury to his pelvic region. Carter should have known that
Rickard was pinned under the rock, and should have notified MSHA immediately
once he learned that the rock landed on Rickard and pinned him to the ATRS. Carter
testified that such knowledge would have led him to contact MSHA for fear of a
serious crushing injury, and yet upon learning that information, he still did
not contact MSHA. Tr. 235.

Furthermore, Thweatt’s decision not
to contact MSHA after being notified that Rickard had to undergo additional
surgeries and was eventually air lifted to Nashville exacerbates WCC’s
negligence. It is at this point that WCC certainly learned of Rickard’s serious
internal injuries. The details of Rickard’s serious injuries conflicted with
WCC’s initial assessment of Rickard and should have prompted an immediate call
to MSHA. However, WCC again failed to report the accident for a number of days
and until Inspector Walker issued his citation on October 1, at which point
MSHA was unable to conduct any investigation of the accident scene.

I acknowledge that WCC’s rapid and
thorough response to Rickard’s injury was commendable but its efforts in this
regard do not mitigate its negligence. Throughout the treatment of Rickard
there remained a reasonable doubt as to the severity of Rickard’s injuries and
there is no dispute that mine management was aware of the reporting requirement.
Mine management continued to assume that Rickard’s stable vitals foreclosed the
need for notification despite learning additional details regarding his injuries.
I thus find that WCC was highly negligent in its repeated failure to contact
MSHA under section 50.10(b), even after learning that Rickard had severe
internal injuries and required extensive surgery.

D.                
Penalty

It is
well established that Commission administrative law judges have the authority
to assess civil penalties de novo for violations of the Mine Act. Sellersburg
Stone Company , 5 FMSHRC 287, 291 (March 1983). The Act requires that in
assessing civil monetary penalties, the Commission ALJ shall consider the six
statutory penalty criteria:

(1) the operator’s
history of previous violations, (2) the appropriateness of such penalty to the
size of the business of the operator charged, (3) whether the operator was
negligent, (4) the effect on the operator’s ability to continue in business, (5)
the gravity of the violation, and (6) the demonstrated good faith of the person
charged in attempting to achieve rapid compliance after notification of a
violation.

30 U.S.C. 820(I).

These
criteria are generally incorporated by the Secretary within a standardized
penalty calculation that results in a pre-determined penalty amount based on
assigned penalty points. 30 CFR 100.3: Table 1- Table XIV. If the conditions of
the violation so warrant, the Secretary may waive the regular assessment under
§ 100.3(a) and specially assess a penalty. 30 C.F.R. § 100.5(a). The special
assessment must also be based upon the six criteria outlined above, and all
findings must be in narrative form. 30 C.F.R. § 100.5(b).

I find that
the Secretary failed to establish that the violation merited the proposed
special assessment. The Secretary primarily argues that WCC demonstrated a “pattern
of conduct” in failing to report or underreporting violations that would only
be deterred by upholding the specially assessed penalty. See Sec’y Br.
at 14-15. The Secretary offered a Part 50 Audit conducted after an unrelated
fatality occurred at the Dotiki Mine in early 2016. Tr. 17-18; Ex. 10. For the
following reasons, I find the audit to be of minimal evidentiary value and do
not believe that it justifies the proposed special assessment.

First, the
audit alleges numerous § 50.20 violations for failing to report occupational
injuries or illnesses but does not allege any § 50.10 violations. See Ex.

10. Section 50.10 is triggered under vastly different circumstances and permits
    the operator much less time to comply with the requirement. See 30
    C.F.R. § 50.10 (requiring the operator to call MSHA’s hotline within 15
    minutes); § 50.20(a) (requiring the operator to mail the completed injury forms
    within 10 working days). Evidence of WCC’s failures to report occupational
    illnesses or injuries does not prove or support the assertion that WCC likewise
    consistently failed to report injuries with the reasonable potential to cause
    death. 

Additionally,
neither MSHA nor Inspector Walker considered the Part 50 Audit when
recommending and proposing the special assessment. Tr. 426-28. MSHA initiated the
Part 50 Audit well after the issuance of the instant citation, and the
Secretary had already issued the proposed special assessment when the audit was
completed. Tr. 17-18, 26-27. Inspector Walker testified that he based his
recommendation for special assessment on the facts of the citation and that the
Part 50 Audit offered played no part in his decision. Tr. 425-26. In fact, he was
not involved in the audit procedure at all. Id . Yet the Secretary
submitted the Part 50 Audit as evidence for the special assessment without
addressing why either its post hoc citations or Inspector Walker’s findings merited
a special assessment in this case. See Sec’y Br. at 14-15. I therefore
do not find the Part 50 Audit to support the proposed special assessment and
assign WCC’s violation history minimal weight.

Inspector Walker
testified that he recommended the special assessment in light of the mechanism
of Rickard’s injury and because Carter, as an EMT and Rotating Foreman, should
have known that the situation required immediate notification to MSHA after
radioing Life Flight. Tr. 430-31; 439. As discussed above, WCC violated the
standard after Carter’s initial assessment, but that his decision to radio Life
Flight should not factor into the violation. I agree that Life Flight is
intended for critical situations, but I credit Carter’s testimony that his
decision to do so was to provide Rickard with the quickest and most comfortable
access to the nearest hospital. I decline to penalize WCC for using Life Flight
and do not wish to deter the practice when operators determine that it is
warranted.

I also decline to
find that Carter and Thweatt’s EMT certification justifies the special
assessment. See Tr. 430. EMT certification is undoubtedly useful in
assessing injuries and administering treatment in mine accidents. However, it
does not raise the standard of care under section 50.10(b). The Commission has
held that clinical or hypertechnical opinions are not required to merit
notifying MSHA under the standard. See Cougar Coal Co. , 25 FMSHRC
513, 521 (Sept. 2003). While EMTs may be able to provide a more specific injury
diagnosis than the average miner, their responsibility under section 50.10
remains the same; they must quickly assess whether the injury is severe enough
to reasonably conclude there is a potential for the injured miner to die and
notify MSHA if that is the case. Holding EMTs to a higher standard would
frustrate the immediate notification requirement by encouraging more time-consuming
technical examinations of injured miners before making the decision to notify
MSHA. See generally 25 FMSHRC at 521. While Carter and Thweatt should
have been able to determine that Rickard’s injuries had a reasonable potential
to cause death, their EMT certification is not an aggravating factor that
justifies the special assessment. In light of these findings, I vacate the
Secretary’s proposed special assessment.

Turning now to my
independent assessment, I nonetheless hold that the violation is serious and
deserves a significant penalty. Based on the following review of the statutory
penalty criteria, I assess a penalty of $20,000.

I
have already noted that WCC does not have an extensive violation history of §
50.10. Ex. 10. WCC is a large operator and there is no indication that the
penalty will have an impact on its ability to continue in business. Neither
party raised WCC’s size or ability to pay as an issue during the hearing or in
post-hearing briefs.

I
have discussed my findings regarding gravity in the preceding sections. WCC’s
failure to notify MSHA of Rickard’s injury was S&S and reasonably likely to
result in a fatal accident. A violation of § 50.10 precludes MSHA’s
investigatory abilities and forecloses the possible discovery and remedy of
widespread issues in the mine. Signal Peak
Energy , 37 FMSHRC 470, 480 (Mar. 2015). Here,
MSHA was precluded from investigating the existence of unstable or adverse roof
conditions in Dotiki Mine and whether proper safety procedures were followed
when making equipment repairs or adjustments. Both of these potential issues
pose serious threats to miners’ safety. Given the severity of Rickard’s
injuries, any additional injuries caused by WCC’s violation of section 50.10
were likely to be serious if not fatal.

WCC’s
violation was the result of high negligence with no mitigating factors. Carter
and Thweatt, both high-ranking members of Dotiki’s management, independently
failed to notify MSHA of Rickard’s accident on multiple occasions. Carter should
have notified MSHA after his initial assessment of Rickard which revealed that
he may have sustained a crushing injury and certainly when he discovered that
the rock fell on to Rickard and had to be pried off of him. See Tr. 161,
234-35. Thweatt should have notified MSHA when he learned that Rickard needed
surgery on the night he visited his family at the hospital and again when he
subsequently learned of Rickard’s internal injuries and of his transfer to
Nashville for additional surgeries. See Tr. 298-300, 319. Upon learning
this information, WCC did not notify MSHA even days after the accident. Tr. 298,
305-06. The failure of one member of Dotiki’s mine management, let alone two, to
notify MSHA in light of the information progressively gathered during and
subsequent to the accident, is inexplicable. Thweatt and Carter’s continual
failure to notify MSHA demonstrate high negligence and a disregard for the
importance and purpose of section 50.10(b).

I do
not find that WCC demonstrated good faith in abating the citation. Inspector
Walker issued the citation on October 1, 2015, over three days after the
accident. Ex. 7. WCC had not called to notify MSHA at that time, and WCC did
not terminate the citation until October 5, four days after MSHA issued the
citation. See Ex. 7; Tr. 305-06. WCC offered no justification or
explanation for waiting so long to terminate the citation. I do not consider a
four day delay in abatement to be a good faith effort when all that was
necessary to abate the citation was to place a brief phone call to MSHA.

The notification requirement of section 50.10 is an
important standard that promotes MSHA’s role in investigating and remedying the
causes of serious accidents. See Signal Peak Energy , 37 FMSHRC 470, 480
(Mar. 2015). Any injury that creates a reasonable doubt as to whether it has
potential to cause death should trigger the operator’s decision to notify MSHA,
as compliance with the standard is neither difficult nor time consuming. Given
the gravity and negligence of this particular accident and WCC’s failure to quickly
terminate the citation, I find the Congressionally-prescribed minimum penalty to
be an insufficient deterrent for this violation. Considering the above
mentioned criteria, I assess a penalty of $20,000.

IV. ORDER

The Respondent, Webster
County Coal, LLC, is ORDERED to pay the Secretary of Labor the sum of $20,000.00
within 30 days of this order. [10]

/s/
David P. Simonton

David
P. Simonton

Administrative
Law Judge

Distribution: (U.S. First Class Mail)

Schean G. Belton, Office of
the Solicitor, U.S. Department of Labor, 618 Church Street, Suite 230,
Nashville, TN 37219 

Tyler H. Fields, Webster
County Coal, LLC, 1146 Monarch Street, Lexington, KY 40513

[1]
At hearing, the Secretary moved to modify the citation to allege high
negligence. See Secretary’s Post-Hearing Brief (Sec’y Br.) at 10; Tr. 104-05.

[2]
Carter was the Rotating Mine Foreman at the time
of Rickard’s accident. Tr. 218. He has worked at Dotiki for approximately 27
years and has been a certified EMT for approximately 22 years. Id .

[3] Scott has been
a miner for eight years and an EMT for over ten years. Tr. 185. He has
responded to between 20 and 25 calls while working for Webster County Coal. Tr.
196-97.

[4] Thweatt has
been the General Manager at Dotiki since 2012, and has been a certified EMT and
EMT instructor since 1997. Tr. 259-61. He has also served as Assistant General
Manager, Safety Director, and Assistant Safety Director since beginning work at
Dotiki in 2003. Id .

[5] Chris Gunn has worked at Dotiki Mine for 20 years and
is a certified Mine Emergency Technician. Tr. 331-32. He has been Safety
Director at Dotiki since 2011. Tr. 332.

[6] Prior to the hearing, WCC filed a motion in limine to
exclude the citations because they were irrelevant to the issue now before the
court. On February 8, 2017, this court held that the Secretary may admit
evidence and testimony relating to the Audit limited to the citations that were
accepted and pertained to events that occurred prior to the September 28, 2015
accident at issue in this case. See Order Denying Respondent’s Motion in
Limine to Exclude the Secretary’s Evidence and Testimony Related to the Part 50
Audit of the Dotiki Mine.

[7] Inspector
Jeremy Walker worked at Dotiki Mine from 2002 to 2011. Tr. 59. Walker has been a
certified EMT since 1999. Tr. 60. He also used to be an EMT instructor and a
member of the federal mine rescue team. Tr. 62. He has been a mine inspector
for MSHA since 2011, and an accident investigator since 2013. Tr. 61-62.

[8] Section 50.10(b) does not require operators to wait
to determine the exact injury that occurs after an accident. See Cougar Coal Co. ,
25 FMSHRC at 632. However, the fact that Carter and Scott noted an obvious hip
injury but could not determine whether the injury was a swelling, deformity, or
a displacement or the like indicated a reasonable doubt regarding the severity
and implications of the injury.

[9] I wish to emphasize that I do not find WCC or Mr.
Thweatt’s decision to travel to a hospital in support of an injured miner as
evidence of knowledge that an injury has the potential to cause death. I commend
and encourage providing miners and their families support during difficult
times. However, information learned in this context can and should inform an
operator’s decision to notify MSHA if it leads mine management to believe that
an injury has the reasonable likelihood to be fatal.

[10]
Payment should be sent to: MINE SAFETY AND HEALTH ADMINISTRATION, U.S.
DEPARTMENT OF LABOR, PAYMENT OFFICE, P. O. BOX 790390, ST. LOUIS, MO 63179-0390