Consolidation Coal Company

Plain-English summary

Consolidation Coal reported that miner Timothy Smith's hand injury caused no lost workdays after Smith missed his next shift. MSHA cited the company under 30 C.F.R. § 50.20(a), and the judge found that the missed shift resulted from the injury and medical treatment. The Commission reversed, finding that Smith's own testimony showed he could have worked safely and chose to use a personal “Consol day,” so the Secretary did not prove that the missed day was the direct consequence of the injury. Commissioner Lastowka dissented and would have affirmed the citation.

Decision snapshot

• Governing provisions: 30 C.F.R. §§ 50.1, 50.2(e), 50.20(a), and 50.20-7(c)
• Outcome: The judge's violation finding and $200 civil penalty were reversed.
• Key point: A missed shift is reportable as a lost workday only when the Secretary proves that the miner would have worked but could not because of the occupational injury.

Full text (FMSHRC public release)

CCASE:
MSHA V. CONSOLIDATION COAL
DDATE:
19890627
TTEXT:

           FEDERAL MINE SAFETY & HEALTH REVIEW COMMISSION
                          WASHINGTON, D.C.
                             June 27, 1989

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

   v.                Docket No. VA 87-27

CONSOLIDATION COAL COMPANY

BEFORE: Ford, Chairman; Backley, Doyle, Lastowka and Nelson,
Commissioners

               DECISION

BY: Ford, Chairman; Backley, Doyle and Nelson, Commissioners

In this civil penalty proceeding arising under the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. $$ 801 et seq.
(1982)("Mine Act"), the issue before us is whether Consolidation
Coal Company ("Consol") violated 30 C.F.R. $ 50.20(a), a standard
that requires reporting lost work days resulting from occupational
injuries. 1/ In

1/ 30 C.F.R. $ 50.20(a) states in part:

         Each operator shall maintain at the mine
office a supply of MSHA Mine Accident, Injury, and
Illness Report Form 7000-1.... Each operator shall
report each accident, occupational injury, or
occupational illness at the mine. The principal
officer in charge of health and safety at the mine
or the supervisor of the mine area in which an accident
or occupational injury occurs, or an occupational
illness may have originated, shall complete or review
the form in accordance with the instructions and criteria

in $$ 50.20-1 through 50.20-7.... The operator shall
mail completed forms to MSHA within 10 working days after
an accident or occupational injury occurs or an occupational
illness is

~967
lieu of a hearing, the parties submitted the case for decision on
the basis of the written record. Commission Administrative Law
Judge James A. Broderick granted the Secretary's motion for summary
decision, holding that Consol violated the standard. The judge
assessed a civil penalty of $200. 10 FMSHRC 560 (April 1988)(ALJ).
We granted Consol's petition for discretionary review. Because we
hold that substantial evidence does not support the judge s finding
of a violation, we reverse.

Consol owns and operates the Buchanan No. 1 mine, an

underground coal mine located on Keen Mountain, Buchanan County,
Virginia. Timothy Smith, the miner whose injury gave rise to the
allegation of violation, had been employed at the mine since June 24,
1986, as a general inside laborer on the midnight to 8 a.m. shift.
Smith's usual duties included building cribbing, loading conveyor
belts, shoveling belts and loading cable. 2/ At about 1:45 a.m.,
on the morning of August 25, 1986, Smith was setting timbers for
cribbing in the 2 West left return when his right hand was caught
between two timbers. Smith's fellow worker escorted him to the
service shaft where he was met by the shift foreman, who took him to
the surface. After observing that Smith's hand was swollen and the
nail on the right thumb was smashed, the foreman ordered that Smith
be driven to Buchanan General Hospital in Grundy, Virginia, a distance
of 15 or 20 miles, requiring about 30 minutes' travel time.

At the hospital, Smith was examined by Dr. Yusuf Chanbhry,

whose report listed the injury as a "Fracture (R) Hand 5th Finger."
JX-4. The report also stated that Smith could return to "light work"
by September 1, 1986, and to "regular work" on September 15, 1986.
Id. The doctor placed a splint on the finger and referred Smith to
an orthopedist, Dr. L. Bendigo, in Richlands, Virginia.

Smith was driven from the hospital back to the mine, arriving

there shortly before 5 a.m., and was told by the shift foreman that he
could go home. Smith, however, had to wait until the end of the shift
for a ride home. Smith left the mine at about 8:45 a.m., and arrived
at his home in North Tazwell, Virginia, at about 9:30 a.m. He then
telephoned Dr. Bendigo's office, obtained a 2:00 p.m. appointment, and
was told to get an x-ray by 1:00 p.m.

  diagnosed.

30 C.F.R. $ 50.2(e) defines "occupational injury" as:

         [A]ny injury to a miner which occurs at a mine for


which medical treatment is administered, or which results
in death or loss of consciousness, inability to perform
all job duties on any day after an injury, temporary
assignment to other duties, or transfer to another job.

2/ The facts relevant to Smith's injury and subsequent absence from
work are based, except as indicated, upon Smith's deposition testimony
under questioning by counsel for the Secretary.

~968
Smith slept for "a few hours," got up about noon, and made
the 30 minute drive to Richlands, Virginia, for an x-ray, after
which he was seen by Dr. Bendigo, at about 3:00 p.m. Dr. Bendigo's
report diagnosed the injury as a fracture of the right 5th finger
and subungual hematoma of the right thumb. JX-4. Dr. Bendigo
aspirated the thumb, drilling two small holes in the nail to relieve
the discomfort, and fitted a hard cast to the palm of Smith's hand
and arm. The cast covered Smith's third and fourth fingers, extending
from the base of the thumb up the right arm to within about three
inches of the elbow. Smith was also fitted with an arm sling and
given a prescription for an analgesic, which he had filled that same
afternoon. Smith took only two of the tablets, and never returned to
the doctor, removing the cast himself several weeks later.

 Smith arrived home about 5:00 p.m. and ate dinner "around

6:00 or 7:00 p.m." Dep. 19. He stated that he normally left home
for work "a little after 10:00 p.m., and would arrive at the mine
"around 11:00 or about 15 after 11:00." Dep. 20. Smith stated that
because he "hadn't been in bed very much" he decided, while eating
dinner, that he would just call in and tell them I wouldn't be in."
Dep. 19. 3/ When Smith was unable to reach Roy Duty, the shift
foreman, at Duty's home, to advise him that he would not be coming
to work, he called utility foreman Kenny Maxfield at home, telling
him he wouldn't be in to work that night. Maxfield replied: "0.K."
Dep. 20. Smith testified that he gave no explanation to Maxfield as
to why he would not work his shift telling Maxfield that he "was going
to take a Consol day." Smith did not offer Maxfield any further
explanation because "I didn't think there was any need to, because
they said we could take two days when we wanted them." 4/ Dep. 23.

Smith explained why he decided to take a "Consol day" in the

following exchange with counsel for the Secretary:

  Q. Why did you decide to take a Consol day? Why
  didn't you go to work that night?

3/ In response to questioning by counsel for the operator, Smith
stated he normally got about seven hours sleep between shifts but on
the evening in question, while eating dinner, he had decided I was
comfortable at home, and decided I'd stay there." Dep. 38.

4/ Smith described a "Consol day" as two days per year given to
employees, in addition to other holiday or vacation days, to be
taken by an employee as desired, for any personal reason, including
illness, subject only to the personnel requirements of Consol for

the particular shift missed. Dep. 21-26 36.38. Mine Superintendent
Joseph Amar, in his Affidavit, described Consol days" as two paid
days per calendar year, taken at the discretion and prerogative of
the employee that can be requested at any time by the employee,
subject to the "sufficiency of manpower that exists on the shift
the employee expects to miss." Amar stated that there is no
requirement that the request be in writing or that it be submitted
"within a certain amount of time prior to an employee's request."
Affidavit 1-2.

~969
A. Well, I hadn't had much sleep, and I just felt
like, you know -- I don't like working, without having
the amount of sleep that I like to have.

   Q. Did you feel that you could safely work?

   A. Yeah. I could have worked. I mean I've went in
   to work with a lot less sleep.

Dep. 22.

On his return to work the next day, Smith told Roy Duty that he

had not had much sleep and since he had two days that he had to use
sometime, he had decided to take the day off. When asked by Duty if
he could have come to work, Smith replied, "Yes." Dep. 23, 31.

On September 2, 1986, Consol's mine safety inspector,

Richard French, filed with MSHA a Mine Accident, Injury and
Illness Report Form 7000-1, reporting Smith's occupational injury.
The form indicated "0" as the Number of Days Away from work" after
the injury. 5/ As required, a copy of the form was kept at the
mine office. See 30 C.F.R. $ 50.20-1; JX-2.

 During April 1987, MSHA Inspectors Kenneth Shortridge and

Ronald Blankenship conducted an audit at the Buchanan No. 1 mine of
all the Forms 7000-1 filed by Consol in order to review Consol's
compliance with Part 50. In reviewing the form filed for Smith's
accident, Shortridge noticed that Smith had not worked the shift
following the injury. Shortridge stated that when he asked why Smith
did not work on the shift following the injury, he was told that Smith
"hadn't had his sleep" and had asked for and was granted the next day
off. Dep. 21. 6/

5/ 30 C.F.R. $$ 50.20-1 through 50.20-7 list the instructions and
criteria for completing MSHA Form 7000-1. With regard to Item 30 on
Form 7000-1, number of days away from work, section 50.20-7(c) states:

         Item 30. Number of days away from work. Enter
the number of workdays, consecutive or not, on which
the miner would have worked but could not because of
occupational injury or occupational illness. The
number of days away from work shall not include the day
of injury or onset of illness or any days on which the
miner would not have worked even though able to work.
If an employee loses a day from work solely because of


 the unavailability of professional medical personnel for
 initial observation or treatment and not as a direct
 consequence of the injury or illness, the day should not
 be counted as a day away from work.

6/ Under questioning by counsel for Consol, Shortridge stated that he
had not interviewed Smith at the time of the audit and had not talked
with him since that time. Dep. 10. Shortridge also stated he had not

~970
In December 1986, MSHA had issued instructional guidelines
for completing MSHA Form 7000-1. 7/ The 1986 guidelines replaced
guidelines issued by MSHA in 1980. Shortridge stated that he used the
1986 guidelines in conducting the Part 50 audit at the mine. Dep. 12.
Shortridge also stated that, as he interpreted the 1986 guidelines for
determining the number of days away from work, only if an employee had
"pre-arranged" a day off prior to the occurrence of an injury could
the employee's absence not be counted as a lost-time accident. Id. 8/

reviewed any of the medical reports on Smith's injury.

7/ The 1986 instructional guidelines are contained in MSHA Report on
30 C.F.R. Part 50. The guidelines for determining the number of lost
workdays to be indicated in Item 30 of form 7000-1 state:

 Item 30: Enter the number of workdays, consecutive or
 not, that the employee would have worked but could not
 because of the occupational injury or illness. The
 number of days away from work should not include the
 day of injury or onset of illness or any days that the
 employee would not have worked even though able to work.
 If an employee loses a day from work solely because of
 the unavailability of professional medical personnel for
 initial observation or treatment and not as a direct
 consequence of the injury or illness, the day should not
 be counted as a day away from work. If an employee, who
 is scheduled to work Monday through Friday, is injured on
 Friday and returns to work on Monday, the case does not
 involve any "Days Away From Work" even if the employee
 was unable to work on Saturday or Sunday. If this same
 employee had been scheduled to work on Saturday, even if
 that Saturday constituted overtime, the Saturday would be
 counted in the "Days Away From Work", and the case would
 be classified as Lost Workday Case. [An injured or ill
 employee cannot avoid accumulating lost workdays by being
 placed on vacation or personal leave. If the employee had
 been scheduled to work the days the employee lost due to his
 or her injury or illness would be counted as lost workdays.]
 Do not include in the lost workday count holidays or any days
 on which the mine was not operating for any reasons.

(Emphasis in original). JX-7, p.7. The two sentences within the
brackets were not contained in the 1980 guidelines. The rest of the
paragraph is essentially the same.

8/ The 1986 guidelines also state that "If the employee had been
scheduled to work, the days the employee lost due to his or her
injury ... would be counted as lost workdays." The preceding sentence
states that an injured employee "cannot avoid accumulating lost work
days by being placed on vacation or personal leave." This restriction
has no

~971
Based on his conversations with Consol's management and his
interpretation of the guidelines, Shortridge concluded that Smith's
accident and consequent loss of sleep "indirectly" caused him to miss
a day's work. Dep. 21-22. Therefore, Shortridge issued to Consol a
citation charging a violation of section 50.20(a), which states:

          An inaccurate mine accident, injury and illness
 report, Form 7000-1 was submitted to MSHA concerning
 an accident on 8/25/86 that injured Timothy W. Smith
 which resulted in one lost workday. The accident was
 reported as no lost workdays.

 This citation was issued as the result of a Part 50 audit.

In support of her motion for summary decision, the Secretary

argued that Smith's absence was caused by his lack of sleep due to
the time spent seeking medical treatment for his injury and that his
absence was required to be reported as a lost workday. Br. 9. Consol
contended that Smith's decision not to work was entirely voluntary.

The judge upheld the violation, finding that, as a result of

a significant injury to his hand, Smith had to receive initial and
specialized medical treatment which resulted in his being awake
"during nearly all of the period he usually slept." 9 FMSHRC at 563.
The judge found Smith's opinion that he could have worked, but chose
not to do so, "of some significance" but "not conclusive." Id. He
further found "not determinative, or even relevant," the fact that
both Smith and Consol regarded the day off as a "Consol day." Id. The
judge concluded that "the lost work day resulted from a loss of sleep,
which resulted from the necessary medical care which resulted from the
injury," and that it should have been reported as a day away from work
because of the injury. Id.

 On review, Consol argues that Smith's decision not to work

was entirely voluntary and uninfluenced by management, and that his
testimony demonstrates that he was able to work the next shift had
he so desired. The Secretary argues that the judge's decision is
supported by substantial evidence of record and that Consol violated
section 50.20 by failing to report Smith's absence as a lost workday.

 Section 50.20(a) requires each operator to "report each

accident [or] occupational injury at the mine ... in accordance with
the instructions and criteria of $$ 50.20-1 through 50.20-7." Section
50.20-7(c) requires the operator to "[e]nter the number of workdays
... on which the miner would have worked but could not because of

bearing on the "direct consequence" relationship that must be
established between an injury and a lost workday (see p.7 infra),
but we note that it might cloud the issues in this case if read in
isolation. In any event, we need not consider in this case the
effect of this restriction on lost work days reporting since the
challenged report by Consol was made and submitted several months
before the 1986 guidelines were issued.

~972
occupational injury." Thus, the question before the judge was
whether Smith's absence from work on the day following the injury
constituted a day away from work because of the occupational injury.
The judge concluded that it was. The question before us on review
is whether substantial evidence supports this conclusion.

 In resolving the question, we first look to the language

of the Secretary's regulations to determine what constitutes a
"lost workday" reportable on MSHA Form 7000-1. 30 C.F.R. $ 50.1
explains that the purpose of requiring operators to maintain and
file with MSHA reports of occupational injuries is to implement
MSHA's authority "to investigate and to obtain and utilize
information pertaining to accidents, injuries and illness occurring
or originating in mines." Specifically as to "days away from work,"
section 50.1 states: "MSHA will develop data respecting injury
severity using days away from work activity ... as criteria." Under
section 50.20-7(c), an operator is required to report as "days away
from work" the number of workdays on which the miner "would have
worked but could not because of occupational injury." The last
sentence of section 50.20-7(c) provides that a lost workday should
not be counted if it is not "a direct consequence of the injury or
illness" and specifically excludes days lost solely because of the
unavailability of medical personnel for initial observation or
treatment. This exclusion recognizes that the unavailability of
medical treatment is not a "direct consequence" of an injury and
that it does not reflect the severity of the injury involved, MSHA's
stated concern under this regulation. In other words, MSHA recognizes
that other factors may result in lost work days, apart from the
severity of the injury. Similarly, where, as here, the scheduling of
medical treatment results in loss of sleep, such an event bears no
relationship to the severity of the injury involved and is tantamount
to another form of unavailability of medical treatment.

The Secretary's instructional guidelines also emphasize that

there must be a direct cause and effect relationship between the
"days away from work" reported under Item 30, and the inability of
the injured miner to work as the result of an occupational injury.
Under both the 1980 and 1986 guidelines, the operator is instructed
to "Enter the number of work days ... that the employee would have
worked but could not because of the occupational injury." (Emphasis
in original.) Both guidelines reiterate that, if the lost workday is
not the "direct consequence of the injury or illness, the day should
not be counted as a day away from work." JX 7, p.7.

We find no basis either in the Secretary's regulations or

guidelines to support a conclusion that, absent a direct cause
and effect relationship between an injury and a lost workday,
an employee's failure to work following an injury necessarily
constitutes a reportable day away from work. Thus, to establish a
violation, the Secretary must prove that such a connection exists,
i.e., that the lost workday is the direct consequence of the injured
miner's inability to work as the result of the injury. In the case
at hand, this means that in order to establish the alleged violation
of section 50.20(a), the Secretary must establish that Smith "would
have worked but could not because of occupational injury." 30 C.F.R.
$ 50.20.7(c).

~973
The judge found a violation of section 50.20(a) based on
his conclusion that the lost workday resulted from the loss of
sleep caused by the time and travel involved in receiving necessary
medical treatment for the injury. 9 FMSHRC at 563. We agree with
the judge that Smith's injury required treatment that, because of
the appointment time, resulted in a loss of sleep. We find, however,
that the record does not support a conclusion that because of the
loss of sleep, Smith could not work the next day.

Smith's own words weigh heavily against such a finding.

When asked by counsel for the Secretary why he decided to take a
Consol day following the accident, Smith replied that, while he
"had not had much sleep," he "just didn't feel like going to work
that day." Dep. 22, 23. When asked by counsel the critical
question of whether he could have worked safely the day following
the accident, Smith replied "Yeah. I could have worked" and then
voluntarily added "I've went into work with a lot less sleep."
Dep. 22. In addition, Smith stated that when he was later asked by
Consol's mine safety inspector Richard French whether he could have
worked the day following the accident, he answered "yes," and when
asked by counsel for the Secretary whether he had told management
personnel that the had been "up all day" and was having "some pain
and ... had taken medication," Smith stated that he could not recall
having said that. Dep. 31, 33-34.

Smith's unrebutted testimony, rather than establishing that

because of the injury and related loss of sleep he could not have
worked the next day, establishes that he considered himself capable
of working safely. The sole evidence with respect to Smith's loss
of sleep and its effect on his ability to work the next shift was
that of Smith himself. A fair summary of his testimony is that
although he could have worked, he decided that, rather than work, he
would use one of the two Consol days available to him. Dep. 22. 9/

 The Mine Act imposes on the Secretary, in a civil penalty

proceeding, the burden of proving the violation alleged by a
preponderance of the evidence, and imposes a substantial evidence
test for Commission review. See 30 U.S.C. $ 823(d)(2); Secretary
of Labor v. Kenny Richardson, 3 FMSHRC 8, 12 n.7 (January 1981).
Here, the Secretary chose to bring her case, and the judge's decision
rests, not on the severity of Smith's occupational injury, or the
difficulty of performing his regularly assigned duties because of
that injury, but on the loss of sleep incurred in receiving medical
treatment as a result of the injury. To prove her case, the Secretary
was required to establish that as the result of his loss of sleep,

Smith could not have worked the

9/ Smith testified that he was away from home obtaining medical
treatment for a total of four to five hours during the thirteen-hour
period between his arrival home from work and his usual time of
departure back to the mine sometime after 10:00 p.m. Although he was
obviously inconvenienced as to his normal routine, had he not decided
early in the evening to stay home, the actual time available to him
for rest would not have been significantly less than his usual
seven-hour period.

~974
next shift. As we have noted, the sole witness on this dispositive
issue was Smith himself who testified that, although he had not
gotten his usual amount of sleep, he could have safely worked his
next shift, and who voluntarily reinforced that opinion by stating
he had worked previously "with a lot less sleep." If Smith did not
mean to say what he clearly said, the Secretary had full opportunity
while deposing Smith to correct the record, but did not do so. Nor
do we find any record inference or evidence to suggest that Smith's
decision not to work, or his testimony at deposition, was motivated
by concern for his job or by any other inducement on the part of
management. Having produced no probative evidence to overcome Smith's
assertions that he could have worked despite his loss of sleep, we
conclude that the Secretary has failed to meet the requisite burden
of proof necessary to establish the alleged violation.

The substantial evidence standard of review requires a

weighing of all probative record evidence and an examination of the
fact finder's rationale in arriving at the decision. Se Universal
Camera Corp. v. NLRB, 30 U.S. 474 (1951); Arnold v. Secretary of
HEW, 567 F.2d 258, 259 (4th Cir. 1977). Judges must sufficiently
summarize, analyze and weigh the relevant testimony of record, and
explain their reasons for arriving at their decision. See Secretary
v. Michael Brunson, 10 FMSHRC 594 (May 1988), Bjes v. Consolidation
Coal Co., 6 FMSHRC 1411 (June 1984), Robinette v. United Castle Coal
Co., 3 FMSHRC 803 (April 1981). Here, the judge summarily dismissed
without explanation as "not conclusive" Smith:s testimony that he
could have worked and he ignored Smith's statements that he could have
worked safely, that he had done so in the past on less sleep, and that
he had told his shift foreman that he could have worked. While the
judge found that the lost workday resulted from loss of sleep, there
is no evidence in this record that Smith:s loss of sleep prevented him
from being able to work safely the day after his injury. Smith stated
unequivocally that he could have worked safely and his testimony is
the entire evidence of record on this issue. While we have previously
stated that we do not lightly overturn a judge's factual findings and
credibility resolutions, neither will we affirm such findings if there
is no evidence or dubious evidence to support them. See e.g., Krispy
Kreme Doughnut Corp. v. NLRB, 732 F.2d 1288, 1293 (6th Cir. 1984);
Midwest Stock Exchange, Inc. v. NLRB 635 F.2d 1255, 1263 (7th Cir.
1980).

~975
Accordingly, and for the foregoing reasons, we find that
the judge's decision is not supported by the substantial evidence
of record and we reverse.

                 Ford B. Ford, Chairman

                 Richard V. Backley, Commissioner

                 Joyce A. Doyle, Commissioner

                 L. Clair Nelson, Commissioner

~976
Commissioner Lastowka, dissenting:

 While performing his duties as a general inside laborer at

Consolidation Coal Company's Buchanan No. l Mine, Timothy Smith
suffered a fractured finger when his right hand was caught between
two timbers being set as roof support. Because Smith worked on the
midnight t.o 8:00 a.m. shift, the medical treatment necessitated by
his injury was administered during the period of his daily routine
normally devoted to sleep. As a result, Smith, with notice to Consol,
stayed home rather than reporting to work for his next scheduled
shift.

 My colleagues conclude that the administrative law judge

erred in upholding the Secretary of Labor's assertion that Consol's
failure to report Smith's absence as a lost workday resulting from
his injury violated the Secretary's accident and injury reporting
regulations. They conclude that the judge's finding that Smith's
absence occurred because of his injury is not supported by substantial
evidence. Instead, they conclude that a "direct cause and effect
relationship between [the] injury and [the] lost workday" was not
established by the Secretary. Slip op. at 7.

I must respectfully disagree. In my opinion, the Secretary's

interpretation of her regulation concerning the reporting of accidents
and injuries is reasonable and deserving of weight. Secretary on
behalf of Bushnell v. Cannelton Industries, 887 F.2d 1432 (D.C. Cir.,
1989). Furthermore, the judge's application of the law to the facts
not only is supported by substantial evidence, but also is eminently
sensible. Therefore, the judge's opinion should be affirmed.

 The dispute in this case is not over whether Smith suffered

an occupational injury; Consol duly reported Smith's injury to the
Secretary. Instead, the issue is whether in reporting the injury
Consol accurately represented that the injury had not resulted in
a lost workday. It seems to me that the material facts establish on
their face, that Smith's injury resulted in a lost workday, to wit:
while performing his job Smith's hand was caught between two timbers;
upon "observing that Smith's hand was swollen and the nail on the
right thumb was smashed.'" Smith's foreman sent him to the hospital
(slip op. at 2); Smith's injury was diagnosed as a "Fracture (R) Hand
5th Finger," Exh. JX-4); the hospital report recommended a return to
light work in one week and a return to regular work in three weeks
(id.); later that same day, Smith's hand was x-rayed confirming a
fracture of his little finger, his thumbnail was aspirated, his arm
placed in a cast from his hand to within three inches of the elbow,

and pain medication prescribed (10 FMSHRC at 561); since Smith
worked the midnight to 8:00 a.m., shift, this medical treatment was
administered during the time of day he normally slept; therefore,
following his injury Smith stayed home from work for one scheduled
shift by invoking his right to a day of personal leave. 10 FMSHRC
at 562. (Consol does not provide sick leave and Smith had not yet
earned any vacation time. id.)

 On these facts, I believe that it certainly was reasonable

for the Secretary to insist, and for the judge to find, that Consol
should have reported Smith's absence as a lost workday caused by his
accident. The majority concludes otherwise, however, and their
rationale must therefore be examined. As discussed below, I find
the grounds relied on for reversal unconvincing.

~977
The violation in this case turns on whether Item 30 on MSHA
Form 7000-1 was correctly completed. Item 30 provides: "Number of
Days Away From Work (if none, enter 0)." As previously indicated,
Consol represented that Smith was away from work "0 days despite his
absence on the day following his injury. My colleagues base their
rejection of the Secretary's and the judge's determinations that
Smith's one day absence should have been indicated in item 30 on
their interpretation of 30 C.F.R. 50.20-7(c), which sets forth
"criteria" for completing item 30. This section provides:

Item 30. Number of days away from work. Enter
the number of workdays, consecutive or not, on
which the miner would have worked but could not
because of occupational injury or occupational
illness. The number of days away from work shall
not include the day of injury or onset of illness
or any days on which the miner would not have worked
even though able to work. If an employee loses a
day from work solely because of the unavailability of
professional medical personnel for initial observation
or treatment and not as a direct consequence of the
injury or illness, the day should not be counted as a
day away from work.

(Emphasis added).

 Although the majority concludes that the emphasized portion

of these instructions proves fatal to the Secretary's charge of
violation, I submit that their conclusion stems from a too narrow
reading of the Secretary's reporting requirements and a shortsighted
view of the facts. Reduced to its essence, the majority's position
is that Smith's absence on the day following his injury was not due
to his injury, but rather to a lack of sleep, and that even given his
loss of sleep Smith still "could" have worked. In their view, Smith's
lack of sleep is an intervening event interrupting the "direct cause
and effect relationship between an injury and a lost workday" that is
the intended focus of item 30. Slip op. at 7. Thus, in their view,
the Secretary did not prove "that the lost workday [was] the direct
consequence of the injured miner's inability to work as the result of
the injury." Id.

On the basis of the record before us, I would find, as did

the Secretary and the judge, that Smith's absence was a direct
consequence of his injury. In fact, no reason or motivation for
his absence other than his injury is even remotely suggested or
alluded to in the record. My colleagues downplay and diminish

the impact of the disruption in Smith's daily routine caused by
his injury and medical treatment (see. e.g., slip op. at 8 n.9),
but this view proves too grudging. To make the point, l must ask:
if one of my colleagues were to suffer a similar injury on the job
and found it necessary to spend the night obtaining necessary medical
treatment, would they not be surprised to have their absence from work
on the following day challenged on the ground that it was not caused
by their work-related injury?

Insofar as Smith's statement that he "could have worked" is

concerned, I believe that the judge's assessment that this remark
"is of some significance, but is not conclusive" (10 FMSHRC at
563), is closer to the mark than is the majority's view that it
proves fatal to the Secretary's case. Smith himself

~978
explained that he wondered why he was being asked this question.
Smith deposition at 31; 10 FMSHRC at 562. Furthermore, in purely
literal terms, Smith's response is probably true; despite his injury
and lack of sleep, it was physically possible for him to report to
work. I doubt, however, that the "could not work" phraseology in
the Secretary's instructional criteria was meant to be read that an
injured miner must be totally incapacitated before any resulting "day
away from work" must be reported. Such a constrained reading would
mean that only the most debilitating injuries absolutely precluding a
miner's arrival at the job site would be reportable under item 30.
Nothing in the Secretary's regulations, instructions or Form 7000-1
suggests that such a narrow scope was intended, and the Secretary
disavows this reading of her requirements. Instead, a reasonable
reading must be given to this safety and health regulation and under
such a reading, and the facts before us, the view that Smith could
not work his next shift due to his injury certainly is plausible.
Secretary v. Cannelton Industries, supra, 867 F.2d at 1435, 1438.

My colleagues acknowledge that they are bound by the

substantial evidence standard of review. Slip op. at 9; 30 U.S.C.
$823(d)(2)(a)(ii)(1). They nevertheless proceed to substitute their
finding as to whether Smith "could" work for that of the judge by
claiming that "there is no evidence" to support the judge's finding
that Smith's lost workday resulted from the loss of sleep caused by
his injury. Slip op. at 9 (emphasis in original). Contrary to this
assessment, however, ample support for the judge's finding is found
in the extensive record evidence describing Smith's injury, the
nature of the medical treatment necessitated by the injury and the
major disruption in Smith's daily routine caused by the injury and
its treatment. Smith's statement that he could have worked, viewed
by the majority as "the entire evidence of record on this issue"
(Slip op. at 9), was correctly viewed by the judge as only part of
the record evidence bearing on the factual question before him.
Because the evidence relied on by the judge constitutes "such
relevant evidence as a reasonable mind might accept as adequate to
support [the Judge's] conclusion", the substantial evidence standard
imposed on us by the Mine Act requires affirmance of the judge's
finding. Consolidated Edison Co. v. NLRB, 805 U.S. 197, 229 (1938);
Chaney Creek Coal Corp. v. FMSHRC, 866 F.2d 1421, 1431 (D.C. Cir.
1989).

In the end, the soundness of the judge's conclusion is perhaps
most effectively demonstrated by setting forth his own words. As he
stated:
The facts in this case are clear and uncomplicated.

A miner received a significant injury to his hand at
work. He was given initial medical treatment and referred
for specialist treatment. As a result of the referral, he
was awake during nearly all of the period when he usually
slept. In fact, he slept for about one and a half hours.
Because of his lack of sleep, he decided to take the
following day off, although he testified that he could
have worked. The employee's opinion that he could have
worked is of some significance, but is not conclusive. In
fact he did not work, and his failure to work is related to
the injury because it is related to the medical treatment
which was necessary because of the injury. I conclude that
the employee's absence from work on August 26, 1986, resulted
from his occupational injury on August 25, 1986. ****

~979
Consol seems to argue that the day away from work resulted
from the unavailability of professional medical personnel for
initial observation and treatment and therefore should not be
recorded as a day away from work resulting from the occupational
injury. I do not so interpret the facts. Professional medical
personnel were available for initial observation and treatment.
Whether or not the referral to the orthopedist was part of the
initial observation and treatment, the lost workday did not result
from the unavailability of the orthopedist. The orthopedist was
available. The lost work day resulted from the time spent receiving
treatment and diagnosis, including necessary travel, all of which
resulted in a loss of sleep. Therefore, I conclude that the lost
workday resulted from the loss of sleep, which resulted from the
necessary medical care which resulted from the injury. It should
have been reported as a day away from work because of the injury.
The citation properly charged a violation of 30 C.F.R. $ 50.2O(a).

10 FMSHRC at 563.

I believe that this analysis by the judge reflects a

reasonable interpretation of the reporting requirement and arrives
at a conclusion supported by substantial evidence of record.
Accordingly, I dissent from the reversal of the administrative law
judge. l would affirm Judge Broderick's finding of a violation.

                James A. Lastowka, Commissioner

~980
Distribution

Dennis D. Clark, Esq.
Vicki Shteir Dunn, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203

Michael R. Peelish, Esq.
Consolidation Coal Company
1800 Washington Road
Pittsburgh, PA 15241

Administrative Law Judge James A. Broderick
Federal Mine Safety and Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, Virginia 22041