Energy West Mining Company

Plain-English summary

Energy West Mining contested a citation alleging that it failed to report an injury at its Deer Creek Mine. An employee strained his neck when his personal car stalled and its brakes failed on mine property while he was driving to work, and he missed two workdays. The judge held that the injury was an occupational injury that had to be reported under the Mine Act regulations, even though it was not caused by mining work. The contest was denied, Citation No. 3413924 was affirmed, and the proceeding was dismissed.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 50.20, 50.2(e), and 50.20-3
• Outcome: The contest was denied, Citation No. 3413924 was affirmed, and the proceeding was dismissed.
• Key point: An injury to a miner occurring at a mine and causing a specified serious consequence had to be reported even without a causal connection to the miner's work.

Full text (FMSHRC public release)

CCASE:
ENERGY WEST MINING v. SOL (MSHA)
DDATE:
19910722
TTEXT:

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           Federal Mine Safety and Health Review Commission
                  Office of Administrative Law Judges
                        The Federal Building
                    Room 280, 1244 Speer Boulevard
                           Denver, CO 80204

ENERGY WEST MINING COMPANY, CONTEST PROCEEDING
CONTESTANT
v. Docket No. WEST 91-83-R
Citation No. 3413924; 11/1/90
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH Deer Creek Mine
ADMINISTRATION (MSHA),
RESPONDENT Mine I.D. 42-00121

                               DECISION

Before: Judge Lasher

 This matter arose upon the filing of a Notice of Contest on

November 13, 1990, pursuant to Section 105(d) of the Federal Mine
Safety and Health Act of 1977 (the "Act") wherein Contestant
seeks review of Citation No. 3413924 charging a violation of 30
C.F.R. 50.20 which was issued by MSHA Inspector Robert L.
Huggins at Contestant's Deer Creek Mine on November 1, 1990, and
which in pertinent part alleges as follows:

      A [sic] accident occurred to Donald Hammond on 10-3-90
      and a 7000-1 report form was not submitted to the MSHA
      Health and Safety Analysis Center in Denver, Colorado.
      Mr. Hammond was involved in an automobile accident that
      occurred on mine property and Mr. Hammond failed to
      report to his next shift of work. Mr. Hammond returned
      to work on 10-8-90.

 By agreement, the parties have submitted this matter for

decision on the basis of a stipulation of fact (with exhibits
attached) and briefs.

Stipulated Facts

 1. The Deer Creek Mine is owned by Contestant Energy West

Mining Company ("Energy West").

 2. The Deer Creek Mine is subject to the jurisdiction of the

Federal Mine Safety and Health Act of 1977.

 3. The presiding Administrative Law Judge has jurisdiction

over this proceeding pursuant to 105 of the Act.

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4. Citation No. 3413924 (Joint Ex. 1) was issued on Novem-
ber 1, 1990, by Inspector Robert L. Huggins, alleging that Energy
West violated 30 C.F.R. 50.20 by failing to report an injury
sustained by employee Donald Hammond in an automobile accident on
mine property on Wednesday, October 3, 1990.

 5. The subject Citation and termination were properly served

by a duly authorized representative of the Secretary of Labor
upon an agent of Energy West on the date, time, and place stated
therein, and may be admitted into evidence for purposes of
establishing their issuance without admitting the truthfulness or
relevance of any statement therein.

 6. At the time of the accident, Mr. Hammond was driving his

own personal car on his way to work. He was injured when, after
passing through the gate onto company property and driving uphill
towards the parking lot, the engine of his car stalled and his
brakes failed. The car rolled backwards down the road
approximately 150 feet (see Joint Exs. 3, 4) and turned on its
side into a drainage ditch on the side of the road (see Joint
Exs. 5, 6).

 7. The accident occurred at 7:30 a.m. as Mr. Hammond was on

his way to report for his 8 a.m. shift at the time. Mr. Hammond
sustained a strained neck.

 8. After the accident, Mr. Hammond did not report to the 8

a.m. shift on Wednesday, October 3, 1990. He returned to work on
Monday, October 8, 1990.

 9. At the time of the accident and at all times relevant to

the subject Citation, the road was paved, in good repair with
guard rails on one side and a hillside on the other, and in
substantially the same condition as the publicly maintained road
leading to the entrance of the company property.

 10. The accident occurred in daylight during good weather

conditions and clear visibility.

 11. The condition of the road was not the cause of the

accident.

 12. Inspector Huggins was present at the Deer Creek Mine on

the day of the accident and visited the accident site. He asked
Deer Creek Safety Engineer Kevin Tuttle whether Energy West
planned to report the injury to the Mine Safety and Health
Administration. In response, Mr. Tuttle stated his belief that
the injury was not reportable, because it occurred while Mr.
Hammond was on his way to work, not while he was on the job, and

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involved Mr. Hammond's personally owned vehicle. Inspector
Huggins informed Mr. Tuttle that he would check to see whether
MSHA thought the injury was reportable.

 13. Shortly thereafter, Inspector Huggins informed Mr.

Tuttle that the injury was reportable. On November 1, 1990,
Inspector Huggins issued the subject Citation when no accident
report was forthcoming. To abate the alleged violation, Mr.
Tuttle then completed MSHA Form 7000-1 (Joint Ex. 2) on November
1, 1990, and mailed it to the MSHA Health and Safety Analysis
Center, and Inspector Huggins terminated the Citation.

Exhibits

 As part of their stipulation, the parties submitted the

following exhibits:

   Exhibit                      Description

       1        Reproduced copy of Citation No. 3413924,
                issued 11-1-90

       2        MSHA Form 7000-1, filed 11-1-90, completed
                by Kevin Tuttle, Chief Safety Engineer

       3        Enlargement of Polaroid photograph (taken
                April 1991) looking downhill from approximate
                point at which car stalled and brakes failed;
                car rolled downhill and to the left around
                curve at conveyor facility shown in center of
                picture.

       4        Enlargement of Polaroid photograph (taken
                April 1991) looking downhill and showing road
                further downhill and around curve from Joint
                Ex. 3; conveyor belt in center of Jt. Ex. 3
                feeds into yellow loadout shown in Jt. Ex. 4.

       5        Enlargement of Polaroid photograph (taken on
                day of accident, Oct. 3, 1990) looking uphill
                and showing where car came to rest below
                loadout pictured in Jt. Ex. 4.

       6        Enlargement of Polaroid photograph (taken on
                day of accident, Oct. 3, 1990) looking across
                the road and showing car at rest behind berm.

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Contentions of the Parties

Contestant contends that:

 1. This case involves an operator's obligation to report

"occupational" injuries pursuant to Section 103 of the Mine Act
and Section 50.20 (Footnote 1) of the Secretary's regulations.

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2. Inspector Huggins "issued the instant citation . . .
charging Energy West with violating 30 C.F.R. 50.20 by failing
to report an "occupational injury."

 3. The "sole issue in this proceeding is whether Section

50.20 requires Energy West to report a nonwork injury such as Mr.
Hammond's, which occurred prior to the injured employee's shift
and involved only the failure of the brakes on the employee's own
private car as he drove to work."

 Respondent MSHA contends that the injury to miner Hammond on

mine property was required to be reported pursuant to 30 C.F.R.
50.20 since it was an "occupational injury" within the meaning of
the standard.

Discussion, Findings, and Conclusions

 Preliminarily, it is useful to determine whether the Hammond

injury is reportable as an "accident," whether or not such injury
be considered as "occupational."

 30 C.F.R.   50.20 expressly requires a mine operator to

report three categories of events: (1) accidents, (2)
occupational injuries, and (3) occupational illnesses. It is
significant that the word "occupational" does not precede or
modify the word "accident" in view of the way "accident" is
defined in the preceding regulation [Section 50.21(h)] which
governs its usage in Section 50.20, to wit:

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(h) "Accident" means,

    (1) A death of an individual at a mine;

    (2) An injury to an individual at a mine which has a
    reasonable potential to cause death;

    (3) An entrapment of an individual for more than thirty
    minutes;

    (4) An unplanned inundation of a mine by a liquid or
    gas;

    (5) An unplanned ignition or explosion of gas or dust;

    (6) An unplanned mine fire not extinguished within 30
    minutes of discovery;

    (7) An unplanned ignition or explosion of a blasting
    agent or an explosive:

    (8) An unplanned roof fall at or above the anchorage
    zone in active workings where roof bolts are in use;
    or, an unplanned roof or rib fall in active workings
    that impairs ventilation or impedes passage;

    (9) A coal or rock outburst that causes withdrawal of
    miners or which disrupts regular mining activity for
    more than one hour.

    (10) An unstable condition at an impoundment, refuse
    pile, or culm bank which requires emergency action in
    order to prevent failure, or which causes individuals
    to evacuate an area; or, failure of an impoundment,
    refuse pile, or culm bank;

    (11) Damage to hoisting equipment in a shaft or slope
    which endangers an individual or which interferes with
    use of the equipment for more than thirty minutes; and

    (12) An event at a mine which causes death or bodily
    injury to an individual not at the mine at the time the
    event occurs.

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An accident is thus reportable, whether or not it can be
said to be "occupational," if it is, in the language of
50.2(h)(2),(Footnote 2) (a) an injury to an individual (b) at a mine
which (3) has a reasonable potential to cause death.(Footnote 3) Here,
the accident caused an injury to an individual at the mine and
did cause a minor injury. But did it have "a reasonable potential
to cause death?" I conclude that it did not. The accident
occurred when the miner, Hammond, while driving to work on mine
property, had the unusual event of his engine stalling and his
brakes failing while he was traveling uphill. (Footnote 4) His personal
vehicle then rolled backwards downhill approximately 150 feet and
turned on its side into a drainage ditch on the side of the road.
Scrutiny of the primary piece of evidence bearing on the
potential severity of any injury--the photograph of the
overturned vehicle (Joint Ex. 5)--reveals that the vehicle was
not demolished or, in the vernacular of the auto insurance
industry, "totaled out." In other words, the damage to the
vehicle does not warrant an inference that there was a reasonable
potential to cause death. While the degree of the grade of the
road was not stipulated, the vehicle rolled only 150 feet before
coming to rest and from this I infer that the speed at which it
was traveling when it impacted the ditch was not such to have
severely damaged either the vehicle or its occupant. (Footnote 5)
Finally, the minor injury actually sustained by Hammond is some
evidence of the magnitude of bodily harm one might reasonably
expect of the accident. The injury in and of itself has no
reasonable potential to ultimately result in death.

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It is therefore concluded, that the event, as an "accident," was
not required to be reported by the standard.

 The question remains whether Hammond's neck strain

(Stipulation; Joint Ex. 2) was reportable as an "occupational
injury." Hammond was off work two workdays because of the injury.
(Joint Ex. 2).

 "Occupational injury" is defined in the pertinent regulation

[30 C.F.R. 50.2(e)] as follows:

      (e) "Occupational injury" means any 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.

 The circumstances of Hammond's neck strain meet the

definition of "occupational injury" set forth in 30 C.F.R.
50.2(e). Each element thereof is established in this matter:

 "Any injury": Hammond suffered a strained neck as a result

of the accident. Part 50 explicitly includes sprains and strains
as a type of injury which may be reportable. (See 30 C.F.R.
50.20-3, which distinguishes first aid and medical treatment of
various injuries.)

 "To a miner": Hammond was a roof bolter at Energy West's

Deer Creek mine. Since he works in a coal mine, his position
clearly qualifies him as a "miner" under the definitions set out
under the Act (30 U.S.C. 802(g) (1988) and Part 50 (30 C.F.R.
50.2(d) (1988).

 "For which medical treatment is administered, or which

results in . . . inability to perform all job duties on any day
after an injury . . . " Hammond's accident occurred on October 3,
1990, and he didn't return to work until October 8.(Footnote 6 The
MSHA form (Jt. Ex. 2) shows that he missed two days of work, not
counting inability to return to full duty right away.

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Contestant argues, however, that the Secretary's (MSHA's)
interpretation of these reporting requirements for an injury not
having a causal nexus to actual mining work at a mine is wrong
since such is contrary to the Mine Act itself, the legislative
history and "immediate predecessors" to the current reporting
regulations. Contestant also maintains that requiring reporting
for non-work related injuries would be burdensome.(Footnote 7)
Finally, Contestant does concede that there is Commission precedent
(Freeman, infra) to the contrary of its position.(Footnote 8)

 The Commission has indeed resolved the issue in this matter

previously in Secretary of Labor v. Freeman United Coal Mining
Company, 6 FMSHRC 1577 (July 1984). That precedent governs.

 In Freeman, a plant cleaner who was putting on his boots in

the mine's wash house an hour before his shift commenced
experienced back pain. At the hospital he was diagnosed as having
back strain and he subsequently missed 13 days' work. The
administrative law judge found a "failure to report" violation
under Section 50.2(e) because (1) there was an injury to a miner;
(2) it occurred at a mine; and (3) medical treatment was required
and it caused disability. On appeal to the Commission, Freeman
argued that Section 50.2(e) contemplated a "causal nexus" between
the miner's work and the injury. The Commission rejected this
contention, stating:

      . . . sections 50.2(e) and 50.20(a), when read
      together, require the reporting of an injury if the
      injury--a hurt or damage to a miner--occurs at a mine
      and if it results in any of the specified serious
      consequences to the miner. These regulations do not
      require a showing of a causal nexus.

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The Commission also determined (1) that the regulatory history of
the occupational injury - reporting requirement does not show any
intent to require such a specific causal connection and (2) that
Section 50.20(a) is consistent with and reasonably related to the
statutory provisions (Mine Act) under which it was promulgated.

 Accordingly, despite the quality and thoroughness of

Contestant's arguments, it is concluded that the position of
Respondent MSHA (which is incorporated herein by reference) is
meritorious and that the neck injury to Hammond was an
occupational injury for reporting purposes in mine safety
enforcement and was required to be reported pursuant to 30 C.F.R.
50.20. Since it wasn't, the violation charged in Citation No
3413924 is found to have occurred.(Footnote 9)

                                 ORDER

 Contestant's Notice of Contest is DENIED; Citation No.

3413924 is AFFIRMED; this proceeding is DISMISSED.

                                 Michael A. Lasher, Jr.
                                 Administrative Law Judge

Footnotes start here:-

 1. 30 C.F.R.   50.20 pertaining to "Preparation and

Submission of MSHA Report Form 7000-1--Mine Accident, Injury, and
Illness Report," appears in Subpart C under the heading
"Reporting of Accidents, Injuries, and Illnesses" and provides as
follows:

      (a) Each operator shall maintain at the mine office a

supply of MSHA Mine Accident, Injury, and Illness Report Form
7000-1. These may be obtained from MSHA Metal and Nonmetallic
Mine Health and Safety Subdistrict Offices and from MSHA Coal
Mine Health and Safety Subdistrict Offices. 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. If an occupational illness is
diagnosed as being one of those listed in 50.20-6(b)(7), the
operator must report it under this part. The operator shall mail
completed forms to MSHA within ten working days after an accident
or occupational injury occurs or an occupational illness is
diagnosed. When an accident specified in 50.10 occurs, which
does not involve an occupational injury, sections A, B, and items
5 through 11 of section C of Form 7000-1 shall be completed and
mailed to MSHA in accordance with the instructions in 50.20-1
and criteria contained in 50.20-4 through 50.20-6.

      (b) Each operator shall report each occupational injury

or occupational illness on one set of forms. If more than one
miner is injured in the same accident or is affected

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simultaneously with the same occupational illness, an operator
shall complete a separate set of forms for each miner affected.
To the extent that the form is not self-explanatory, an operator
shall complete the form in accordance with the instructions in
50.20-1 and criteria contained in 50.20-2 through 50.20-7.

    2. The other 11 categories of "accident" are not applicable

here.

 3. Review of the other 11 categories of "accident" reveals

that any such event covered by the definition carries with it the
potential for severe injuries or fatalities. The focus of the
specific categories appears to be on the high degree of
seriousness of potential injuries to individuals endangered by
the event at the mine rather than whether the event occurred in
the context of a work-related activity by the endangered
individual.

 4. No other causal factors, including weather, road

condition, or negligence on the part of the driver or the mine
operator, were involved.

 5. The test here, of course, is "reasonable potential to

cause death," not "reasonable likelihood" to cause serious
injury.

    6. See also Respondent's Brief, fn.1, pg. 2.

 7. However, if there were so many accidents or injuries at a

mine as to then the need of the regulating agency to have them
reported - to enable investigation and exercise of judgment -
would necessarily outweigh the mine operator's attendant
paperwork problem. Further, as forms go, MSHA Form 7000-1 (Gov't
Ex. 2) consists of one page and is not particularly elaborate
whether completed for statistical purposes or for starting the
process of notification, inspection, and enforcement action if
called for.

 8. Contestant's Brief, p. 16. Contestant's Reply Brief makes

no further mention of the Freeman precedent.

 9. I am unaware of any related penalty case and none has

been mentioned by the parties in their stipulation or otherwise.
(See Contestant's "Filing of Subsequent Modification and Motion
for Leave to File Same Out of Time" dated June 21, 1991, %57 5,
pg. 2).