When to notify MSHA of an injury

By Bill Doran and Margo Lopez| March 5, 2024

Lopez

Doran

An issue we deal with repeatedly in our practice is whether a mine operator has to immediately notify the Mine Safety & Health Administration (MSHA) of a particular injury.

The answer to this question always hinges on the facts surrounding the injury. Inevitably, there are gray areas, which make a definitive answer difficult.

The case

A recent split decision by the Federal Mine Safety & Health Review Commission in Secretary of Labor (MSHA) v. American Soda gives mine operators more to think about.

A major complicating factor in the decision-making process of whether an injury is subject to the immediate notice requirement is the fact that you only have 15 minutes to make that determination. This 15-minute requirement was established in the Mine Improvement & New Emergency Response Act of 2006.

MSHA promulgated this notification requirement at 30 C.F.R. § 50.10. That regulation states, in pertinent part, that: “[t]he operator shall immediately contact MSHA at once without delay and within 15 minutes … once the operator knows or should know that an accident has occurred involving (b) [a]n injury of an individual at the mine which has a reasonable potential to cause death.”

In American Soda, an underground miner suffered a head injury from a rock fall. The miner said the rock dislodged his hard hat and drove him into the ground. An additional smaller rock landed on his unprotected head. The miner’s clothes were torn, he was unable to see out of his swollen right eye, his left eye was full of blood, and he had a gash on the back of his head.

Although no one saw the rock fall, witnesses testified that immediately after the incident, the miner was observed lying on the ground without a hard hat and appeared “dazed and confused.” Personnel administered first aid. The miner kept saying “I’m all right,” and refused to be placed on a backboard or in a cervical collar. He appeared to be coherent as he traveled in a mantrip, and then walked to the hoist to exit the mine.

On the surface, the mine manager observed the miner walking unassisted and coherent to the ambulance. The manager determined the miner’s injuries did not have a reasonable potential to cause death and did not report the injury to MSHA. Management was told by a doctor that the injuries were not life threatening. The miner received staples to close the gash and surgery to repair a shattered eye socket.

An anonymous complaint alerted MSHA of the incident, and an inspector subsequently issued a citation for failure to provide immediate notice. An administrative law judge (ALJ) affirmed the citation, and that decision remained intact following the review commission’s 2-2 split decision.

The ruling

The two affirming commissioners relied heavily on a 2019 Third Circuit decision in Consol Pa. Coal Co., in which the court stressed that the notification requirement was designed to protect miners and encourages rapid notification to enable MSHA to initiate an emergency response and ensure the preservation of evidence.

Consequently, the commissioners reiterated that, in determining whether an injury has the reasonable possibility to cause death, a mine operator should be guided by “principles that favor MSHA notification.” They noted that the focus must be on the facts available at the time of injury. They reasoned that the relevant evidence is that evidence available at the scene of the accident, at the time of the accident, and immediately following the accident.

Operators cannot depend on “hyper-technical opinions of a miner’s chance of survival” or wait for a doctor’s diagnosis that will not be received until after the 15-minute notification period passes. Additionally, operators need to focus on “the nature of the accident,” including “the mechanics of the injury.”

Here, the two commissioners found substantial evidence to support the ALJ’s finding of a violation. Key in this determination was the large amount of material (5 ft. wide x 10 ft. long x 1- to 3-in. thick) that fell from the 9-ft. roof; about 900 pounds of dense rock; the rock struck with enough force to knock the miner to the ground, knock his hard hat off, and cause injuries to both sides of his head and eyes; and personnel were initially concerned that the miner had head and neck injuries and tried to convince him to use a back board.

Given this information, available at the time of injury, it was determined that a reasonable person would have concluded that these injuries had a reasonable potential to cause death. The commissioners also offered criticism that the decision not to report to MSHA was made at the surface by personnel who had not observed the accident scene.