Consolidation Coal Company

Plain-English summary

Consolidation Coal Company faced six alleged violations involving injury reporting at the Shoemaker Mine. Five citations were settled for $170 each, and Judge Paul Merlin approved those settlements after considering the Mine Act's penalty criteria. The judge found that the evidence did not establish an electrical shock or a reportable occupational injury for the remaining citation, which concerned a worker's chest pains, heart attack, and later stroke. He vacated Citation No. 2899820, dismissed the penalty petition as to that citation, and ordered the company to pay $850 for the five settled citations.

Decision snapshot

• Cited standards: 30 C.F.R. § 50.20(a) and § 50.20(e)
• Outcome: Five settlements were approved for $850 total, and Citation No. 2899820 was vacated.
• Key point: The judge found no proof that the worker suffered an electrical shock at the mine or that the chest pains were a reportable single incident under the cited reporting rules.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. CONSOLIDATION COAL
DDATE:
19880630
TTEXT:

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~874
Federal Mine Safety and Health Review Commission (F.M.S.H.R.C.)
Office of Administrative Law Judges

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. WEVA 87-352
PETITIONER A.C. No. 46-01436-03699

          v.                                     Shoemaker Mine

CONSOLIDATION COAL COMPANY,
RESPONDENT

                                 DECISION

Appearances: Anita D. Eve, Esq., Office of the Solicitor, U.S.
Department of Labor, Pittsburgh, Pennsylvania, for Petitioner.
Paul T. Boos, Esq., Consolidation Coal Company, Wheeling,
West Virginia, for Respondent.

Before: Judge Merlin

 This case is a petition for the assessment of civil

penalties filed by the Secretary of Labor against Consolidation
Coal Company for six alleged violations. All involve 30 C.F.R.
Part 50.

                 Citation Nos. 2945442, 2945443, 2945446,
                             2945455, 2945456

 These citations were originally assessed at $250 each. The

parties have agreed to settle them for $170 apiece. (Footnote 1) The
Solicitor advises that in these cases the miners failed to report
the alleged injuries promptly and the operator had reason to
believe the injury was nonoccupational and occurred off mine

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property. The negligence factor is therefore, greatly reduced.
After considering these matters in light of six statutory
criteria set forth in section 110(i) of the Federal Mine Safety
and Health Act of 1977, I conclude the settlements may be
approved.

                      Citation No. 2899820

 This item involves an alleged violation of 30 C.F.R.

50.20(a). However, it was not settled and was heard on the merits
on May 17, 1988.

 The subject citation reads as follows:

      "The mine operator did not fill out and mail to
      M.S.H.A. within 10 calendar [sic] days, Form 7000Ä1,
      "Mine accident, Injury and Illness Report," for an
      occupational injury that occurred to Donald Chamber on
      12.5.85, which resulted in lost work days."

 Section 50.20(a), 30 C.F.R.     50.20(a), of the regulations

provides:

      (a) Each operator shall maintain at the mine office a
      supply of MSHA Mine Accident, Injury, and Illness
      Report Form 7000Ä1. 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 operator shall mail
      completed forms to MSHA within ten working days after
      an accident or occupational injury occurs or an
      occupational illness is diagnosed.

      *     *     *

 And section 50.2(e) 30 C.F.R.     50.20(e) states:

      (e) "Occupational injury" means any injury to a miner
      which occurs at the 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.

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On December 5, 1985, Donald Chambers, a mechanic at the
operator's Shoemaker mine, left the mine because he was suffering
chest pains. Later that day he was admitted to Reynolds Memorial
Hospital where he subsequently was diagnosed as suffering a
myocardial infarction. Five days later he had a stroke. He was
then transferred to Western Pennsylvania Hospital where cardiac
catheterization disclosed a blockage in the anterior descending
branch of the left coronary artery which practically totally
occluded the vessel (Exhibit D). He was discharged from Western
Pennsylvania Hospital on January 4, 1986. The evidence also
discloses that Mr. Chambers is a long-standing diabetic and a
heavy smoker (Tr. 23, 50). Mr. Chambers admitted that until the
time of the heart attack he smoked a pack a day or two packs
every three days (Exhibit N, p. 13; Tr. 50).

 A dispute exists over the etiology of Mr. Chambers' chest

pains. Hospital records upon admission to Reynolds Memorial state
that Mr. Chambers reported chest pains of three days duration
(Exhibit B). In the discharge summary dated December 30, 1985,
Dr. Baysal, Mr. Chambers' personal physician, stated that upon
admission the duration of symptoms were a little bit
questionable, but nevertheless appeared to be of 24 hours
duration (Exhibit C, p. 1). Dr. Baysal also reported in the
discharge summary that on December 16, Mr. Chambers and his
family told him that Mr. Chambers had been struck with a live
electrical wire at work on the day of admission and that the
chest pains developed about 1/2 hour to one hour following this
incident (Exhibit C, p. 2). In his subsequent deposition dated
May 13, 1987, during the workmen's compensation proceedings, Dr.
Baysal changed his story and stated that Mr. Chambers had told
him about the electrical shock one or two days after his hospital
admission (Exhibit O, p. 12). In his first workmen's compensation
deposition dated August 20, 1986, Mr. Chambers asserted he had
had no chest pains until after the electrical shock (Exhibit N,
p. 6). But in his second deposition, a year later on September
11, 1987, he stated he had had indigestion for about three days
before the heart attack (Exhibit M, p. 6). He repeated the
indigestion allegation at the hearing in this proceeding,
asserting that indigestion was the pain referred to in the
hospital admission reports (Tr. 24, 45). At the present hearing,
Mr. Chambers admitted he had not reported the alleged electrical
shock to anyone at the mine before he left (Tr. 16, 42).

 There is also a dispute in the medical evidence over whether

the electrical shock, assuming it did occur, caused Mr. Chambers'
heart attack. Dr. Baysal expressed the opinion that the
electrical shock had caused the infarct, noting that Mr. Chambers
previously had been asymptomatic from the standpoint of a
pre-existing heart condition (Exhibit O, pp. 12 & 13). However,
Dr. Baysal admitted that Mr. Chambers showed no evidence of a
burn or coagulation necrosis from the alleged shock (Exhibit O,
p. 40). Dr. Baysal also referred to the fact that a single vessel
disease is rare in a diabetic (Exhibit O, p. 14).

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Dr. Wurtzbacher, a consultant engaged by Consol to review the
medical evidence, expressed medical opinions contrary to those of
Dr. Baysal. Dr. Wurtzbacher stated that there was no medical
evidence of a direct relationship between the electrical shock
and subsequent myocardial infarction (Exhibit F). He further
stated that although multiple vessel atherosclerosis is seen in
most cases involving diabetics, a single vessel disease in
diabetics can be seen infrequently (Exhibit G). Finally, he
described the cardiac symptoms and failures as caused by diabetes
(Exhibit G).

 The Secretary's allegation of a reporting violation is based

upon the assertion that Mr. Chambers suffered an electrical shock
which constituted a reportable injury under Part 50. The
Solicitor also argues that even if there was no electrical shock,
a report should have been made because Mr. Chambers had chest
pains at the mine.

 After a review of all the evidence I find that Mr. Chambers

was not shocked on December 5, 1985. I carefully observed and
listened to the testimony of Mr. Chambers and his co-worker Mr.
McLaughlin regarding the alleged occurrence of an electrical
shock. I did not find them credible. As already noted, Mr.
Chambers changed his story several times and as the operator's
brief points out, his account became more elaborate and
detailed -- and more obviously self-serving, with each telling. If
the alleged shock were as severe as he alleged, it is incredible
he did not tell anyone about it at the time. The same is true of
Mr. McLaughlin's testimony, because he also told no one about the
alleged shock. I find persuasive the contemporaneous evidence
which shows that when admitted to the hospital, Mr. Chambers did
not relate anything about an electric shock, but rather described
chest pain of three days duration. I also note the section
foreman's testimony that on December 5 Mr. Chambers complained of
chest pain upon entering the mine before he began working (Tr.
96, 97). In addition, on the discharge summary dated December 30,
1985, Dr. Baysal, described chest pain on admission as having
been present for 24 hours and said that Mr. Chambers did not
allege an electrical shock until December 16, ten days after his
hospital admission (Exhibit C).

 Dr. Baysal's subsequent turnabout with respect to when Mr.

Chambers first told him about the alleged shock, is not
convincing. Even apart from the fact that the Secretary failed to
produce Dr. Baysal to testify in these proceedings thereby
resulting in his unavailability for cross-examination by the
operator, Dr. Baysal's contradictory statements fall far short of
providing a basis for the Secretary to sustain her burden of
proving a shock occurred. In addition, Mr. Chambers had no
evidence of burns and he never was unconscious (Tr. 36Ä38). Based
upon the foregoing, I conclude Mr. Chambers did not suffer

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an electrical shock and therefore, the operator committed no
violation in failing to report it.

 I reject the Solicitor's argument (p. 11 of her brief) that

even if an electrical shock did not occur, a violation occurred
because the operator was obliged to report Mr. Chamber's chest
pains. The MSHA publication "Information Report on 30 C.F.R. Part
50" February 1980 attached to the Solicitor's brief as Government
Exhibit 7, states in pertinent part at page 6:

      "* * * The MSHA management concept on a dividing line
      between injury and illness states that an injury
      results from a recognizable single incident, i.e., a
      worker harmed by a single incident would be injured.
      *   *   *"

 The Solicitor attempts to describe the heart attack as a

single event which had to be reported. But she offers no evidence
to show when the heart attack occurred and cannot equate the
particular chest pains Mr. Chambers experienced at the mine with
the precise onset of the heart attack, since he had been having
such pains long before he went to work on December 5. Therefore,
these chest pains were not a recognizable single incident within
the meaning of the regulations and MSHA publication.

 Finally, the Commission's decision in Freeman Mining

Company, 6 FMSHRC 1577 (July 1984), is of no benefit to the
Solicitor here. In that case the Commission referred to an injury
as "an act" that damages, harms or hurts, 6 FMSHRC at 1578. Once
again, there is no such single act present in this case. And the
issue of causal nexus is not involved here as it was in Freeman.
If an electrical shock had occurred here, there would be no
question that it was work related, which was the question
presented in Freeman. If there had been a shock, the only inquiry
would be whether it had any of the prescribed consequences such
as medical attention or lost work days. Even assuming an
electrical shock had occurred, I still would not find a
violation. Medical attention and lost work days resulted from a
heart attack, which the great weight of the evidence demonstrates
was in turn caused by long-standing diabetes and heavy smoking,
not from the electric shock as the Secretary alleges.

 Accordingly, I conclude there was no violation and that

Citation No. 2899820 must be VACATED, and that the penalty
petition be dismissed insofar as this citation is concerned.

 As indicated above, the briefs filed by counsel which were

most helpful, have been carefully reviewed. To the extent they
are inconsistent with anything herein, they are rejected.

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ORDER APPROVING PARTIAL SETTLEMENT
ORDER TO PAY
ORDER OF PARTIAL DISMISSAL AND VACATION

 As set forth herein, the proffered five settlements for

Citation Nos. 2945442, 2945443, 2945446, 2945455 and 2945456 are
Approved and in accordance therewith, the operator is ORDERED TO
PAY $850 within 30 days from the date of this decision.

 As further set forth herein, the Secretary's penalty

petition is DISMISSED insofar as Citation No. 2899820 is
concerned and that citation is VACATED.

                          Paul Merlin
                          Chief Administrative Law Judge

ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
Footnote starts here:-

~Footnote_one

1 The Solicitor's settlement motion erroneously includes
Citation No. 2945453. This item was deleted from the assessment
sheet filed with the Solicitor's penalty petition and was not in
the petition itself. Obviously, it was settled, paid, or
otherwise disposed of previously. The Solicitor has confirmed
this by telephone.