ALJ Ruling on Heart Attack Reporting Requirements Creates Split of Authority

50 %
50 %
Information about ALJ Ruling on Heart Attack Reporting Requirements Creates Split of...

Published on October 2, 2013

Author: pattonboggs

Source: slideshare.net

PattonBoggs.com Health and Safety Law Client Alert 1 SEPTEMBER 30, 2013 This Alert provides only general information and should not be relied upon as legal advice. This Alert may be considered attorney advertising under court and bar rules in certain jurisdictions. For more information, contact your Patton Boggs LLP attorney or the authors listed below. PETER S. GOULD pgould@pattonboggs.com ERIK M. DULLEA edullea@pattopnboggs.com ANNE D. HARRINGTON aharrington@pattonboggs.com GREGORY M. LOUER glouer@pattpnbopggs.com CHRISTA LEE ROCK crock@pattonboggs.com WESLYN P. REED-RICE wreed@pattonboggs.com MAXINE MARTIN msmartin@pattonboggs.com ABU DHABI ANCHORAGE DALLAS DENVER DOHA DUBAI NEW JERSEY NEW YORK RIYADH WASHINGTON DC HEALTH AND SAFETY LAW CLIENT ALERT ALJ RULING ON HEART ATTACK REPORTING REQUIREMENTS CREATES SPLIT OF AUTHORITY In Vulcan Construction, decided August 3, 2013, Federal Mine Safety and Health Review Commission Administrative Law Judge Gill held that an employee’s heart attack did not constitute an immediately reportable accident because it was not an “injury” under 30 C.F.R. § 50.10(b). This decision creates a split of authority among ALJs, as previous decisions have upheld citations and penalties for failure to immediately report heart attacks. 30 C.F.R. § 50.10 requires that an operator must immediately contact MSHA within 15 minutes after the operator knows or should know that an accident has occurred involving (a) a death at the mine, (b) an injury that has the reasonable potential to cause death, (c) an entrapment that has a reasonable potential to cause death, or (d) any other accident. In Vulcan, Judge Gill concluded that a heart attack is a disease and an illness, which are different from an “injury” which triggers the reporting requirements under 50.10(b). Co-workers saw Vulcan’s employee in physical distress; he had chest pain, and became faint and discolored. He never lost consciousness and he never received CPR. Vulcan’s plant manager drove the employee to the hospital where doctors diagnosed him as having suffered a heart attack while working at the mine. Vulcan reported the heart attack seven days later when it submitted a Form 7000-1, within the 10 day deadline to for report accidents, injuries, and illnesses. Vulcan was later cited for failing to immediately report the heart attack. Judge Gill vacated the citation because the unambiguous, plain text of 50.10(b) does not include illness or disease. Judge Gill stated, “[i]f the immediate accident notification requirement were read to include heart attacks within the meaning of injury, the result would be an overlap of the concepts of injury and illness….”

PattonBoggs.com Health and Safety Law Client Alert 2 Initially, Judge Gill’s decision appears to contradict other ALJ holdings that upheld citations for failure to immediately report an employee’s heart attack. See E.S. Stone & Structure, Inc., 33 FMSHRC 515 (ALJ Augustine, 2011); Standard Sand & Silica Co., 2011 WL 68880704, FMSHRC (ALJ McCarthy, 2011); Pennsy Supply, Inc., 2012 FMSHRC LEXIS 201 (ALJ Koutras, 2012). But in each of these cases, the heart attack victim was found unresponsive, CPR was administered, and the victim was later pronounced dead. Judge Gill distinguished these cases because of the need for CPR and the presence of an unresponsive victim. Beginning in 2003, operators were required to immediately report any injury treated with CPR because the need for CPR indicates that the injury has a reasonable potential to result in death. Additionally, when an employee is found unconscious and in need of CPR, there is no way for the operator to know whether mine activities or conditions caused the injury or illness until there is a diagnosis or, in some cases, an autopsy. Because of this, Judge Gill reasoned that the best policy is to require immediate reporting in these circumstances. If an unknown or hidden mine hazard caused the harm to the miner, valuable time would have been wasted during the operator’s delay in reporting. Although Judge Gill decided that a heart attack is not an immediately reportable injury, under his reasoning operators are really left with only the narrowest window: immediate reporting is not required for heart attacks, only when the employee remains conscious and CPR is not required. One may view Vulcan to contradict prior ALJ rulings, and the Commission has yet to weigh in on the issue. Thus, it is unclear how heart attacks will ultimately be treated under MSHA’s reporting requirements until the full Commission weighs in.

Add a comment

Related presentations

Related pages

ALJ Ruling on Heart Attack Reporting Requirements Creates ...

... that an employee’s heart attack did not ... creates a split of authority ... Heart Attack Reporting Requirements Creates Split of ...
Read more

Employment Law Alert | Gibbons P.C. | Employment Lawyers

Employment Law Alert is a ... The Court’s decision in Green resolves a split in authority between ... but the reporting requirement is waived ...
Read more

Forum Archive, N – S | NOSSCR

NOSSCR comments on proposed rule to eliminate requirement to ... Authority to Make ... OIG Finds Alabama DDS Allowance Rate "Goal" Creates ...
Read more

SSR 83-47c - Social Security Administration

Social Security and Acquiescence Rulings. ... SSR 83-47c. Kirk et al. v. Secy ... The courts that have confronted this issue have split widely over the ...
Read more

Labor Relations Today | McGuireWoods

This ruling in National ... The New Rule “exceeds DOL’s authority under the LMRDA by ... The New Rule’s reporting requirements unreasonably ...
Read more

Evaluation and Weighing of Medical Opinion Evidence in ...

Evaluation and Weighing of Medical ... (D.C. Cir. 1979) (ALJ acted within his authority in ... (Affirming denial of benefits for a heart attack ...
Read more

The Dark Side of Mercy Ministries - Rewire

Analysis Violence. The Dark Side of Mercy Ministries. Feb 21, 2012, 6:37am Lisa Kerr. Over the past few weeks, I've spoken with two young women who have ...
Read more

For Undocumented Women in Texas, HB 2 Is 'Life or Death ...

For Undocumented Women in Texas, ... The staff member who called the authorities on Borrego because ... After the Supreme Court announced its split ...
Read more