Seriousness of potential injury

By and |  October 9, 2013

In Secretary [of Labor] v. S&S Dredging Company, the Federal Mine Safety and Health Review Commission overturned an administrative law judge who concluded a violation was not “significant and substantial,” as MSHA employs that term for elevated enforcement. The judge had vacated an unwarrantable failure citation because an unwarrantable citation can only be issued if the violation was “S&S.”

In reversing the judge’s decision, the commission held this: “The judge erred by limiting S&S violations to those that are reasonably likely to result in injuries that require hospitalization, surgery or require a long period of recuperation.”

What the judge considered

S&S Dredging was cited for failure to correct a defect on a wheel loader. It had a mounting step that “hung loosely from chains and was unstable.” The next step higher on the loader was stable, but it was “three feet high, bent and caved inward.” The steps had been in this condition for two years according to the company – hence the inspector found “unwarrantable failure.” (There was no indication of injury during the two years.)

The company stipulated there was a violation, and also that due to the condition of the broken bottom step, the second step was the first usable step. The company objected to the inspector finding an S&S violation upon which he based an unwarrantable failure citation.

The focus of the case was not whether injury was reasonably likely – nothing had happened in the two years the condition existed – but rather on whether there would be a reasonably serious injury if a misstep were to occur. The judge decided that injury would not “be of a reasonably serious nature.” He identified the likely injury as “sprains, possibly a broken ankle.” He found this not to be reasonably serious because there was no evidence that either injury would require hospitalization, surgery or a long period of recuperation.

Commission decision

The commission found that the judge had applied an “unduly stringent test” in analyzing seriousness of injury, and he erred in requiring MSHA to demonstrate that an injury would result in hospitalization, surgery or a long period of recuperation. The commission said that the judge’s decision conflicts with established case law, including cases in which the commission referred to serious injuries such as leg or back injuries (from failure to maintain an escape way in safe condition); reasonably serious injuries such as finger or wrist fractures (from slipping on a walkway); and reasonably serious injuries such as sprains, strains or fractures (from a trip and fall).

Some operators have objected that minor sprains are not within the serious injury category, but this decision does not go that far. While possible sprains are mentioned, it is always in association with possible fractures. Never was there a conclusion that nothing more than a sprain or strain might result. If fracture was not deemed reasonably likely in this case, there might not have been an S&S finding.


The problem with evaluating the likely seriousness of injuries that have not occurred is it is all speculation, based on an imagined sequence of events. The inspector imagines one thing; the company thinks otherwise.

If the company seeks a conference on the citation, the conference and litigation representative (CLR) may imagine a more serious injury – or a less serious one. If the citation is formally contested, the solicitor or CLR assigned to the case may decide that regardless of seriousness of injury, there was no reasonable likelihood of occurrence.

For example, it is at least theoretically possible that a miner would insert a finger in an open knockout on an electrical junction box, and the finger would contact an exposed conductor. Would it cause a small electrical shock, or would there be a fatal electrocution? For S&S purposes, it should not matter, because injury from a knockout is unlikely because no one sticks a finger in an open knockout.

The facts of each case affect seriousness of a reasonably likely injury. There can be disagreements on what facts may be considered. The commission faulted the judge in the S&S Dredging case for evaluating seriousness of likely injury from his perspective that “[the] lower step was only one foot off the ground,” and considering one foot “does not appear to be very significant in terms of a contributing factor to a serious injury.”

The commission said it was error for the judge to evaluate potential seriousness of injury from the low step because it had been stipulated the step was not usable. This is a legal technicality, but it illustrates how speculation is peculiar to the mind of the individual evaluating. Will the bottom step be used? If so what could happen? If the supposed thing happened, where does the person land? What part of the body is impacted? What if the imagined fall comes from trying to access the upper step that is three feet off the ground? What if the ground is uneven? And so on.

Notwithstanding case decisions, MSHA policy, inspector conclusions, CLRs, judges and commissioners, there are no definitive answers for a large portion of S&S determinations. They depend on who makes the last call.

Take Note
There are no definitive answers for a large portion of S&S determinations, notwithstanding case decisions, MSHA policy, inspector conclusions, CLRs, judges and commissioners. S&S determinations depend on who makes the last call.

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





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