Secretary of Labor v. American Soda, LLC

Read the official release (fmshrc.gov)

Plain-English summary

A roof fall struck miner Delbert Hauser, knocked off his hard hat, caused a head wound and serious eye injury, and knocked him to the ground. American Soda did not notify MSHA within 15 minutes because Hauser remained conscious, walked out of the mine, and appeared coherent to coworkers with first-aid training. Chair Jordan and Commissioner Baker concluded that the size and nature of the roof fall, the direct head trauma, and the uncertainty about internal injury required prompt reporting and that management failed to investigate the totality of circumstances. Commissioners Althen and Rajkovich concluded that the miner's observed condition did not give a reasonable person cause to believe the injuries could be fatal. The two-to-two split left the ALJ's significant-and-substantial citation, moderate-negligence finding, and $6,159 penalty standing.

Decision snapshot

• Cited standard: 30 C.F.R. § 50.10(b)
• Outcome: The divided Commission left the reporting violation, S&S designation, and $6,159 penalty in place.
• Key point: With no Commission majority, the ALJ's finding that the roof-fall injury required notice to MSHA within 15 minutes stood as affirmed.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

1331 PENNSYLVANIA AVE.,
N.W., SUITE 520N

WASHINGTON, DC
20004-1710

SECRETARY
OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

                    v.

AMERICAN SODA,
LLC

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Docket
No. WEST 2020-0278

BEFORE:
Jordan, Chair; Althen, Rajkovich, and Baker, Commissioners

DECISION

BY:
Jordan, Chair, and Baker, Commissioner

This matter arises under the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et seq. (2018) (“Mine Act”). The
Department of Labor’s Mine Safety and Health Administration (“MSHA”) issued a
citation to American Soda, LLC, [1]
alleging that the operator failed to immediately contact MSHA, as required by
30 C.F.R. § 50.10(b), after a miner suffered an injury which had a reasonable
potential to cause death. American Soda contested the citation before a
Commission Administrative Law Judge. After a hearing on the merits, the Judge
found that the Secretary demonstrated that the operator violated the mandatory
safety standard. [2]
43 FMSHRC 477 (Nov. 2021) (ALJ). American Soda then filed a petition for
discretionary review, which the Commission granted.

The Commission vote is split on whether to affirm the
decision of the Judge. We, Chair Jordan and Commissioner Baker, write first
and vote to affirm the Judge’s decision; the separate opinions of our
colleagues follow. In the absence of a majority decision, the Judge’s decision
shall stand as if affirmed. See Pennsylvania Elec. Co. , 12
FMSHRC 1562, 1563 (Aug. 1990), aff’d on other grounds , 969 F.2d
1501 (3rd Cir. 1992).

I.

Factual and Procedural Background

A. Factual Summary

On
January 31, 2020, at approximately 11:05 a.m., a section of roof fell at
American Soda’s underground trona mine in Sweetwater County, Wyoming . Rock struck and injured miner Delbert Hauser.

Prior to the roof fall, Hauser had been operating a
bore miner. The bore miner’s shear pin became damaged during active mining operations.
Hauser backed the machine out from the cut. Hauser then gathered his tools and
attempted to make repairs at the front of the machine, in close proximity to
the recent cut and unbolted roof. Miner Shane Dodge came over to assist. As
they were working, a section of the unbolted roof collapsed, striking Hauser. [3] Tr. 259.

Hauser further testified that a large slab of rock
from the roof fell onto him, dislodged his hard hat, and drove him into the
ground. An additional smaller rock subsequently struck him directly on his
unprotected head. Hauser stated that the second rock “rang [his] bell pretty
good.” Tr. 128. The larger rock tore the clothes on his back. Tr. 129.
Hauser testified that immediately afterwards, he was unable to see out of his swollen
right eye and his left eye was full of blood and dirt. Tr. 129. Hauser could
feel blood weep from a gash on the back of his head. Tr. 133. Hauser believed
that his body was going into shock. Tr. 130. Hauser gathered himself and
moved to the front side of the bore miner. He testified that when one of his fellow
miners saw the extent of his injuries, he observed the co-worker vomit. Tr.
131.

Dodge testified that after the fall he saw Hauser
lying on the ground, without a hard hat. Tr. 209. Dodge testified that upon
getting up, Hauser appeared “dazed and confused,” had a gash on the back of his
head and kept on saying “I’m all right.” Tr. 199. Neil Mattinson, the
production foreman, and Wendalle Boyd, a crew member, were standing by the rear
of the bore miner when the roof fell. Mattinson called the hoistman and told
him that Hauser had been struck by a rock, and needed an ambulance. Tr.
259-60, 278-81. Although Dodge, Mattinson, and Boyd were in the area when the
roof fell, no one testified to seeing the roof fall or the size of the rocks
that hit Hauser.

Hauser’s fellow miners treated him on the scene with a
first aid kit, bandaging his head and providing an ice pack. Hauser reportedly
refused to be placed on a backboard or in a cervical collar. Hauser testified
that he has little memory of these events. Tr. 129-32. His fellow miners
testified that he appeared to be coherent. Mattinson and Dodge traveled in the
mantrip with Hauser to the hoist, a journey of 20 to 30 minutes. Hauser then
walked onto the hoist and rode another three to five minutes to the surface.

Shawn Marshall, the mine’s operations manager, was on
the surface when he was notified that Hauser had been injured in a rock fall underground.
Marshall did not ask about the size of the fall. He told Jamie McGillis, an
employee trained in first aid, that she should meet Hauser. McGillis spoke
with Hauser when he returned to the surface, but did not observe his head
injury as it was bandaged. Marshall observed Hauser walking on his own at the
surface and did not believe that he was going to “succumb to his injuries.”
Tr. 184.

Hauser was evacuated by ambulance to the local hospital
where medical personnel used three or four staples to close the wound on the
back of his head. Tr. 135, 314. A CT scan of Hauser’s head revealed that his
right eye orbital socket was shattered. Hauser later underwent eye surgery at
the University of Utah Hospital in Salt Lake City. Tr. 136-38.

On the day of the incident, between 11:10 a.m. and
11:30 a.m., Michael Crum, a health, safety, environment and quality manager, was
notified that Hauser was being transported out of the mine after suffering an
injury. Tr. 343. Crum received an update that Hauser had been struck by a
roof fall, and suffered a head laceration, but was conscious and able to walk. Tr.
305, 342.

Crum did not see or speak to Hauser before he left on
the ambulance to the local Rock Springs hospital. Tr. 307, 313-14. Instead, Crum
talked to Marshall, who stated that when he observed Hauser on the surface,
Hauser appeared coherent and walked himself to the ambulance. Tr. 307-08. Accordingly,
Crum decided that Hauser’s injuries did not have a reasonable potential to
cause death and therefore, did not report the event to MSHA. Tr. 308, 341-42.
Prior to his determination, Crum did not talk to the miners who were in the
vicinity of the roof fall when it occurred (Boyd, Dodge, or foreman
Mattinson). Tr. 346-47.

Marshall traveled to the hospital. Per Crum’s
instruction, Marshall asked an attending doctor whether Hauser’s injuries were
life threatening. According to Marshall, the doctor responded that the
injuries were not. Tr. 173, 317. Marshall informed Crum.

Back at the mine, Mattinson, along with Tyler Hanks,
the shift foreman, traveled underground to perform an investigation, including
measuring the area from which the rock fell. Hanks determined that it was
approximately five feet wide, by ten feet long, and one to three inches thick.
Mattinson testified that the rock that fell was mainly trona, which is very
dense and hard. After the investigation was complete, mining resumed. Had the
accident been reported to MSHA, the Mine Act would have required that the
operator preserve the scene for investigation.

On February 1, 2020, the next day, MSHA received an anonymous report that a roof fall at the
mine had injured a miner. Inspector Rodney Gust travelled to the mine to
investigate. Gust was unable to measure the material that fell because the
operator did not preserve the accident scene. However, based on the impression
in the roof, nine feet above the ground, it was obvious from where the material
originated. The resulting void was approximately five feet long, twelve and a
half feet wide, and one to three inches thick. Tr. 37, 67. Inspector Gust concluded
that approximately 800 to 900 pounds of material fell from the roof. He
determined that based on the information known to the operator immediately
after the accident, MSHA should have been called.

On February 4, 2020, Gust issued Citation No. 9475179
to the operator for an alleged violation of 30 C.F.R. § 50.10(b). Gust testified that
concussions and blunt force trauma to the head, neck and upper torso have a
reasonable potential to cause death.

Hauser testified at the hearing that he has continued
to suffer from a variety of disabling ailments including a constant migraine,
occasional nausea, short term memory loss, vision problems, neuropathy in his
fingers, dizziness, and balance issues. As a result of the injuries, Hauser testified
that he walks with a cane, is unable to watch TV for more than a short period
of time, drives less, and spends a significant amount of time sitting in the
dark. Tr. 138-39.

B. The Judge’s
Decision

On November 9, 2021, the Judge issued a decision affirming
the citation. The Judge found that Hauser was hit in the head and back by a
rock with enough force to knock him to the ground. No one at the mine saw the
roof fall or knew the exact size of the rock that hit Hauser in the head, but
the size of the void in the roof from which the material fell was substantial.
The rock knocked off Hauser’s hardhat and caused serious injuries to both the
back of his head and right eye. Mattinson, the crew foreman, became aware of
the injury directly after it occurred. Despite this information, MSHA was not
called on the day of the incident.

The Judge recognized that “getting hit on the head by
a heavy object can lead to an intracerebral hemorrhage, i.e. bleeding in
the brain” and that “[a]dverse symptoms of a brain hemorrhage will often not be
visible within 15 minutes of an accident.” 43 FMSHRC at 489-90.

The Judge found
that given the facts, a reasonable person, presented with a similar situation,
would have erred on the side of calling MSHA within 15 minutes . Id . at

489. The Judge noted that the “extremely short [15-minute] timeframe” requires
     a mine operator to make a determination “based on a very limited knowledge of
     the facts surrounding the injury and the nature of the accident.” Id.
     at 489.

II.

Disposition

        The

Mine Act requires that “[i]n the event of any accident occurring in any coal or
other mine, the operator shall notify [MSHA] . . . and shall take appropriate
measures to prevent the destruction of any evidence which would assist in
investigation of the cause or causes thereof.” 30 U.S.C. § 813(j).

In response to a series of multiple fatality mining accidents,
Congress passed the Mine Improvement and New Emergency Response Act of 2006
(the “MINER Act”), which included an update to this section. S. Rep. No.
109-365, at 1-2, 9. Congress added the specific requirement that mine
operators notify MSHA within 15 minutes of an accident. 30 U.S.C. § 813(j) (“within
15 minutes of the time at which the operator realizes that . . . an injury . .
.of an individual at the mine which has a reasonable potential to cause death,
has occurred”).

MSHA promulgated an emergency safety standard,
incorporating the 15-minute notification requirement at 30 C.F.R. § 50.10. Section
50.10(b) states, in pertinent part, that “[t]he operator shall immediately
contact MSHA at once without delay and within 15 minutes . . . once the
operator knows or should know that an accident has occurred involving . . . (b)
[a]n injury of an individual at the mine which has a reasonable potential to
cause death.”

        As

the Third Circuit recognized:

[I]t is plain that the notification requirement was
designed to serve the Mine Act’s unyielding purpose of protecting miners by
encouraging rapid notification, thereby allowing MSHA to effectively initiate
an emergency response and to ensure the preservation of evidence for use in
investigations. The notification requirement should be interpreted to
effectuate that purpose.

Consol
Pa. Coal Co., LLC v. FMSHRC , 941 F.3d 95, 106 (3rd Cir. 2019). In Consol ,
the Third Circuit stated that in determining whether an injury has the
reasonable possibility to cause death, a mine operator should be guided by
principles that favor MSHA notification. In accordance with that principle:

First, reasonable doubts must
be resolved in favor of notifying MSHA ; second, liability must be assessed
based on whether a reasonable person in the circumstances would view the
injuries as having a reasonable potential to cause death; third, the totality
of the circumstances must be considered; and fourth, the focus must be on the
information available around the time of the injury, so post-hoc medical
evidence is less probative.

Id .
at 103. In total, the notification requirement “must
be analyzed on an objective basis, asking whether a reasonable person in the
circumstances would view a miner’s injury as having a reasonable potential to
cause death.” Id. at 107.

The Commission has stated that given the need for
prompt notification, “the nature of the accident” is highly relevant in
determining whether an event is reportable. Signal Peak Energy, LLC , 37
FMSHRC 470, 475 (Mar. 2015) (citations omitted). The
nature of the accident includes the mechanism of the injury. Id. at
475-76.

The Commission reviews a Judge’s findings regarding
the violation in accordance with the substantial evidence standard. 30 U.S.C.
§ 823(d)(2)(A)(ii)(I) (the Commission is bound by the terms of the Mine Act to apply
the substantial evidence test when reviewing a Judge’s factual determinations).
Substantial evidence means “such relevant evidence as a reasonable mind
might accept as adequate to support [the Judge’s] conclusion.” Rochester
& Pittsburgh Coal Co. , 11 FMSHRC 2159, 2163 (Nov. 1989). Substantial
evidence may be met by “reasonable inferences drawn from indirect evidence.” Jim
Walter Resources, Inc. , 28 FMSHRC 983, 989 (Dec. 2006). Substantial
evidence means “more than a scintilla but less than a preponderance.” Pattison
Sand Co., LLC v. FMSHRC , 688 F.3d 507, 512 (8th Cir. 2012).

        As

we will demonstrate, the Judge’s finding that a reasonable person would have
concluded that, based on the totality of the circumstances and information
available at the time of injury, that Hauser’s injuries had a reasonable
potential to cause death, is supported by substantial evidence in the record.

It is undisputed that a large amount of
material from the roof fell. The area from which the fall occurred was at minimum
five feet wide, ten feet long, and one to three inches thick. Tr. 35-37; 208,
269, 291-92; Jt. Ex. 31. The roof was approximately nine feet high. Inspector
Gust estimated that based on his own measurements, approximately 800 to 900
pounds of rock was dislodged in the fall. Tr. 63. Foreman Mattinson testified
that that the rock that fell was mainly trona, which is “very dense . . . way
harder than coal.” Tr. 298-99. Mattinson heard the roof fall and assisted in
tending to Hauser’s resulting injuries directly thereafter.

Although it was unknown how much of this
roof material hit Hauser, the undisputed evidence demonstrates that Hauser was
struck with enough force to knock him to the ground, knock his hardhat off, and
to cause injuries to both sides of his head. Specifically, a rock cut open the
back of his head and his eye socket shattered. [4] Hauser
testified that first a large rock hit him, knocked off his hardhat and drove
him into the ground; subsequently a second smaller rock hit his unprotected
head. Tr. 127-28, 137. Dodge corroborated that the fall knocked off Hauser’s
hardhat. Tr. 127, 209. The wound on the back of Hauser’s head was deep enough
to require staples to close it. His eyes appeared bloodied and swollen. Mattinson immediately
went to get the first aid kit and then called to the surface to get Hauser an ambulance.
Tr. 259. Mattinson thought Hauser had a possible head and neck injury and
tried to convince him to get onto a backboard. [5]
Tr. 263. Taken together, these facts would cause a reasonable person to
conclude that Hauser was struck by a rock with considerable force directly in
the head. As the Judge stated, because no one knew the size of the rock that
hit Hauser in the head, a reasonable person should have resolved doubts on the
side of notification. [6]

It is well established that blunt force trauma to the
head can cause an injury with a reasonable potential for death. In fact, the preamble to the safety
standard at section 50.10 notes that the head injuries that result from roof
falls are the types of injuries that are known to cause a reasonable potential
for death. See Emergency Mine Evacuation, 71
Fed. Reg. 71,430, 71,434 (2006) ( “B ased on
MSHA experience and common medical knowledge, some types of ‘injuries which
have a reasonable potential to cause death’ include concussions . . . major
upper body blunt force trauma . . . [t]hese injuries can result from various
indicative events, including . . . roof instability”). As the Judge
stated, “getting hit on the head by a heavy object can lead to an intracerebral
hemorrhage, i.e. bleeding in the brain” and that “[a]dverse symptoms of
a brain hemorrhage will often not be visible within 15 minutes of an accident.” [7] , [8] 43
FMSHRC at 489-90.

Additionally, we note that the record evidence demonstrates
that the operator failed to consider the totality of the circumstances when it
determined that the accident was not reportable pursuant to section 50.10(b). Michael Crum testified
that the responsibility to call MSHA at American Soda lay with the safety group,
which included himself. [9]
Tr. 319, 337-38. Crum was notified that Hauser was being brought to the
surface after suffering an injury in a rock fall, but was conscious and
coherent. Tr. 305. Crum did not personally observe Hauser, but instead relied
on Marshall’s observations. Crum testified that Marshall informed him that
Hauser was talking, coherent and exited the mine under his own power. Tr. 307-08.
Accordingly, he did not believe that the injury was reportable. He further testified
that he waited to hear a report from Marshall from the emergency room doctor
before making a final determination. Tr. 353. Crum’s decision to wait beyond the
15-minute window to hear a doctor’s diagnosis from Marshall runs contrary to
the Commission’s requirements for the mine operator to make a determination
immediately, prior to a clinical evaluation, and to resolve reasonable doubts
at the time of the incident in favor of notification. [10]

Furthermore, Crum
testified that he did not consider the nature of the accident when
making his determination. Tr. 351. Crum testified that he did not talk to the
miners who were in the vicinity of the roof fall and treated Hauser’s injuries
at the scene. Tr. 346-47. Crum’s own testimony that he did not consider the
totality of the circumstances, including the mechanism of the injury, is
additional evidence supporting the Judge’s finding that the operator violated
the safety standard. [11] Had Crum
inquired about the nature of the accident, as is required by the mandatory
safety standard, he would have discovered that there was a void in the unbolted
roof measuring at least 5 feet by 10 feet . [12]

As the Judge
stated, the operator “should have known that a significant blow to the head
could reasonably be expected to be fatal even when the injured miner was not
displaying serious symptoms immediately following the accident.” [13] 43 FMSHRC
at 490.

III.

Conclusion

It is clear that the Judge’s relevant findings are
supported by substantial evidence, including his ultimate determination that a
reasonable person would have notified MSHA within 15 minutes in these
circumstances. In so finding, the Judge correctly applied Commission case law concerning
the safety standard at section 50.10(b). Accordingly, we vote to affirm his decision.

/s/ Mary Lu Jordan

Mary Lu Jordan, Chair

/s/ Timothy J. Baker

Timothy J. Baker, Commissioner

Commissioner
Althen:

        30

C.F.R. § 50.10(b) requires operators to notify the Mine Safety and Health
Administration (“MSHA”) within 15 minutes of the time the operator knows or
should know that an accident has occurred involving an injury of an individual
at the mine which has a reasonable potential to cause death.

        Delbert

Hauser was struck on the back, causing him to fall to the floor. A rock of
unknown size caused a laceration in his scalp. He also suffered an eye injury. [14] During the
period before the miner was transmitted from the mine to the hospital for
stitches to his head, he interacted directly with five other miners, all of
whom had first aid training, and one of whom was the first aid person on the
mine rescue team. Each of the miners treated the accident as serious and took
steps to make sure Hauser’s life had not been threatened. However, none of
them—not one—testified in a manner that supports a reasonable potential for death. [15]

Indeed, the miner from the mine rescue team who went to the
collar when she learned of the situation testified directly and with convincing
reasons that she did not think there was reasonable potential for death. As
shown below, Hauser’s fellow miners acted with dispatch to assure themselves
that Hauser was not facing a reasonable possibility of death.

I.

Testimony of Witnesses to Hauser’s
Condition

A. Shane Dodge—Hourly Underground
Production Employee

        Shane Dodge had received first

aid training. Tr. 196, 210. While working near Hauser, Dodge heard the roof
fall. The fall hit Hauser on the back, knocking him down, but Dodge saw Hauser
get up immediately after the fall. Tr. 199. Dodge testified that Hauser
looked slightly confused but kept saying he was all right. When Dodge saw a
cut on the back of Hauser’s head, he thought it was just a cut that probably
needed stitches. Tr. 200.

        After standing immediately,

Hauser stepped over a trim chain bar that was three feet high. Hauser took
this step over the chain bar under his own power with Dodge “just, kind of,
spotting him.” Tr. 201. Hauser then walked 200 feet or more under his own
power. Dodge and other miners (Wendalle Boyd and Neil Mattinson) asked him
questions to ensure he was all right. Hauser answered the questions
correctly. They offered Hauser a backboard, but he refused it. Tr. 202.
Hauser said, “I ain't getting on a f---ing backboard.” Id.

They put a bandage
on his head that immediately stopped any bleeding. Tr. 203. Hauser walked
himself into the cage for transportation to the surface. Dodge described the
injuries as “They were just, I mean, very – nothing too crazy – cuts.” Tr.

209. Testifying to the general diagnosis by the crew, Dodge said, “He was
     walking. He was talking. I mean, he was being stubborn just like he always
     is. Like, everything was normal as if he just, you know, just got mildly hurt,
     I guess.” Tr. 210.

B. Wendalle
Boyd—Shuttle Car Operator

        Wendalle Boyd was a shuttle

car operator who heard the rock fall. As he walked toward the area, he saw
Hauser. There was some blood on Hauser’s head, but Boyd referred to the cut as
a “scratch on his head.” Tr. 216. Boyd got a first aid kit. When he
returned, Hauser was walking by himself toward the cage. Bandaging the cut
stopped any bleeding from the cut.

        Boyd and other miners asked

Hauser questions as part of a concussion protocol. Hauser answered the
questions correctly. Tr. 217. As other miners were getting on the cage for
the surface, they continued to ask him questions. Boyd testified that there
was no degradation in Hauser’s condition and that he responded appropriately.
He sounded “fresh.” Tr. 219.

C. Neil Mattinson—Mine
Operations Forman

        Neil Mattinson,

who had first aid training, testified he was nearby when the roof fall
occurred. He heard Wendalle Boyd ask if everyone was okay, and they answered,
“Yes.” Tr. 259. When asked how Hauser seemed, Mattinson testified that he was
driving the mantrip and Hauser was fine. Tr. 262. He repeated that Hauser
seemed “fine.” Tr. 295.

        Mattinson

asked Hauser to let them place him on a backboard or to let them give him a
C-collar, but Hauser repeatedly refused. Mattinson asked Hauser questions that
Hauser answered correctly. They checked Hauser’s eyes, and Hauser had regular,
undilated pupils. Hauser was acting cranky which, according to Mattinson, was
normal for Hauser. Tr. 264.

        Mattinson

testified,

Basically, I felt
it's a first-aid injury. It's some staples. He’s got a cut on his head. His
eye’s a little swollen, nothing of significance. Everything seemed pretty
normal. He seemed normal. His color was good, didn’t look like he was in
shock or going into shock. He was talking to me the whole way out. That’s it.

Tr. 265.

        As other witnesses

testified, Mattinson said Hauser got out of the mantrip by himself and walked
into the cage to ride to the surface. Tr. 266. Under cross-examination, Mattinson
testified that only 3 seconds passed between the sound of the roof fall and him
seeing Hauser on his feet. Tr. 277. Mattinson told the hoistman that Hauser
would probably need a couple of stitches, and that Mattinson never saw anything
that would cause him to call the hoistman back. Tr. 265.

        Mattinson testified he

had called it a first-aid injury. Tr. 286-87. Asked to explain what he meant,
he testified,

And I’m the not
making light of the – it’s not a big deal. It’d be like your kid having a
crash on their bike, and they got a wound. And you clean it. You put some
wrap on it. And then if it’s deep enough, you’re going to take them to the
hospital to get some stitches.

Tr. 287.

        Mattinson, who testified he

was familiar with the conditions of shock, testified Hauser did not appear to
be going into shock. Mattinson explained that he formed that opinion of Hauser
by:

Just him talking
to me, answering my questions that I had. I was checking – I was looking at
the color of his skin. His breathing was normal. He didn’t have – he wasn’t,
like, in a panic. He seemed normal, and he could answer all the questions that
I was asking him, and he seemed aware of his surroundings.

Tr. 295.

Mattinson further
testified, “I was driving the man trip, and him and I were having
conversations, and he seemed perfectly fine. He was engaged in the
conversations. That’s one of the ways I was monitoring him on the way out.”
Tr. 295.

D. Shawn Marshall—Operations Manager

        Shawn

Marshall served on the mine rescue team for ten years. Tr. 156. He was in the
mine office when a safety representative informed him of the accident. He
received information that Hauser was walking onto the cage to exit the mine at
the surface. Tr. 159. Marshall went to the mine collar and saw Hauser walk
off the cage under his own power. Tr. 161. Marshall testified that Hauser
showed no sign of unsteadiness or needing any assistance. Id .

        When

asked on examination to describe his feelings about Hauser’s condition based on
his observations, Marshall testified:

Q. While you were talking to him, what was your
impression of his overall condition?

A. Good. Good. I mean, I observed the black eye,
the cut on his eye. He had a bandage on his head. It was white. Wasn’t no
signs of blood or anything. The eye wasn’t bleeding. He could talk. He was
standing upright. He wasn’t hunched over. He wasn’t, you know, exhibiting any
signs of internal damage or anything. So, I felt real good about him.

Tr. 162-63.

        Marshall

further testified that Dave Stephenson, the Mine Safety Representative, and
Jamie McGillis, a mine rescue team’s first aid person, were also at the collar
when Hauser arrived on the surface. Tr. 161-62. Hauser was walking on his
own. Hauser started to tell Marshall what had happened and to apologize for
it. Tr. 162.

        At

that point, Hauser walked to the ambulance and entered it himself, walking up a
ladder and sitting down. Marshall then called the site manager and told him
Hauser had headed to the hospital, probably for stitches.

        Then,

Marshall saw the General Mine Manager, Mike Crum, in the office. Crum had
already talked to Dave Stephenson. Marshall told Crum that Hauser would be all
right. Marshall went to the hospital, where nothing occurred to change his
mind about Hauser’s condition. In looking at the exhibit showing the
laceration on Hauser’s head, Marshall testified:

Q. On the second
photo for the back of his head, do you have any sense of how long that
laceration to his scalp is?

A. Roughly two
inches.

Q. Was it deep?

A. It didn't
appear to be. But, I mean, the picture says a lot. It’s not a big open, gaping
wound. It’s a cut to the scalp. I mean, there's not a lot of muscle or
anything there. It’s just skin, so.

Tr. 171.

         Marshall’s testimony is

replete with his observation that Hauser did not appear to be in a condition
that would indicate a danger to Hauser’s life.

        E.   Jamie

McGillis—Underground Utility Crew Member

         McGillis had worked for

thirty years at the mine. At the time of the incident, she worked on an
underground utility crew. McGillis was the first aid person on the mine rescue
team and had considerable ongoing training for that position. She was at the
curtain when Hauser arrived on the surface. She testified that she and Hauser
exchanged niceties. Then, McGillis went with Hauser to the ambulance. Tr.

226. Hauser was coherent and able to understand everything that was happening.
     Tr. 226-27. McGillis did not see any indication of an internal injury.

Responding to a
series of questions from counsel, she testified:

Q. Any sense of
what his respirations were?

A. He breathed
normally.

Q. And how about
capillary refill?

A. I believe the
EMT that was in the ambulance did the capillary refill. We put the oxygen –
oximeter on his finger.

Q. And did that
give a low result, or did that give a normal result?

A. It was normal.

Q. And was he able
to follow commands?

A. He followed
commands. He talked to us, was coherent, knew where he was at that time.

Tr. 243.

        Finally, McGillis

testified that while she was with Hauser, she did not think that his injuries
or symptoms had a reasonable potential to cause death. Tr. 245.

F. Michael
Crum—Health, Safety, Environment, and Quality Manager

        Due to

his position, Michael Crum had received first aid training. Tr. 303. He went
to the mine office for more information when he learned of the accident. Upon
reaching the office, he learned that Hauser was conscious and coherent. Tr.

305. [16]
     Crum went to the collar. However, Hauser had left before Cum got there.

Crum talked to
Shawn Marshall, who told Crum of his observations. Tr. 307-08. Crum relied
upon his conversations with another miner, Dave Stephenson, and Marshall, who
had talked with the other witnesses. Based upon those reports, including,
among other things, that Hauser was upright, talking, coherent, had walked from
the cage to the ambulance, and got in the ambulance by himself, Crum concluded
that they had not seen any symptoms indicating a reasonable potential for
death. It is appropriate to observe that Crum based his decision upon
firsthand information from Stephenson and Marshall, recapitulating all the
preceding facts. [17]

        In

discussing his decision regarding calling MSHA, Crum explained:

[that Hauser] was
walking . . . was coherent . . . never lost consciousness . . . had a
laceration to his head, had some scrapes on his back, got out, walked to the
Jeep. He was, really, kind of, directing his own care, according to the
miners that were there . He walked onto the cage, walked off the cage,
walked in – you know, got himself into the ambulance. At no time was anybody –
at that point, no one thought that his injuries were life-threatening,
including [the operator’s] . . . medical responder.

Tr. 332 (emphasis
added).

        On

cross-examination, MSHA’s attorney asked Crum to summarize why he did not think
he needed to make a 15-minute call. Crum responded:

The information we received from the hoistman from
underground that Del was up, he was moving, he was conscious, he was getting in
the Jeep, and they were bringing him out. There was nothing that was said that
was conveyed by Neil Mattinson, by the hoistman, by Jamie McGillis, by either
Shawn Marshall or Dave Stephenson that indicated that we had an injury that had
reasonable potential to cause death.

Tr. 342-43.

        MSHA’s attorney then elicited

testimony by asking if the next piece of information Crum received was a call
or a text from Shawn Marshall from the hospital saying that the doctor said
that Hauser’s injuries were not life-threatening. The attorney asked
specifically, “Is that the next piece of information?” Tr. 345-46. Crum
affirmed that he believed it was. The doctor confirmed that the injury was not
life-threatening.

II.

Disposition

For injury reporting violations, the Commission has an
established formula for determining whether an operator must inform MSHA of the
injury. Examining the totality of the circumstances, the Commission must
determine if a reasonable person would conclude that the injury had a
reasonable potential to result in death. If reports on the severity of an
accident indicate a reasonable potential for death, the operator should err on
the side of caution.

Regarding the scope of the probative evidence,
operators need not, and indeed cannot, perform an exhaustive accident
investigation or medical exam in 15 minutes but instead, are required to
attempt to assess the situation in good faith and without delay. See Consol
Coal Co. , 11 FMSHRC 1935, 1938 (Oct. 1989). Thus, the “totality of the
circumstances” encompasses only readily available information, such as any
observable indicators of trauma and, to a lesser extent, the nature of the
accident. Signal Peak , 37 FMSHRC 470, 476 (Mar. 2015), Consol
Pennsylvania Coal Co. , 40 FMSHRC 998, 1004 (Aug. 2018) (“ Of course,
the primary information relevant to the analysis is the nature of the injury
and the miner’s condition ”). The primacy of the miner’s condition is
vital in this case because the ALJ gave virtually no consideration to the
miner’s condition, as reported by a host of miners. Instead, the ALJ based his
decision solely on the absence of evidence over the size of a rock that caused
a superficial cut to Hauser’s head.

A. Totality of the
Circumstances

As
there were no first-hand witnesses to the instant when the fall of rock
occurred, the exact nature of the accident is unknown. However, combining the
testimony of the miners, the only fair summary of the facts is that some
portion of the roof struck Hauser in the back with enough force to cause him to
fall. A separate rock of unknown size caused a two-inch superficial cut on the
top of his head. Hauser immediately stood up on his own without any loss of
consciousness and stepped over a three-foot high barrier. He told another
miner that he was all right and walked by himself hundreds of feet to a cage
for the surface. During that time, miners quickly stopped any bleeding by
applying a bandage.

Counsel for the Secretary stated in her opening statement
that Hauser “brushed the rocks off of his body.” Tr. 5. Shane Dodge, the
first miner to see Hauser, was asked if he saw Hauser brush rocks off his
back. He testified, “Yeah, when he was getting up, there were, like, teeny
tiny rocks coming off of him, yeah, nothing too crazy.” Tr. 209.

Of course, the first question in investigating an
accident is: “How is the miner?” Here, multiple experienced miners with first
aid training and, cumulatively, dozens of years of mining experience, testified
that Hauser needed medical attention for a cut on his head but was not so hurt
as to be in any potential danger of death. His condition did not create a
concern of a reasonable potential for death.

 Hauser’s

color was good. Tr. 265. His pupils were normal. Tr. 264. His breathing and
oxygenation were fine. He talked coherently. Tr. 305. He adamantly refused
the offer of a backboard or any other assistance. Throughout the walk and the
ride to the surface, miners asked him questions to assure themselves of his
mental condition. Hauser answered the questions appropriately. At the
surface, the mine emergency first aid specialist asked him questions and saw
him step into an ambulance. She did not believe he was in danger of death. Tr.

234. No miner with whom he interacted testified that he/she believed there was
     a reasonable potential for death or that he/she had any fear for Hauser’s life
     at any point. [18]

The Secretary’s counsel chose to
bring out during cross-examination the treating doctor’s opinion that there was
not a reasonable potential for death. Tr. 345. That testimony, while
of minor probative value by itself, added to the overwhelming evidence that
Hauser’s condition did not create a reasonable possibility of death. The
doctor’s medical examination revealed by the Secretary did add to the quantum
of evidence that the experienced miners who helped Hauser and cumulatively
advised Crum were correct that the injury did not create a reasonable
possibility of death, and that Crum acted reasonably in accepting their
opinions. [19]

The cumulative testimony is that Hauser was conscious,
aware of his surroundings, carrying on normal conversations, able to answer
questions typically, walking and climbing steps by himself, had good color, did
not have memory problems, and was not nauseous or feeling sick. In short, none
of the reasonable miners, all with first aid training, had any concern that
Hauser had a reasonable potential for death. Michael Crum, the manager and responsible
official, decided not to call MSHA based on all this information regarding
Hauser’s physical condition. [20]
The critical question is whether Crum exercised the judgment of a reasonable
person when he decided not to call MSHA. He did. The evidence noted above and
immediately below demonstrate that the reports from the scene by a host of
experienced miners showed that there was no reasonable cause to believe
Hauser’s condition posed a reasonable potential for death.

B. Reasonable Potential to Cause Death

In this case, the views of many reasonable persons
weigh fully, indeed outcome determinatively, against a finding of a violation.
Five miners saw Hauser after the accident and were able to examine the nature
of his injuries and his general condition. No one claims that any miner acted
in bad faith or gave erroneous testimony. Moreover, it is indisputable that a
fact-finder could only conclude that the miners acted reasonably and with
dispatch. Each took careful note of Hauser’s situation and treated him
appropriately. From their testimony, it is beyond doubt that none of these
five reasonable persons viewed the injuries as having a reasonable potential to
cause death. [21]

These five reasonable and experienced miners
characterized the injuries as (1) “everything was normal as if he just, you
know, just got mildly hurt.” Tr. 210. (2) Hauser seemed “fresh.” Tr. 219.
(3) “Basically, I felt it’s a first-aid injury. It’s some staples . . . He
seemed normal. His color was good, didn’t look like he was in shock or going
into shock. He was talking to me the whole way out.” Tr. 265. (4) “He
wasn’t, you know, exhibiting any signs of internal damage or anything. So, I
felt real good about him.” Tr. 162-63. (5) “He breathed normally [his oxygen]
was normal [h]e followed commands [and] was coherent.” Tr. 244.

None of the five identified any indicia of an injury
that would lead a reasonable person to believe Hauser suffered a potentially
fatal injury. Our colleagues do not even meaningfully discuss the case from
the standpoint of Hauser’s condition. The testimony revealed that Hauser stood
immediately, stepped over a three-foot high barrier, spoke coherently (indeed
forcefully to Shane Dodge), had a cut that stopped bleeding with the
application of a bandage, walked by himself, answered questions quickly and
correctly, climbed steps into the transport, did not exhibit dizziness or
nausea, had good skin color, normal eye dilation, and a good oxygen level.

Chair Jordan and Commissioner Baker correctly state
that the notification requirement “must be analyzed
on an objective basis, asking whether a reasonable person in the circumstances
would view a miner’s injury as having a reasonable potential to cause death.” Slip
Op. at 5, citing Consol Pa. Coal Co., LLC v. FMSHRC , 941 F.3d 95, 107
(3rd Cir. 2019). They do not claim and cannot cite evidence to assert that any
experienced and trained miners witnessing Hauser’s condition were unreasonable,
partly or in the aggregate. The ALJ did not find that their testimony lacked
credibility. Most importantly, they are the miners who reported Hauser’s
condition to Crum. He based his decision not to call MSHA on their first-hand,
knowledgeable evaluations. Tr. 307. It was undoubtedly objectively reasonable
for Crum to rely upon the miners’ reports in making his decision.

Elsewhere, Chair Jordan and Commissioner Baker
erroneously assert that this opinion “reweighs” the evidence. Slip Op. at 7 n.6.
This opinion “recites” the evidence and finds that the direct eyewitness
testimony of multiple qualified witnesses as to Hauser’s actual condition
rebuts, as a matter of law, the ALJ’s conclusion that, because no one had found
in 15 minutes the specific piece of debris from the crumbled rocks at the scene
that caused a superficial and easily stitched cut on Hauser’s head, the operator
should have found a reasonable possibility of death. The ALJ’s view disregards
the unanimous opinion of every miner who saw Hauser that there was not
a reasonable possibility of death.

As the testimony
was uniform in assessing Hauser’s condition, it would be improper for the
Commission to craft uncertainty where none existed. Before rebuking the
operator for failing to err on the side of caution by reporting an injury, the
Commission must be able to identify specific fact-based reasons that should
have caused miners to fear for Hauser’s life. Uninformed fears by a Judge
hundreds of miles from the scene months after the accident and not taking into consideration
evidence of the miner’s condition is wholly inadequate. Reasons for doubt
arise from the facts of the case—witnesses’ testimony and other evidence. Such
doubts depend upon whether reasonable persons viewed the injuries as having a
reasonable potential to cause death and the totality of the circumstances. [22]

The ALJ issued an
insupportable decision without medical testimony, opinion, or support. Neither
the ALJ’s decision nor the opinion of Chair Jordan and Commissioner Baker
attempts to cite any medical expert or any medical evidence that every cut on a
scalp creates a potential for death. Only pebbles or small pieces of rock
remained at the scene. The ALJ concluded on his own without supportive
evidence that every cut from an impact to the head, superficial or not, created
a reasonable potential for death. He cannot and does not cite any authority
for that proposition. Thus, his conclusion had no evidentiary, scientific, or
medical basis. [23]

Lastly, although
the circumstances of the accident are less relevant to the analysis, I note
that the 15-minute time frame is brief and often does not leave any time for
miners to consider the full circumstances of the accident. Indeed, the
immediately identifiable facts of the accident do not establish that a
potentially fatal accident occurred. As recited above, witnesses within
seconds of the incident saw Hauser brush off small rocks or pebbles, stand, go
over a barrier, answer questions coherently, and obtain relief from a small cut
on his head by application of a bandage. Taken as a whole, the testimony
demonstrates that none of the witnesses who examined him and bandaged the
superficial cut on his head considered there was a reasonable potential for
death, and that Crum reasonably relied upon them.

III.

Conclusion

        The

evidence demonstrates that substantial evidence does not support a finding that
Hauser’s injury created a reasonable potential of death. No medical evidence
supports a finding that every cut creates a reasonable potential for death.
The overwhelming weight of the evidence demonstrates that substantial evidence
does not support a finding that Hauser faced a reasonable potential for death.

The finding of a violation should be reversed.

/s/ William I. Althen

William I. Althen,
Commissioner

Commissioner
Rajkovich:

Operators generally have ten working days to report
accidents, occupational injuries, or occupational illnesses to the Mine Safety
and Health Administration (“MSHA”). 30 C.F.R. §§ 50.20, 50.20-1.
However, if the operator knows or should know of an accident involving an
“injury . . . at the mine which has a reasonable potential to cause death,” the
operator must notify MSHA within 15 minutes. [24]
30
C.F.R. §
50.10(b). To determine whether this increased burden applies, the Commission
must ask whether, based on the totality of information available at the time of
the accident, a reasonable person would view the injuries as having a
reasonable potential to cause death. Consol Pa. Coal Co. LLC v. FMSHRC ,
941 F.3d 95, 103 (3rd Cir. 2019). There is no presumption that every head
injury is to be considered potentially fatal. With that in mind, a reasonable
person could not have considered the information available at the time and
concluded that Delbert Hauser faced a reasonable prospect of dying due to his
accident. Accordingly, substantial evidence does not support the Judge’s
finding of a violation.

The
totality of information available to the operator [25] in the
short-term aftermath of the accident was as follows:

· Mechanics of the
Accident :
During a roof fall, some amount of rock struck miner Delbert Hauser. The size
and weight of the rock that hit Hauser was (and still is) unknown. The only
information available regarding the force of the impact is that it was heavy
enough to dislodge Hauser’s hardhat and knock him to the ground, but light
enough that he could push off the fallen rock and stand up. [26] Tr. 127-28,
186, 209.

· Physical Injuries: Hauser had a
two-inch cut on the back of his head, and one eye was swollen and bleeding.
Tr. 129, 133, 199-200, 226-27, 233.

· Indications of
Trauma:
Hauser was a bit dazed immediately after the accident (Tr. 199) but was
conscious, coherent, able to talk, and able to walk to the ambulance
unassisted. Tr. 184, 226, 307.

As
discussed below, these facts are insufficient to reasonably suggest (or even
raise reasonable doubts regarding) a reasonable potential for death.

Some types of injuries have been recognized as posing
a reasonable potential for death, such as concussions, cases requiring CPR,
limb amputations, major upper body blunt force trauma, or extended
unconsciousness. Emergency Mine Evacuation, 71 Fed. Reg. 71,430, 71,434
(2006). While this list is non-exhaustive, it clearly indicates the standard
is meant to address injuries that pose a reasonable risk of brain trauma,
cardiac arrest, internal injury, or severe external blood loss. Here, it
cannot reasonably be argued that the visible injuries themselves (the head
laceration and swollen eye) were potentially fatal. Accordingly, the question
is whether the totality of circumstances reasonably suggested a hidden
potentially fatal condition such as brain trauma or internal injury.

The facts in this case are significantly
distinguishable from other cases in which the Commission has found an
immediately reportable injury based on the totality of circumstances. In Consol ,
a miner was conscious and had a strong pulse, but had been crushed between two
multi-ton pieces of equipment, was in severe pain, could not move or feel his
legs, and had a distended stomach. 941 F.3d at 114. In Signal Peak Energy
LLC , a miner had no obvious signs of concussion but had been propelled
50-80 feet, had difficulty moving and breathing, and had a significant back
protrusion. 37 FMSHRC 470, 475 (Mar. 2015). In Cougar Coal Co. , a
miner was conscious and alert but had fallen 18 feet, hit his head on a power
center on the way down, and had no pulse when he was first found. 25 FMSHRC
513, 520 (Sept. 2003). In each case, circumstantial facts regarding the
mechanics of the injury and the miners’ physical symptoms reasonably suggested
internal bleeding, spinal injury, brain injury, and/or cardiac arrest.

Here, in contrast, a miner was conscious and alert,
had been hit in the head by a rock of unknown weight (heavy enough to knock him
down but not keep him down), and had a two-inch laceration on his head and a
swollen and bloody eye. While the accident was clearly painful and potentially
serious, none of those facts, taken together or in concert, reasonably suggest
internal bleeding, brain injury or other potentially fatal conditions. [27]

Chair Jordan and Commissioner Baker emphasize the
importance of the mechanism of injury. Slip Op. at 5, citing Signal Peak ,
37 FMSHRC at 475. It is appropriate to consider the nature of the accident as
part of the totality of circumstances, and known facts regarding the mechanism
of injury can carry great weight in some instances. However, this is a very
different case from Signal Peak , in which the operator was aware that
the miner had been thrown 50-80 feet. 37 FMSHRC at 475 n.10. Here, the
available information regarding the mechanism of injury did not reasonably imply
a reasonable potential for death, for the simple reason that no useful
information regarding the mechanism of injury was available .

As the Judge conceded, all the operator had were
“known unknowns” (43 FMSHRC at 489)—Hauser had been struck with some amount of
rock, but there was no way to determine from the physical evidence of the rock
fall how much of the rock hit him, i.e. the force of the impact. [28] All the
operator could know was that Hauser could have been struck with
considerable force, and that is true of every unobserved impact injury.
Section 50.10 is analyzed under a reasonable person standard. Consol ,
941 F.3d at 107. A reasonable person would not assume every unobserved impact
injury carries a reasonable potential to cause death. [29] The lack of
information regarding the mechanism of injury does not weigh in favor of an
immediately reportable accident in this case.

Chair Jordan and Commissioner Baker also emphasize
the general dangers of head trauma, agreeing with the Judge’s statement that “a
significant blow to the head could reasonably be expected to be fatal even when
the injured miner was not displaying serious symptoms immediately following the
accident.” Slip Op. at 9, citing 43 FMSHRC at 490. Of course, serious blows
to the head can pose very real dangers. However, the question is not whether
serious blows to the head can be fatal, but whether this blow to the
head was serious enough to be potentially fatal.

Consistent with the framework in Consol , 941
F.3d at 103, whether a particular blow to the head was serious enough to
reasonably pose a risk of death must be determined based on the totality of
circumstances. Looking at all the information available to the operator at the
time of the accident, there must be some fact(s) to reasonably suggest a
potentially fatal condition. These may be physical symptoms such as loss of
coherence, or information regarding the mechanics of the accident such as the
weight or distance involved. See, e.g., Consol , 941 F.3d at 114
(miner crushed between multi-ton equipment); Signal Peak , 37 FMSHRC at
475 (miner propelled 50-80 feet).

Here, as discussed above, the mechanics of the injury
provided no useful information regarding the force of the impact that struck
Hauser. See Slip Op. at 23, 23 n.5, 21 n.3 supra . As for physical
symptoms, Hauser was conscious and alert and appeared to have suffered no
effects aside from the two-inch cut, the swollen and bloody eye, and having
been temporarily knocked down. Aside from the basic fact that Hauser was hit
in the head, there are no circumstances that would suggest brain trauma or
internal injury to a reasonable person. Nonetheless, based on those same
facts, my colleagues conclude that the impact was “considerable” enough to
reasonably result in death. [30]
Slip Op. at 7.

This comes dangerously close to a holding that any
blow to the head can reasonably result in death, and therefore any blow to the
head is immediately reportable, regardless of any (lack of) evidence regarding
the impact of the blow. In other words, blows to the head would be per se immediately
reportable accidents. The Secretary does not propose, and we should not adopt,
such an approach. Where (as here) there is no useful information regarding the
mechanics of the accident beyond the fact that the miner was struck in the
head, and none of the physical repercussions of the accident suggest an injury
with a reasonable potential to cause death, it is only reasonable to expect the
injury to be fatal if every blow to the head can reasonably be expected
to be fatal. Common sense tells us this is not so.

        There

is no question that Hauser has suffered an unfortunate injury with long-term
ramifications. However, Section 50.10(b) requires immediate reporting where,
based on the totality of information available at the time, a reasonable person
would believe there is a reasonable potential for death. That standard is not
met here. The information available to the operator was that a miner had been
hit in the head with some amount of rock sufficient to temporarily knock him
down, cause a two-inch cut on his head and damage his eye, but not cause him to
lose consciousness or become disoriented. No reasonable person would conclude,
based on that information, that Hauser had a reasonable prospect of dying from
his injuries.

Accordingly, I would overturn the Judge’s finding of a
violation.

/s/ Marco M. Rajkovich,
Jr.

Marco M. Rajkovich, Jr.,
Commissioner

Distribution:

Brian
R. Hendrix, Esq.

Owen
Davis, Esq.

Donna
Vetrano Pryor, Esq.

Husch
Blackwell LLP

1801
Wewatta St. Suite 1000

Denver,
CO 80202

[email protected]

[email protected]

[email protected]

Cheryl
C. Blair-Kijewski, Esq.

Office
of the Solicitor

U.S.
Department of Labor

Division
of Mine Safety and Health

201
12 th Street South, Suite 401

Arlington,
VA 22202

[email protected]

Emily
Toler Scott, Esq.

Counsel
for Appellate Litigation

Office
of the Solicitor

U.S.
Department of Labor

Division
of Mine Safety and Health

201
12 th Street South, Suite 401

Arlington,
VA 22202

[email protected]

April
Nelson, Esq.

Associate
Solicitor

Office
of the Solicitor

U.S.
Department of Labor

Division
of Mine Safety and Health

201
12 th Street South, Suite 401

Arlington,
VA 22202

[email protected]

Melanie
Garris

Civil
Penalty Compliance Division Chief

U.S.
Department of Labor

Office
of Assessments

Mine
Safety and Health Administration

201
12 th Street South, Suite 401

Arlington,
VA 22202

[email protected]

Chief
Administrative Law Judge Glynn F. Voisin

Federal
Mine Safety & Health Review Commission

Office of the Chief Administrative Law
Judge

1331
Pennsylvania Avenue, NW, Suite 520 N

Washington,
DC 20004-1710

[email protected]

Administrative
Law Judge Richard Manning

Federal
Mine Safety and Health Review Commission

Office
of the Chief Administrative Law Judge

721
19 th St. Suite 443

Denver,
CO 80202-2536

[email protected]

[1] At the time the
citation was issued and during the proceedings before the Judge, American Soda was
known as Solvay Chemicals, Inc.

[2] The Judge also
affirmed the citation’s significant and substantial designation and found that
the violation was the result of a moderate degree of negligence. He assessed a
$6,159 civil penalty. The “significant and substantial” terminology is taken
from section 104(d)(1) of the Act, which distinguishes as more serious any
violation that “could significantly and substantially contribute to the cause
and effect of a . . . mine safety or health hazard.” 30 U.S.C. § 814(d)(1).

[3] MSHA Inspector Rodney
Gust testified that based on the results of his accident investigation, he
believed that Hauser was standing under unsupported roof at the time of the
roof fall. Tr. 42-45.

[4] The Judge found
that Hauser “hit the floor hard with his face.” 43 FMSHRC at 489. American Soda
argues that the Judge’s finding is not supported by the evidence. We disagree.
Hauser testified that he landed “face-down.” Tr. 137. Furthermore, as a result
of the fall, Hauser’s eyes became swollen shut and obstructed by blood and
dirt.

[5] Although Mattinson
testified that Hauser “appeared fine to me,” he acknowledged that he was unable
to see the extent of Hauser’s injuries after they were bandaged. Tr. 262.

[6] In his separate opinion,
Commissioner Althen reweighs the evidence de novo instead of considering
if substantial evidence supports the Judge’s decision, as is required of the
Commission under the Mine Act. See 30 U.S.C. § 823(d)(2)(A)(ii)(I) (the
Commission is bound by statute to review a Judge’s decision under the
substantial evidence standard); see also Secretary of Labor v. Keystone Coal
Mining Corp. , 151 F.3d 1096, 1104 (D.C. Cir. 1998) and Eastern
Associated Coal Corp. , 13 FMSHRC 178, 185 (Feb. 1991). Commissioner Althen
then independently concludes that the weight of the evidence does not support a
finding that Hauser faced a reasonable potential for death. Slip Op. at 12. Because
Commissioner Althen uses an incorrect standard of review, his conclusion is
defective. See Northshore Mining Co. v. Sec’y of Labor , 46 F.4th
718, 727 (8th Cir. 2022) (“we may not reverse merely because substantial
evidence may support an opposite conclusion”). Furthermore, substantively,
Commissioner Althen’s central claim – that information directly from miners on
the scene of the accident informed Crum’s decision-making – was contradicted by
Crum himself. Tr. 346-47 (Q: “Did you make any effort to go and talk to anybody
who’d been in the vicinity of the accident when it happened on the day of the
accident in order to determine exactly what had gone on and how bad the
injuries might be?” A: “No”).

[7] The lingering
effects of the head trauma that Hauser continues to suffer are illustrative of
the severity of unobservable injuries that often accompany such events. However,
as the Judge correctly recognized, Hauser’s present condition does not
determine whether the operator should have called MSHA within the 15-minute
reporting window after the accident. Id . at 488 (“the most critical [facts]
to my analysis are that no one saw the roof fall, no one knew the size of the
rock that struck Hauser’s head, and that Hauser suffered a severe blow to the
head”).

[8] Section 50.10(b)
does not require the Secretary to prove as a matter of medical fact that the
injury suffered had a reasonable potential to cause death. Consol Pa. Coal
Co. , 40 FMSHRC 998, 1004 (Aug. 2018).

[9] In Signal
Peak, 37 FMSHRC at 476, the Commission stated
that “[o]nce
a person with sufficient authority to call learns of an event injuring a miner,
the clock begins to run on the period for evaluation of . . . a reasonable
potential to cause death.”

[10] As the Third
Circuit held, “[t]he focus must be on the facts
available at the time of injury, and post-hoc medical evidence can, at best,
serve in the attenuated role of raising an inference about what the mine
operator perceived, including the injury’s apparent severity.” Consol , 941
F.3d at 111. Similarly, w e have found the
relevant evidence to consist of “the evidence available at the scene of the
accident, at the time of the accident, and immediately following the accident.”
Consol , 40 FMSHRC at 1003 . Therefore, we have held that
the operator’s decision to notify MSHA under section 50.10 cannot be based upon
“clinical or hyper-technical opinions as to a miner’s chance of survival.” Cougar
Coal, 25 FMSHRC 513, 521 (Sept. 2003). Moreover, we have recognized that
a doctor’s diagnosis “will likely not materialize
until the time to make a decision to notify MSHA has already passed.” Consol ,
40 FMSHRC at 1003.

[11] In his separate
opinion, Commissioner Rajkovich expressed concern that the ALJ’s decision
“comes dangerously close to a holding that any blow to the head can reasonably
result in death.” Slip Op. at 24. However, the totality of the circumstances
set forth above include the undisputed facts regarding the size and nature of
the material that fell on Hauser, the impact the fall had on Hauser’s body, and
other relevant facts.

[12] Contrary to the
separate opinion of Commissioner Rajkovich, the nature of the accident would
have alerted Crum to the potential gravity of Hauser’s injuries had Crum
bothered to investigate. For instance, there was a large void in the unbolted
roof; at the time of the fall Hauser was located either under unsupported roof
or under the last roof bolt (43 FMSHRC at 478 n.5) and the material that fell
from the roof was mainly trona (very dense, harder than coal). See Slip Op.
at 23 n.5, 24 (Commissioner Rajkovich writing that “there is no useful
information regarding the mechanics of the accident beyond the fact that the
miner was struck in the head”). The fact that the falling material broke into
smaller pieces upon impact (43 FMSHRC at 483) making it impossible to establish
exactly how much struck Hauser does not relieve the operator of its obligation
to consider available information regarding the nature of the accident.

[13] In Cougar Coal ,
25 FMSHRC 513, 520 (Sept. 2003), the Commission held that “[w]e are not
persuaded by [the operator’s] assertions . . . that because [the injured miner]
was conscious and alert . . . [the operator] could reasonably surmise that [the
miner’s] injuries lacked the potential to cause death.” In Consol ,
40 FMSHRC at 1006, the Commission emphasized the importance of
internal injuries, holding that a limited assessment at the mine which relied
on the miner being conscious and alert would not be sufficient to determine the
extent of internal injuries to a miner.

[14] Chair Jordan and
Commissioner Baker repeatedly refer to the eye injury suffered by Hauser. However,
during the operative 15-minutes, it only appeared that Hauser had a bloody eye,
which cannot be sufficient indicia of injury with a reasonable potential to
cause death. To the extent post 15-minute medical evidence is relevant in this
analysis, the only relevant evidence is that the doctor (at the hospital to
which Hauser was taken for stitches) validated the operator’s assessment that
there was not a reasonable potential for death. The doctor told an operator
witness that Hauser’s injuries were not life-threatening. Tr. 173.

[15] The MSHA
Inspector who issued the citation, Rodney Gust, never spoke with Hauser. Tr.
63.

[16] Crum found out
that Hauser had to wait two hours at the hospital for treatment. Crum
instructed Marshall to follow-up at the emergency room where they went for
stitching. Marshall did so and was told the injury was not life threatening. Tr.
314-15.

[17] It is unfair for
Chair Jordan and Commissioner Baker to attempt to use Crum’s desire to be kept
up to date on Hauser as a basis for not paying attention to the overwhelming
evidence regarding a reasonable possibility of death. Such a request is the
action of a responsible and thoughtful manager desiring to be assured
continually of an employee’s status and welfare. It speaks well of Crum and
does nothing to support their erroneous view.

[18] In some cases,
observed facts of an accident may give context to the injury and give rise to a
reasonable possibility for death. For example, in Consol Pa. Coal Co., LLC
v. FMSHRC , 941 F.3d 95 (3rd Cir. 2019), a multi-ton piece of equipment
rolled into another stationary multi-ton piece of equipment crushing a miner’s
abdomen between them. Fellow miners had to dislodge the injured miner from
between the large pieces of equipment. On the scene, the miner lost the ability
to move his legs and was showing signs of bleeding in the abdominal cavity. While
it was not known with medical certainty that this injury had the reasonable
potential for death, the condition of the miner—in the context of knowledge
that the miner was crushed between large pieces of equipment—was sufficient to
trigger the reporting requirement.

In this case, nobody witnessed the precise
moment of Hauser falling to the floor. However, virtually instantly thereafter,
witnesses saw Hauser brushing the small pieces of rock off his back, immediately
standing up, and stepping over equipment. He had a bloody eye and a small
bleeding cut on his head that immediately stopped bleeding upon application of
a bandage. None of the miners that treated him testified to a lump or bump of
any kind at any place on his body or on his head.

[19] Chair Jordan and
Commissioner Baker object to any reference to the doctor’s opinion even though
the Secretary brought out this evidence. Elsewhere, however, they mention that
although no one asserted the eye injury was reasonably likely to cause death,
it eventually required surgery. Slip Op. at 3. They object to relevant evidence
going to the potential for death but rely upon later-learned evidence of a
non-life-threatening injury.

[20] Recapitulating
Crum’s testimony, he testified, “There was nothing that was said that was
conveyed by Neil Mattinson, by the hoistman, by Jamie McGillis, by either Shawn
Marshall or Dave Stephenson that indicated that we had an injury that had
reasonable potential to cause death.” Tr. 342-43.

[21] The ultimate question is whether Crum acted reasonably in
deciding that the event did not require a call to MSHA to report a reasonable
potential for death. The reports of these miners and other managers were the
totality of information available to him. This information synthesized,
distilled, and reported to him demonstrate that Crum’s decision was reasonable.

[22] It would be
foolish to submit that “reasonable doubt” simply adds an additional round of
potentiality to the analysis meaning the Mine Act would provide for reporting
if there were “a reasonable potential of a reasonable potential for death.” Reasonable
potential must mean witness testimony or other evidence that demonstrates
observations or occurrences that may have led a reasonable person to think that
there was a reasonable potential for death.

[23] Obviously, the
absence of medical evidence that every cut creates a potential for death does
not mean that such injuries should be shrugged off or treated as matters of no
concern. The proper course of action is exactly what was done by the miners in
this case. The injured miner must be immediately assisted and evaluated. The
miner must be treated and transmitted to a facility for attention to cuts or
other injuries. However, it is contrary to the Mine Act to fabricate a reasonable
potential for death where the evidence demonstrates such potential did not
exist. All the evidence that was discovered and known in this case compel
against finding a duty to call MSHA.

[24] By its plain
language, this increased reporting burden applies to accidents which have a reasonable
prospect of killing the injured miner , not just a reasonable potential for
serious injury or a remote possibility of death.

[25] Here, Michael Crum,
manager of health, safety, environment and quality, was the person responsible
for deciding whether MSHA needed to be contacted immediately. Chair Jordan and
Commissioner Baker take issue with Crum’s decision-making process, specifically
his reliance on others’ observations and his failure to consider the nature of
the accident. Slip Op. at 8-9. Five witnesses testified that they observed and
treated Hauser’s injuries, and confirmed he had a 2-inch laceration to his
scalp and bruising around his right eye, but he was coherent and able to walk
under his own power. Tr. 160-62, 199-200, 202-04, 210, 218, 232-34, 263-67. It
was not unreasonable for Crum to rely on multiple consistent reports, given the
need for a prompt decision. Regardless, any
investigative failures on Crum’s part are harmless in this instance. Based on
the testimony of those who did personally observe Hauser, the field of
available information simply did not suggest a reasonable potential for death. Nothing
in the record suggests Crum could have gained additional information beyond
these listed facts that would have changed his determination.

[26] The total
amount of fallen rock was subsequently estimated at 800 to 900 pounds, but
no one saw the rock strike Hauser. Tr. 41, 207. As Hauser was able to stand up
again, we can rationally assume he was not struck with the entire
weight. Chair Jordan and Commissioner Baker note that section 50.10 is partly
intended to ensure the preservation of evidence. Slip Op. at 4. In this
instance, however, even if the fallen rock had been left on the ground, it is
hard to imagine how observing the fallen material could have assisted in
determining which portion struck Hauser.

[27] Chair Jordan and
Commissioner Baker note that a miner being conscious and alert, in and of
itself, is insufficient to conclude that there was no reasonable potential for
death. Slip Op. at 9 n.13, citing Cougar Coal Co. , 25 FMSHRC 513,
520 (Sept. 2003); Consol Pa. Coal Co. LLC , 40 FMSHRC 998, 1006 (Aug.
2018). That is true but inapposite. A miner’s alertness may not conclusively
establish that (s)he was not in fatal danger, but it is still part of the
totality of circumstances and may be considered. (After all, if a miner was not
conscious and alert, that would certainly be considered evidence of a
concussion). In the cited cases, the fact that the miner was alert was
insufficient to overcome numerous indicators of potentially fatal injury. Here,
there are no indicators of potentially fatal injury to overcome.

[28] The inspector
subsequently determined the size and weight of the entire rock fall. However,
this is not useful information regarding the mechanics of the accident
because (1) it was not available at the time and (2) Hauser was not struck by
the entire rock fall. Useful information in this context would be the size and
weight of the portion of the rock fall that actually struck Hauser, i.e.,
the force of the impact. This was not available. It may sometimes be possible
to infer the force of an impact from other facts, such as the miners’ injuries.
Here, however, no other available information supports an inference of
sufficiently considerable force to create a reasonable potential for death. See
p. 24, infra .

[29] Chair Jordan and
Commissioner Baker cite the proposition that reasonable doubts should be
resolved in favor of immediate notification. Consol Pa. Coal Co. LLC v.
FMSHRC 941 F.3d 95, 103 (3rd Cir. 2019). I would emphasize that doubts must
be reasonable , and doubts without at least some basis in fact are
inherently un reasonable. The requirement to resolve reasonable doubts in
favor of notification does not require operators to resolve all unknowns
in favor of notification. Here, there are no facts regarding the mechanism of
injury from which reasonable doubt might arise. It is not reasonable to be told
“someone was hit in the head with a rock, I don’t know how hard” and be
concerned that person might die.

[30] Rather than
referring to Hauser’s eye as swollen and bloody, the opinion of Chair Jordan
and Commissioner Baker specifically notes that his eye socket was shattered. Slip
Op. at 6. However, that information was not available until after Hauser had
been medically evaluated. Post-hoc medical evidence regarding the seriousness
of Hauser’s eye injury—which still carried no risk of fatality – carries
little weight, if any. Consol , 941 F.3d at 111.