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….”
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.