Accident and injury reports

MSHA is under pressure to audit mine operator reports of accidents, injuries and illnesses. The inspector general of the U.S. Department of Labor issued a report in March that notes while MSHA has taken steps to detect and deter underreporting, more action is needed.

The upshot of the report is this: “MSHA is expected to do everything it can to find and prosecute underreporting to ensure the agency has accurate statistics for safety evaluation and enforcement purposes.”

Accident reporting
Operators must remember that if an event falls within MSHA’s official definition of “accident,” the operator must report the accident within 15 minutes of discovery. The report must be made by telephone to MSHA at 800-746-1553. No other reporting to MSHA by any other means, or to any other location, will satisfy the immediate reporting requirement. Failure to report within 15 minutes may cause a $5,000 fine that cannot be reduced even if contested. The maximum fine in this case is $60,000.

There are 12 categories of events in which MSHA requires immediate reporting. At the top of the list are: death from any cause; serious injury with reasonable potential to cause death; and entrapment with reasonable potential to cause death (or lasting more than 30 minutes). Operators must know the details of all categories so they are prepared to recognize and respond to any incident.

The telephone report must be followed by a written report within 10 days, responding to all questions in MSHA’s 7000-1 reporting form. This form is required for all accidents, even if there is no injury. The same form is used for reporting injuries and illnesses that do not fall within the definition of “accident” in MSHA’s regulations.

Injury and illness reporting
The inspector general expressed concern that MSHA has not issued guidance against practices of mine operators, which may discourage miners from reporting injuries and illnesses such as:

• Drug testing miners after accidental injury
• Discipline for “untimely” reporting of injuries
• Incentive programs that reward miners for no injuries
• Progressive discipline for repeated reported injuries of a miner
• Accident repeater programs with progressive discipline for multiple injuries reported
• Safety incentive programs that reward groups of miners if there are no injuries in a group

With this nudge from the inspector general, actions operators may take to encourage miners to be more careful may be deemed suspect by MSHA. If a miner or miner’s representative complains, MSHA will investigate.

The inspector general notes with approval MSHA’s successful litigation in the 2013 Big Ridgecase in the U.S. Court of Appeals for the Seventh Circuit. The court validated MSHA’s demands to operators for all personnel and medical records, workers compensation records and insurance records, without regard to operator or miner privacy. The report says: “An integral part of detecting underreporting is MSHA’s access to all available records, including those held by mine operators.”

Joe Main, the assistant secretary of labor for MSHA, accepted the recommendations in the audit report and stated that MSHA will consider sponsoring or participating in additional studies of underreporting. Operators can expect MSHA to incorporate into its audits examination of any possible practices that MSHA believes might discourage reporting – especially if there are complaints from miners.

Independent contractor reporting
A recent decision of the U.S. Court of Appeals for the Fourth Circuit in a Dickenson-Russell Coal Co. case shed some light – and created some confusion – regarding mine operator requirements for reports of injuries and illnesses of independent contractors. The company had augmented its workforce with employees from a temporary staffing company. When an employee was injured, the staffing company reported the injury to MSHA.

The court held that because it was the mine operator and not the temporary staffing employer who supervised these employees, the mine operator must report any injuries experienced by such personnel – even if the employing company has already reported. This comports with published MSHA enforcement policy on temporary staffing contractors.

The court also stated, however, that mine operators must report the injuries of all independent contractor employees on mine property. This is contrary to longstanding MSHA policy that contractors – not the mine operator – report contractor employee injuries.

According to traditional definitions, independent contractors directly control their own work and perform it by their own means and methods. Unlike staffing companies, they supervise the work and safety of their own employees, may have their own MSHA ID, and are logically the party that should report regarding their own workforce.

MSHA’s computer center in Denver receives all accident, injury and illness reports. When an independent contractor reports an injury to its own employee, it facilitates MSHA’s charging the injury to the correct party. If the mine operator reports in addition to the independent contractor, the computer center will not enter two reports. One will be discarded – typically the mine operator’s report, except when the independent contractor did not report at all.

Take note
Operators must report accidents within 15 minutes of discovery or be subject to a fine.

Legal editor Michael T. Heenan is an attorney at Ogletree, Deakins, Nash, Smoak & Stewart, one of the nation’s largest labor and safety law firms. He can be reached at michael.heenan@odnss.com.