**FEDERAL MINE SAFETY AND HEALTHREVIEW COMMISSION**

**1331 PENNSYLVANIA AVE.,N.W., SUITE 520N**

**WASHINGTON, DC20004-1710**

 

 

 

BEFORE:   Jordan, Chair; Althen, Rajkovich, and Baker, Commissioners

** **

** **

**DECISION**

** **

BY: Jordan, Chair, and Baker, Commissioner

 

This matter arises under the Federal Mine Safety andHealth Act of 1977, 30 U.S.C. § 801 et seq. (2018) (“Mine Act”).  TheDepartment of Labor’s Mine Safety and Health Administration (“MSHA”) issued acitation to American Soda, LLC,[1]alleging that the operator failed to immediately contact MSHA, as required by30 C.F.R. § 50.10(b), after a miner suffered an injury which had a reasonablepotential to cause death.  American Soda contested the citation before aCommission Administrative Law Judge.  After a hearing on the merits, the Judgefound that the Secretary demonstrated that the operator violated the mandatorysafety standard.[2] 43 FMSHRC 477 (Nov. 2021) (ALJ).  American Soda then filed a petition fordiscretionary review, which the Commission granted.   

 

The Commission vote is split on whether to affirm thedecision of the Judge.  We, Chair Jordan and Commissioner Baker, write firstand vote to affirm the Judge’s decision; the separate opinions of ourcolleagues follow.  In the absence of a majority decision, the Judge’s decisionshall stand as if affirmed.  *See**Pennsylvania Elec. Co.*,**12FMSHRC 1562, 1563 (Aug. 1990), *aff’d on other grounds*,**969 F.2d1501 (3rd Cir. 1992).

 

**I.              **** **

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**Factual and Procedural Background**

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**A.   ****Factual Summary**

** **

OnJanuary 31, 2020, at approximately 11:05 a.m., a section of roof fell atAmerican Soda’s underground trona mine in Sweetwater County, Wyoming.  Rock struck and injured miner Delbert Hauser.

 

Prior to the roof fall, Hauser had been operating abore miner.  The bore miner’s shear pin became damaged during active mining operations. Hauser backed the machine out from the cut.  Hauser then gathered his tools andattempted to make repairs at the front of the machine, in close proximity tothe recent cut and unbolted roof.  Miner Shane Dodge came over to assist.  Asthey were working, a section of the unbolted roof collapsed, striking Hauser.[3]  Tr. 259.  

 

Hauser further testified that a large slab of rockfrom the roof fell onto him, dislodged his hard hat, and drove him into theground.  An additional smaller rock subsequently struck him directly on hisunprotected head.  Hauser stated that the second rock “rang [his] bell prettygood.”  Tr. 128.  The larger rock tore the clothes on his back.  Tr. 129. Hauser testified that immediately afterwards, he was unable to see out of his swollenright eye and his left eye was full of blood and dirt.  Tr. 129.  Hauser couldfeel blood weep from a gash on the back of his head.  Tr. 133.  Hauser believedthat his body was going into shock.  Tr. 130.  Hauser gathered himself andmoved to the front side of the bore miner.  He testified that when one of his fellowminers saw the extent of his injuries, he observed the co-worker vomit.  Tr.131.     

 

Dodge testified that after the fall he saw Hauserlying on the ground, without a hard hat.  Tr. 209.  Dodge testified that upongetting up, Hauser appeared “dazed and confused,” had a gash on the back of hishead and kept on saying “I’m all right.”  Tr. 199.  Neil Mattinson, theproduction foreman, and Wendalle Boyd, a crew member, were standing by the rearof the bore miner when the roof fell.  Mattinson called the hoistman and toldhim that Hauser had been struck by a rock, and needed an ambulance.  Tr.259-60, 278-81.  Although Dodge, Mattinson, and Boyd were in the area when theroof fell, no one testified to seeing the roof fall or the size of the rocksthat hit Hauser.  

 

Hauser’s fellow miners treated him on the scene with afirst aid kit, bandaging his head and providing an ice pack.  Hauser reportedlyrefused to be placed on a backboard or in a cervical collar.  Hauser testifiedthat he has little memory of these events.  Tr. 129-32.  His fellow minerstestified that he appeared to be coherent.  Mattinson and Dodge traveled in themantrip with Hauser to the hoist, a journey of 20 to 30 minutes.  Hauser thenwalked onto the hoist and rode another three to five minutes to the surface. 

Shawn Marshall, the mine’s operations manager, was onthe surface when he was notified that Hauser had been injured in a rock fall underground. Marshall did not ask about the size of the fall.  He told Jamie McGillis, anemployee trained in first aid, that she should meet Hauser.  McGillis spokewith Hauser when he returned to the surface, but did not observe his headinjury as it was bandaged.  Marshall observed Hauser walking on his own at thesurface and did not believe that he was going to “succumb to his injuries.” Tr. 184.  

 

 Hauser was evacuated by ambulance to the local hospitalwhere medical personnel used three or four staples to close the wound on theback of his head.  Tr. 135, 314.  A CT scan of Hauser’s head revealed that hisright eye orbital socket was shattered.  Hauser later underwent eye surgery atthe University of Utah Hospital in Salt Lake City.  Tr. 136-38.  

 

On the day of the incident, between 11:10 a.m. and11:30 a.m., Michael Crum, a health, safety, environment and quality manager, wasnotified that Hauser was being transported out of the mine after suffering aninjury.  Tr. 343.  Crum received an update that Hauser had been struck by aroof fall, and suffered a head laceration, but was conscious and able to walk.  Tr.305, 342.

 

Crum did not see or speak to Hauser before he left onthe ambulance to the local Rock Springs hospital.  Tr. 307, 313-14.  Instead, Crumtalked to Marshall, who stated that when he observed Hauser on the surface,Hauser appeared coherent and walked himself to the ambulance.  Tr. 307-08.  Accordingly,Crum decided that Hauser’s injuries did not have a reasonable potential tocause death and therefore, did not report the event to MSHA. Tr. 308, 341-42. Prior to his determination, Crum did not talk to the miners who were in thevicinity of the roof fall when it occurred (Boyd, Dodge, or foremanMattinson).  Tr. 346-47.

 

Marshall traveled to the hospital.  Per Crum’sinstruction, Marshall asked an attending doctor whether Hauser’s injuries werelife threatening.  According to Marshall, the doctor responded that theinjuries were not.  Tr. 173, 317.  Marshall informed Crum.  

 

Back at the mine, Mattinson, along with Tyler Hanks,the shift foreman, traveled underground to perform an investigation, includingmeasuring the area from which the rock fell.  Hanks determined that it wasapproximately five feet wide, by ten feet long, and one to three inches thick. Mattinson testified that the rock that fell was mainly trona, which is verydense and hard.  After the investigation was complete, mining resumed.  Had theaccident been reported to MSHA, the Mine Act would have required that theoperator preserve the scene for investigation.

 

On February 1, 2020, the next day, MSHA received an anonymous report that a roof fall at themine had injured a miner.  Inspector Rodney Gust travelled to the mine toinvestigate.  Gust was unable to measure the material that fell because theoperator did not preserve the accident scene.  However, based on the impressionin the roof, nine feet above the ground, it was obvious from where the materialoriginated.  The resulting void was approximately five feet long, twelve and ahalf feet wide, and one to three inches thick.  Tr. 37, 67.  Inspector Gust  concludedthat approximately 800 to 900 pounds of material fell from the roof.  Hedetermined that based on the information known to the operator immediatelyafter the accident, MSHA should have been called. 

On February 4, 2020, Gust issued Citation No. 9475179to the operator for an alleged violation of 30 C.F.R. § 50.10(b).  Gust testified thatconcussions and blunt force trauma to the head, neck and upper torso have areasonable potential to cause death.   

 

Hauser testified at the hearing that he has continuedto suffer from a variety of disabling ailments including a constant migraine,occasional nausea, short term memory loss, vision problems, neuropathy in hisfingers, dizziness, and balance issues.  As a result of the injuries, Hauser testifiedthat he walks with a cane, is unable to watch TV for more than a short periodof time, drives less, and spends a significant amount of time sitting in thedark.  Tr. 138-39.

 

**B.   ****The Judge’sDecision**

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On November 9, 2021, the Judge issued a decision affirmingthe citation.  The Judge found that Hauser was hit in the head and back by arock with enough force to knock him to the ground.  No one at the mine saw theroof fall or knew the exact size of the rock that hit Hauser in the head, butthe size of the void in the roof from which the material fell was substantial. The rock knocked off Hauser’s hardhat and caused serious injuries to both theback of his head and right eye.  Mattinson, the crew foreman, became aware ofthe injury directly after it occurred.  Despite this information, MSHA was notcalled on the day of the incident.

 

The Judge recognized that “getting hit on the head bya heavy object can lead to an intracerebral hemorrhage, *i.e.*bleeding inthe brain” and that “[a]dverse symptoms of a brain hemorrhage will often not bevisible within 15 minutes of an accident.”  43 FMSHRC at 489-90.

 

The Judge foundthat given the facts, a reasonable person, presented with a similar situation,would have erred on the side of calling MSHA within 15 minutes.  *Id*. at489.  The Judge noted that the “extremely short [15-minute] timeframe” requiresa mine operator to make a determination “based on a very limited knowledge ofthe facts surrounding the injury and the nature of the accident.” * Id.*at 489.

 

**II.           **** **

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**Disposition**

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            TheMine Act requires that “[i]n the event of any accident occurring in any coal orother mine, the operator shall notify [MSHA] . . . and shall take appropriatemeasures to prevent the destruction of any evidence which would assist ininvestigation of the cause or causes thereof.”  30 U.S.C. § 813(j).

 

In response to a series of multiple fatality mining accidents,Congress passed the Mine Improvement and New Emergency Response Act of 2006(the “MINER Act”), which included an update to this section.  S. Rep. No.109-365, at 1-2, 9.  Congress added the specific requirement that mineoperators notify MSHA within 15 minutes of an accident.  30 U.S.C. § 813(j) (“within15 minutes of the time at which the operator realizes that . . . an injury . ..of an individual at the mine which has a reasonable potential to cause death,has occurred”).

MSHA promulgated an emergency safety standard,incorporating the 15-minute notification requirement at 30 C.F.R. § 50.10.  Section50.10(b) states, in pertinent part, that “[t]he operator shall immediatelycontact MSHA at once without delay and within 15 minutes . . . once theoperator 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 tocause death.”

 

            Asthe Third Circuit recognized: 

 

[I]t is plain that the notification requirement wasdesigned to serve the Mine Act’s unyielding purpose of protecting miners byencouraging rapid notification, thereby allowing MSHA to effectively initiatean emergency response and to ensure the preservation of evidence for use ininvestigations.  The notification requirement should be interpreted toeffectuate that purpose.

 

*ConsolPa. Coal Co., LLC v. FMSHRC*, 941 F.3d 95, 106 (3rd Cir. 2019).  In*Consol*,the Third Circuit stated that in determining whether an injury has thereasonable possibility to cause death, a mine operator should be guided byprinciples that favor MSHA notification.  In accordance with that principle: 

 

First, reasonable doubts mustbe resolved in favor of notifying MSHA; second, liability must be assessedbased on whether a reasonable person in the circumstances would view theinjuries as having a reasonable potential to cause death; third, the totalityof the circumstances must be considered; and fourth, the focus must be on theinformation available around the time of the injury, so post-hoc medicalevidence is less probative. 

 

 *Id*.at 103.  In total, the notification requirement “mustbe analyzed on an objective basis, asking whether a reasonable person in thecircumstances would view a miner’s injury as having a reasonable potential tocause death.”  *Id.*at 107.   

 

The Commission has stated that given the need forprompt notification, “the nature of the accident” is highly relevant indetermining whether an event is reportable.  *Signal Peak Energy, LLC*, 37FMSHRC 470, 475 (Mar. 2015) (citations omitted).  Thenature of the accident includes the mechanism of the injury.  *Id.* at475-76.  

 

The Commission reviews a Judge’s findings regardingthe violation in accordance with the substantial evidence standard.  30 U.S.C.§ 823(d)(2)(A)(ii)(I) (the Commission is bound by the terms of the Mine Act to applythe substantial evidence test when reviewing a Judge’s factual determinations).* *Substantial evidence means “such relevant evidence as a reasonable mindmight accept as adequate to support [the Judge’s] conclusion.”  *Rochester& Pittsburgh Coal Co.*, 11 FMSHRC 2159, 2163 (Nov. 1989).  Substantialevidence may be met by “reasonable inferences drawn from indirect evidence.”  *JimWalter Resources, Inc.*, 28 FMSHRC 983, 989 (Dec. 2006).  Substantialevidence means “more than a scintilla but less than a preponderance.”  *PattisonSand Co., LLC v. FMSHRC*, 688 F.3d 507, 512 (8th Cir. 2012).  

            Aswe will demonstrate, the Judge’s finding that a reasonable person would haveconcluded that, based on the totality of the circumstances and informationavailable at the time of injury, that Hauser’s injuries had a reasonablepotential to cause death, is supported by substantial evidence in the record.

 

It is undisputed that a large amount ofmaterial from the roof fell.  The area from which the fall occurred was at minimumfive feet wide, ten feet long, and one to three inches thick.  Tr. 35-37; 208,269, 291-92; Jt. Ex. 31.  The roof was approximately nine feet high.  InspectorGust estimated that based on his own measurements, approximately 800 to 900pounds of rock was dislodged in the fall.  Tr. 63.  Foreman Mattinson testifiedthat that the rock that fell was mainly trona, which is “very dense . . . wayharder than coal.”  Tr. 298-99.  Mattinson heard the roof fall and assisted intending to Hauser’s resulting injuries directly thereafter. 

 

Although it was unknown how much of thisroof material hit Hauser, the undisputed evidence demonstrates that Hauser wasstruck with enough force to knock him to the ground, knock his hardhat off, andto cause injuries to both sides of his head.  Specifically, a rock cut open theback of his head and his eye socket shattered.[4]  Hausertestified that first a large rock hit him, knocked off his hardhat and drovehim into the ground; subsequently a second smaller rock hit his unprotectedhead.  Tr. 127-28, 137.  Dodge corroborated that the fall knocked off Hauser’shardhat.  Tr. 127, 209.  The wound on the back of Hauser’s head was deep enoughto require staples to close it.  His eyes appeared bloodied and swollen.  Mattinson immediatelywent to get the first aid kit and then called to the surface to get Hauser an ambulance. Tr. 259.  Mattinson thought Hauser had a possible head and neck injury andtried to convince him to get onto a backboard.[5] Tr. 263.  Taken together, these facts would cause a reasonable person toconclude that Hauser was struck by a rock with considerable force directly inthe head.  As the Judge stated, because no one knew the size of the rock thathit Hauser in the head, a reasonable person should have resolved doubts on theside of notification.[6] 

It is well established that blunt force trauma to thehead can cause an injury with a reasonable potential for death.  In fact, the preamble to the safetystandard at section 50.10 notes that the head injuries that result from rooffalls are the types of injuries that are known to cause a reasonable potentialfor death.  *See* Emergency Mine Evacuation, 71Fed. Reg. 71,430, 71,434 (2006) (“Based onMSHA experience and common medical knowledge, some types of ‘injuries whichhave a reasonable potential to cause death’ include concussions . . . majorupper body blunt force trauma . . .  [t]hese injuries can result from variousindicative events, including . . . roof instability”).  As the Judgestated, “getting hit on the head by a heavy object can lead to an intracerebralhemorrhage, *i.e.*bleeding in the brain” and that “[a]dverse symptoms ofa brain hemorrhage will often not be visible within 15 minutes of an accident.”[7], [8]  43FMSHRC at 489-90. 

 

Additionally, we note that the record evidence demonstratesthat the operator failed to consider the totality of the circumstances when itdetermined that the accident was not reportable pursuant to section 50.10(b).   Michael Crum testifiedthat the responsibility to call MSHA at American Soda lay with the safety group,which included himself.[9] Tr. 319, 337-38.  Crum was notified that Hauser was being brought to thesurface after suffering an injury in a rock fall, but was conscious andcoherent.  Tr. 305.  Crum did not personally observe Hauser, but instead reliedon Marshall’s observations.  Crum testified that Marshall informed him thatHauser was talking, coherent and exited the mine under his own power.  Tr. 307-08. Accordingly, he did not believe that the injury was reportable.   He further testifiedthat he waited to hear a report from Marshall from the emergency room doctorbefore making a final determination.  Tr. 353.  Crum’s decision to wait beyond the15-minute window to hear a doctor’s diagnosis from Marshall runs contrary tothe Commission’s requirements for the mine operator to make a determinationimmediately, prior to a clinical evaluation, and to resolve reasonable doubtsat the time of the incident in favor of notification.[10]

 

Furthermore, Crumtestified that he *did not* consider the nature of the accident whenmaking his determination.  Tr. 351.  Crum testified that he did not talk to theminers who were in the vicinity of the roof fall and treated Hauser’s injuriesat the scene.  Tr. 346-47.  Crum’s own testimony that he did not consider thetotality of the circumstances, including the mechanism of the injury, isadditional evidence supporting the Judge’s finding that the operator violatedthe safety standard.[11]  Had Cruminquired about the nature of the accident, as is required by the mandatorysafety standard, he would have discovered that there was a void in the unboltedroof measuring at least 5 feet by 10 feet.[12]  

 

As the Judgestated, the operator “should have known that a significant blow to the headcould reasonably be expected to be fatal even when the injured miner was notdisplaying serious symptoms immediately following the accident.”[13]  43 FMSHRCat 490.

 

**III.         **** **

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**Conclusion**

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It is clear that the Judge’s relevant findings aresupported by substantial evidence, including his ultimate determination that areasonable person would have notified MSHA within 15 minutes in thesecircumstances.  In so finding, the Judge correctly applied Commission case law concerningthe safety standard at section 50.10(b).  Accordingly, we vote to affirm his decision.

 

 

 

/s/ Mary Lu Jordan

Mary Lu Jordan, Chair

 

 

 

/s/ Timothy J. Baker

Timothy J. Baker, Commissioner

 

 

 

**CommissionerAlthen:**

** **

            30C.F.R. § 50.10(b) requires operators to notify the Mine Safety and HealthAdministration (“MSHA”) within 15 minutes of the time the operator knows orshould know that an accident has occurred involving an injury of an individualat the mine which has a reasonable potential to cause death. 

 

            DelbertHauser was struck on the back, causing him to fall to the floor.  A rock ofunknown size caused a laceration in his scalp.  He also suffered an eye injury.[14]  During theperiod before the miner was transmitted from the mine to the hospital forstitches to his head, he interacted directly with five other miners, all ofwhom had first aid training, and one of whom was the first aid person on themine rescue team.  Each of the miners treated the accident as serious and tooksteps to make sure Hauser’s life had not been threatened.  However, none ofthem—not one—testified in a manner that supports a reasonable potential for death.[15]

 

Indeed, the miner from the mine rescue team who went to thecollar when she learned of the situation testified directly and with convincingreasons that she did not think there was reasonable potential for death.  Asshown below, Hauser’s fellow miners acted with dispatch to assure themselvesthat Hauser was not facing a reasonable possibility of death.

 

**I.**

** **

**Testimony of Witnesses to Hauser’sCondition**

 

**A.   Shane Dodge—Hourly UndergroundProduction Employee**

 

            Shane Dodge had received firstaid training.  Tr. 196, 210.  While working near Hauser, Dodge heard the rooffall.  The fall hit Hauser on the back, knocking him down, but Dodge saw Hauserget up immediately after the fall.  Tr. 199.  Dodge testified that Hauserlooked slightly confused but kept saying he was all right.  When Dodge saw acut on the back of Hauser’s head, he thought it was just a cut that probablyneeded stitches.  Tr. 200.

 

            After standing immediately,Hauser stepped over a trim chain bar that was three feet high.  Hauser tookthis step over the chain bar under his own power with Dodge “just, kind of,spotting him.”  Tr. 201.  Hauser then walked 200 feet or more under his ownpower.  Dodge and other miners (Wendalle Boyd and Neil Mattinson) asked himquestions to ensure he was all right.  Hauser answered the questionscorrectly.  They offered Hauser a backboard, but he refused it.  Tr. 202. Hauser said, “I ain't getting on a f---ing backboard.”  *Id.*

 

They put a bandageon his head that immediately stopped any bleeding.  Tr. 203.  Hauser walkedhimself into the cage for transportation to the surface.  Dodge described theinjuries as “They were just, I mean, very – nothing too crazy – cuts.”  Tr.209.  Testifying to the general diagnosis by the crew, Dodge said, “He waswalking.  He was talking.  I mean, he was being stubborn just like he alwaysis.  Like, everything was normal as if he just, you know, just got mildly hurt,I guess.”  Tr. 210.

 

**B.   WendalleBoyd—Shuttle Car Operator**

 

            Wendalle Boyd was a shuttlecar operator who heard the rock fall.  As he walked toward the area, he sawHauser.  There was some blood on Hauser’s head, but Boyd referred to the cut asa “scratch on his head.”  Tr. 216.  Boyd got a first aid kit.  When hereturned, Hauser was walking by himself toward the cage.  Bandaging the cutstopped any bleeding from the cut.

 

            Boyd and other miners askedHauser questions as part of a concussion protocol.  Hauser answered thequestions correctly.  Tr. 217.  As other miners were getting on the cage forthe surface, they continued to ask him questions.  Boyd testified that therewas no degradation in Hauser’s condition and that he responded appropriately. He sounded “fresh.”  Tr. 219.

 

**C.   Neil Mattinson—MineOperations Forman**

 

            Neil Mattinson,who had first aid training, testified he was nearby when the roof falloccurred.  He heard Wendalle Boyd ask if everyone was okay, and they answered,“Yes.”  Tr. 259.  When asked how Hauser seemed, Mattinson testified that he wasdriving the mantrip and Hauser was fine.  Tr. 262.  He repeated that Hauserseemed “fine.”  Tr. 295.

 

            Mattinsonasked Hauser to let them place him on a backboard or to let them give him aC-collar, but Hauser repeatedly refused.  Mattinson asked Hauser questions thatHauser answered correctly.  They checked Hauser’s eyes, and Hauser had regular,undilated pupils.  Hauser was acting cranky which, according to Mattinson, wasnormal for Hauser.  Tr. 264.

 

            Mattinsontestified,

 

Basically, I feltit's a first-aid injury.  It's some staples.  He’s got a cut on his head.  Hiseye’s a little swollen, nothing of significance.  Everything seemed prettynormal.  He seemed normal.  His color was good, didn’t look like he was inshock or going into shock.  He was talking to me the whole way out. That’s it.

 

Tr. 265.

            As other witnessestestified, Mattinson said Hauser got out of the mantrip by himself and walkedinto the cage to ride to the surface.  Tr. 266.  Under cross-examination, Mattinsontestified that only 3 seconds passed between the sound of the roof fall and himseeing Hauser on his feet.  Tr. 277.  Mattinson told the hoistman that Hauserwould probably need a couple of stitches, and that Mattinson never saw anythingthat would cause him to call the hoistman back.  Tr. 265.

 

            Mattinson testified hehad called it a first-aid injury.  Tr. 286-87.  Asked to explain what he meant,he testified,

 

And I’m the notmaking light of the – it’s not a big deal.  It’d be like your kid having acrash on their bike, and they got a wound.  And you clean it.  You put somewrap on it.  And then if it’s deep enough, you’re going to take them to thehospital to get some stitches.

 

Tr. 287.

 

            Mattinson, who testified hewas familiar with the conditions of shock, testified Hauser did not appear tobe going into shock.  Mattinson explained that he formed that opinion of Hauserby:

 

Just him talkingto me, answering my questions that I had.  I was checking – I was looking atthe color of his skin.  His breathing was normal.  He didn’t have – he wasn’t,like, in a panic.  He seemed normal, and he could answer all the questions thatI was asking him, and he seemed aware of his surroundings.  

 

Tr. 295.

 

Mattinson furthertestified, “I was driving the man trip, and him and I were havingconversations, and he seemed perfectly fine. He was engaged in theconversations. That’s one of the ways I was monitoring him on the way out.” Tr. 295.

 

**D.   Shawn Marshall—Operations Manager**

 

            ShawnMarshall served on the mine rescue team for ten years.  Tr. 156.  He was in themine office when a safety representative informed him of the accident.  Hereceived information that Hauser was walking onto the cage to exit the mine atthe surface.  Tr. 159.  Marshall went to the mine collar and saw Hauser walkoff the cage under his own power.  Tr. 161.  Marshall testified that Hausershowed no sign of unsteadiness or needing any assistance.  *Id*.  

 

            Whenasked on examination to describe his feelings about Hauser’s condition based onhis observations, Marshall testified:

 

Q. While you were talking to him, what was yourimpression of his overall condition? 

A.  Good.  Good.  I mean, I observed the black eye,the cut on his eye.  He had a bandage on his head. It was white.  Wasn’t nosigns of blood or anything.  The eye wasn’t bleeding.  He could talk.  He wasstanding upright.  He wasn’t hunched over.  He wasn’t, you know, exhibiting anysigns of internal damage or anything.  So, I felt real good about him.

 

Tr. 162-63.

 

            Marshallfurther testified that Dave Stephenson, the Mine Safety Representative, andJamie McGillis, a mine rescue team’s first aid person, were also at the collarwhen Hauser arrived on the surface.  Tr. 161-62.  Hauser was walking on hisown.  Hauser started to tell Marshall what had happened and to apologize forit.  Tr. 162.

 

            Atthat point, Hauser walked to the ambulance and entered it himself, walking up aladder and sitting down.  Marshall then called the site manager and told himHauser had headed to the hospital, probably for stitches.

 

            Then,Marshall saw the General Mine Manager, Mike Crum, in the office.  Crum hadalready talked to Dave Stephenson.  Marshall told Crum that Hauser would be allright.   Marshall went to the hospital, where nothing occurred to change hismind about Hauser’s condition.  In looking at the exhibit showing thelaceration on Hauser’s head, Marshall testified: 

 

Q. On the secondphoto for the back of his head, do you have any sense of how long thatlaceration to his scalp is?

A. Roughly twoinches.

Q. Was it deep?

A. It didn'tappear to be. But, I mean, the picture says a lot.  It’s not a big open, gapingwound.  It’s a cut to the scalp.  I mean, there's not a lot of muscle oranything there.  It’s just skin, so.

 

Tr. 171.

 

             Marshall’s testimony isreplete with his observation that Hauser did not appear to be in a conditionthat would indicate a danger to Hauser’s life.  

 

            **E.   JamieMcGillis—Underground Utility Crew Member**

 

             McGillis had worked forthirty years at the mine.  At the time of the incident, she worked on anunderground utility crew.  McGillis was the first aid person on the mine rescueteam and had considerable ongoing training for that position.  She was at thecurtain when Hauser arrived on the surface.  She testified that she and Hauserexchanged niceties.  Then, McGillis went with Hauser to the ambulance.  Tr.226.  Hauser was coherent and able to understand everything that was happening. Tr. 226-27.  McGillis did not see any indication of an internal injury. 

 

Responding to aseries of questions from counsel, she testified: 

Q. Any sense ofwhat his respirations were?

A. He breathednormally.

Q. And how aboutcapillary refill?

A. I believe theEMT that was in the ambulance did the capillary refill.  We put the oxygen –oximeter on his finger.

Q. And did thatgive a low result, or did that give a normal result?

A. It was normal.

Q. And was he ableto follow commands?

A. He followedcommands.  He talked to us, was coherent, knew where he was at that time.

 

Tr. 243.

 

            Finally, McGillistestified that while she was with Hauser, she did not think that his injuriesor symptoms had a reasonable potential to cause death.  Tr. 245.

 

**F.   MichaelCrum—Health, Safety, Environment, and Quality Manager**

 

            Due tohis position, Michael Crum had received first aid training.  Tr. 303.  He wentto the mine office for more information when he learned of the accident.  Uponreaching the office, he learned that Hauser was conscious and coherent.  Tr.305.[16] Crum went to the collar.  However, Hauser had left before Cum got there.  

 

Crum talked toShawn Marshall, who told Crum of his observations.  Tr. 307-08.  Crum reliedupon his conversations with another miner, Dave Stephenson, and Marshall, whohad talked with the other witnesses.  Based upon those reports, including,among other things, that Hauser was upright, talking, coherent, had walked fromthe cage to the ambulance, and got in the ambulance by himself, Crum concludedthat they had not seen any symptoms indicating a reasonable potential fordeath.  It is appropriate to observe that Crum based his decision uponfirsthand information from Stephenson and Marshall, recapitulating all thepreceding facts.[17]

 

            Indiscussing his decision regarding calling MSHA, Crum explained: 

 

[that Hauser] waswalking . . . was coherent . . . never lost consciousness . . . had alaceration to his head, had some scrapes on his back, got out, walked to theJeep.  He was, really, kind of, directing his own care, according to theminers that were there.  He walked onto the cage, walked off the cage,walked in – you know, got himself into the ambulance.  At no time was anybody –at that point, no one thought that his injuries were life-threatening,including [the operator’s] . . . medical responder.

 

Tr. 332 (emphasisadded).

 

            Oncross-examination, MSHA’s attorney asked Crum to summarize why he did not thinkhe needed to make a 15-minute call.  Crum responded:

 

The information we received from the hoistman fromunderground that Del was up, he was moving, he was conscious, he was getting inthe Jeep, and they were bringing him out.  There was nothing that was said thatwas conveyed by Neil Mattinson, by the hoistman, by Jamie McGillis, by eitherShawn Marshall or Dave Stephenson that indicated that we had an injury that hadreasonable potential to cause death.

 

Tr. 342-43.

 

            MSHA’s attorney then elicitedtestimony by asking if the next piece of information Crum received was a callor a text from Shawn Marshall from the hospital saying that the doctor saidthat Hauser’s injuries were not life-threatening.  The attorney askedspecifically, “Is that the next piece of information?”  Tr. 345-46.  Crumaffirmed that he believed it was.  The doctor confirmed that the injury was notlife-threatening.

 

**II.**

** **

**Disposition**

** **

For injury reporting violations, the Commission has anestablished formula for determining whether an operator must inform MSHA of theinjury.  Examining the totality of the circumstances, the Commission mustdetermine if a reasonable person would conclude that the injury had areasonable potential to result in death.  If reports on the severity of anaccident indicate a reasonable potential for death, the operator should err onthe side of caution. 

 

Regarding the scope of the probative evidence,operators need not, and indeed cannot, perform an exhaustive accidentinvestigation or medical exam in 15 minutes but instead, are required toattempt to assess the situation in good faith and without delay.  *See**ConsolCoal Co.*, 11 FMSHRC 1935, 1938 (Oct. 1989).  Thus, the “totality of thecircumstances” encompasses only readily available information, such as anyobservable indicators of trauma and, to a lesser extent, the nature of theaccident.  *Signal Peak*, 37 FMSHRC 470, 476 (Mar. 2015), *ConsolPennsylvania Coal Co.*, 40 FMSHRC 998, 1004 (Aug. 2018) (“***Of course,the primary information relevant to the analysis is the nature of the injuryand the miner’s condition***”).  The primacy of the miner’s condition isvital in this case because the ALJ gave virtually no consideration to theminer’s condition, as reported by a host of miners.  Instead, the ALJ based hisdecision solely on the absence of evidence over the size of a rock that causeda superficial cut to Hauser’s head.  

 

**A.   ****Totality of theCircumstances**

 

Asthere were no first-hand witnesses to the instant when the fall of rockoccurred, the exact nature of the accident is unknown.  However, combining thetestimony of the miners, the only fair summary of the facts is that someportion of the roof struck Hauser in the back with enough force to cause him tofall.  A separate rock of unknown size caused a two-inch superficial cut on thetop of his head.  Hauser immediately stood up on his own without any loss ofconsciousness and stepped over a three-foot high barrier.  He told anotherminer that he was all right and walked by himself hundreds of feet to a cagefor the surface.  During that time, miners quickly stopped any bleeding byapplying a bandage. 

 

Counsel for the Secretary stated in her opening statementthat Hauser “brushed the rocks off of his body.”  Tr. 5.  Shane Dodge, thefirst miner to see Hauser, was asked if he saw Hauser brush rocks off hisback.  He testified, “Yeah, when he was getting up, there were, like, teenytiny rocks coming off of him, yeah, nothing too crazy.”  Tr. 209.  

 

Of course, the first question in investigating anaccident is: “How is the miner?”  Here, multiple experienced miners with firstaid training and, cumulatively, dozens of years of mining experience, testifiedthat Hauser needed medical attention for a cut on his head but was not so hurtas to be in any potential danger of death.  His condition did not create aconcern of a reasonable potential for death.

 

     Hauser’scolor was good.  Tr. 265.  His pupils were normal.  Tr. 264.  His breathing andoxygenation were fine.  He talked coherently.  Tr. 305.  He adamantly refusedthe offer of a backboard or any other assistance.  Throughout the walk and theride to the surface, miners asked him questions to assure themselves of hismental condition.  Hauser answered the questions appropriately.  At thesurface, the mine emergency first aid specialist asked him questions and sawhim step into an ambulance.  She did not believe he was in danger of death.  Tr.234.  No miner with whom he interacted testified that he/she believed there wasa reasonable potential for death or that he/she had any fear for Hauser’s lifeat any point.[18]

The *Secretary’s counsel* chose tobring out during cross-examination the treating doctor’s opinion that there was*not* a reasonable potential for death.  Tr. 345.  That testimony, whileof minor probative value by itself, added to the overwhelming evidence thatHauser’s condition did not create a reasonable possibility of death.  Thedoctor’s medical examination revealed by the Secretary did add to the quantumof evidence that the experienced miners who helped Hauser and cumulativelyadvised Crum were correct that the injury did not create a reasonablepossibility of death, and that Crum acted reasonably in accepting theiropinions.[19] 

 

The cumulative testimony is that Hauser was conscious,aware of his surroundings, carrying on normal conversations, able to answerquestions typically, walking and climbing steps by himself, had good color, didnot have memory problems, and was not nauseous or feeling sick.  In short, noneof the reasonable miners, all with first aid training, had any concern thatHauser had a reasonable potential for death.  Michael Crum, the manager and responsibleofficial, decided not to call MSHA based on all this information regardingHauser’s physical condition.[20] The critical question is whether Crum exercised the judgment of a reasonableperson when he decided not to call MSHA.  He did.  The evidence noted above andimmediately below demonstrate that the reports from the scene by a host ofexperienced miners showed that there was no reasonable cause to believeHauser’s condition posed a reasonable potential for death.

 

**B. Reasonable Potential to Cause Death**

 

In this case, the views of many reasonable personsweigh fully, indeed outcome determinatively, against a finding of a violation. Five miners saw Hauser after the accident and were able to examine the natureof his injuries and his general condition.  No one claims that any miner actedin bad faith or gave erroneous testimony.  Moreover, it is indisputable that afact-finder could only conclude that the miners acted reasonably and withdispatch.  Each took careful note of Hauser’s situation and treated himappropriately.  From their testimony, it is beyond doubt that none of thesefive reasonable persons viewed the injuries as having a reasonable potential tocause death.[21] 

 

These five reasonable and experienced minerscharacterized the injuries as (1) “everything was normal as if he just, youknow, just got mildly hurt.”  Tr. 210.  (2) Hauser seemed “fresh.”  Tr. 219. (3) “Basically, I felt it’s a first-aid injury.  It’s some staples . . . Heseemed normal.  His color was good, didn’t look like he was in shock or goinginto shock.  He was talking to me the whole way out.”  Tr. 265.  (4) “Hewasn’t, you know, exhibiting any signs of internal damage or anything.  So, Ifelt real good about him.”  Tr. 162-63.  (5) “He breathed normally [his oxygen]was normal [h]e followed commands [and] was coherent.”  Tr. 244.

 

None of the five identified any indicia of an injurythat would lead a reasonable person to believe Hauser suffered a potentiallyfatal injury.  Our colleagues do not even meaningfully discuss the case fromthe standpoint of Hauser’s condition.  The testimony revealed that Hauser stoodimmediately, stepped over a three-foot high barrier, spoke coherently (indeedforcefully to Shane Dodge), had a cut that stopped bleeding with theapplication of a bandage, walked by himself, answered questions quickly andcorrectly, climbed steps into the transport, did not exhibit dizziness ornausea, had good skin color, normal eye dilation, and a good oxygen level.  

 

Chair Jordan and Commissioner Baker correctly statethat the notification requirement “must be analyzedon an objective basis, asking whether a reasonable person in the circumstanceswould view a miner’s injury as having a reasonable potential to cause death.”  SlipOp. at 5, citing *Consol Pa. Coal Co., LLC v. FMSHRC*, 941 F.3d 95, 107(3rd Cir. 2019).  They do not claim and cannot cite evidence to assert that anyexperienced and trained miners witnessing Hauser’s condition were unreasonable,partly or in the aggregate.  The ALJ did not find that their testimony lackedcredibility.  Most importantly, they are the miners who reported Hauser’scondition to Crum.  He based his decision not to call MSHA on their first-hand,knowledgeable evaluations.  Tr. 307.  It was undoubtedly objectively reasonablefor Crum to rely upon the miners’ reports in making his decision.  

 

Elsewhere, Chair Jordan and Commissioner Bakererroneously assert that this opinion “reweighs” the evidence.  Slip Op. at 7 n.6. This opinion “recites” the evidence and finds that the direct eyewitnesstestimony of multiple qualified witnesses as to Hauser’s actual conditionrebuts, as a matter of law, the ALJ’s conclusion that, because no one had foundin 15 minutes the specific piece of debris from the crumbled rocks at the scenethat caused a superficial and easily stitched cut on Hauser’s head, the operatorshould have found a reasonable possibility of death.  The ALJ’s view disregardsthe unanimous opinion of every miner who saw Hauser that there was ***not***a reasonable possibility of death. 

 

As the testimonywas uniform in assessing Hauser’s condition, it would be improper for theCommission to craft uncertainty where none existed.  Before rebuking theoperator for failing to err on the side of caution by reporting an injury, theCommission must be able to identify specific fact-based reasons that shouldhave caused miners to fear for Hauser’s life.  Uninformed fears by a Judgehundreds of miles from the scene months after the accident and not taking into considerationevidence of the miner’s condition is wholly inadequate.  Reasons for doubtarise from the facts of the case—witnesses’ testimony and other evidence.  Suchdoubts depend upon whether reasonable persons viewed the injuries as having areasonable potential to cause death and the totality of the circumstances.[22]

 

The ALJ issued aninsupportable decision without medical testimony, opinion, or support.  Neitherthe ALJ’s decision nor the opinion of Chair Jordan and Commissioner Bakerattempts to cite any medical expert or any medical evidence that every cut on ascalp creates a potential for death.  Only pebbles or small pieces of rockremained at the scene.  The ALJ concluded on his own without supportiveevidence that every cut from an impact to the head, superficial or not, createda reasonable potential for death.  He cannot and does not cite any authorityfor that proposition.  Thus, his conclusion had no evidentiary, scientific, ormedical basis.[23]

 

Lastly, althoughthe circumstances of the accident are less relevant to the analysis, I notethat the 15-minute time frame is brief and often does not leave any time forminers to consider the full circumstances of the accident.  Indeed, theimmediately identifiable facts of the accident do not establish that apotentially fatal accident occurred.  As recited above, witnesses withinseconds of the incident saw Hauser brush off small rocks or pebbles, stand, goover a barrier, answer questions coherently, and obtain relief from a small cuton his head by application of a bandage.  Taken as a whole, the testimonydemonstrates that none of the witnesses who examined him and bandaged thesuperficial cut on his head considered there was a reasonable potential fordeath, and that Crum reasonably relied upon them.

 

**III.**

** **

**Conclusion**

 

            Theevidence demonstrates that substantial evidence does not support a finding thatHauser’s injury created a reasonable potential of death.  No medical evidencesupports a finding that every cut creates a reasonable potential for death. The overwhelming weight of the evidence demonstrates that substantial evidencedoes not support a finding that Hauser faced a reasonable potential for death. 

 

The finding of a violation should be reversed.

 

 

 

/s/ William I. Althen

William I. Althen,Commissioner 

 

 

 

 

**CommissionerRajkovich:**

** **

Operators generally have ten working days to reportaccidents, occupational injuries, or occupational illnesses to the Mine Safetyand Health Administration (“MSHA”).  30 C.F.R.       §§ 50.20, 50.20-1. However, if the operator knows or should know of an accident involving an“injury . . . at the mine which has a reasonable potential to cause death,” theoperator must notify MSHA within 15 minutes.[24] 30C.F.R. §50.10(b).  To determine whether this increased burden applies, the Commissionmust ask whether, based on the totality of information available at the time ofthe accident, a reasonable person would view the injuries as having areasonable potential to cause death.  *Consol Pa. Coal Co. LLC v. FMSHRC*,941 F.3d 95, 103 (3rd Cir. 2019).  There is no presumption that every headinjury is to be considered potentially fatal.  With that in mind, a reasonableperson could not have considered the information available at the time andconcluded that Delbert Hauser faced a reasonable prospect of dying due to hisaccident.  Accordingly, substantial evidence does not support the Judge’sfinding of a violation. 

 

Thetotality of information available to the operator[25] in theshort-term aftermath of the accident was as follows:

·       Mechanics of theAccident:During a roof fall, some amount of rock struck miner Delbert Hauser.  The sizeand weight of the rock that hit Hauser was (and still is) unknown.  The onlyinformation available regarding the force of the impact is that it was heavyenough to dislodge Hauser’s hardhat and knock him to the ground, but lightenough that he could push off the fallen rock and stand up.[26]  Tr. 127-28,186, 209.  

·       Physical Injuries: Hauser had atwo-inch cut on the back of his head, and one eye was swollen and bleeding. Tr. 129, 133, 199-200, 226-27, 233. 

·       Indications ofTrauma: Hauser was a bit dazed immediately after the accident (Tr. 199) but wasconscious, coherent, able to talk, and able to walk to the ambulanceunassisted.  Tr. 184, 226, 307.

 

Asdiscussed below, these facts are insufficient to reasonably suggest (or evenraise reasonable doubts regarding) a reasonable potential for death.  

 

Some types of injuries have been recognized as posinga reasonable potential for death, such as concussions, cases requiring CPR,limb amputations, major upper body blunt force trauma, or extendedunconsciousness.  Emergency Mine Evacuation, 71 Fed. Reg. 71,430, 71,434(2006).  While this list is non-exhaustive, it clearly indicates the standardis meant to address injuries that pose a reasonable risk of brain trauma,cardiac arrest, internal injury, or severe external blood loss.  Here, itcannot reasonably be argued that the visible injuries themselves (the headlaceration and swollen eye) were potentially fatal.  Accordingly, the questionis whether the totality of circumstances reasonably suggested a hiddenpotentially fatal condition such as brain trauma or internal injury. 

 

The facts in this case are significantlydistinguishable from other cases in which the Commission has found animmediately reportable injury based on the totality of circumstances.  In *Consol*,a miner was conscious and had a strong pulse, but had been crushed between twomulti-ton pieces of equipment, was in severe pain, could not move or feel hislegs, and had a distended stomach.  941 F.3d at 114.  In *Signal Peak EnergyLLC*, a miner had no obvious signs of concussion but had been propelled50-80 feet, had difficulty moving and breathing, and had a significant backprotrusion.  37 FMSHRC 470, 475 (Mar. 2015).  In *Cougar Coal Co.*, aminer was conscious and alert but had fallen 18 feet, hit his head on a powercenter on the way down, and had no pulse when he was first found.  25 FMSHRC513, 520 (Sept. 2003).  In each case, circumstantial facts regarding themechanics of the injury and the miners’ physical symptoms reasonably suggestedinternal bleeding, spinal injury, brain injury, and/or cardiac arrest.  

 

Here, in contrast, a miner was conscious and alert,had been hit in the head by a rock of unknown weight (heavy enough to knock himdown but not keep him down), and had a two-inch laceration on his head and aswollen and bloody eye.  While the accident was clearly painful and potentiallyserious, none of those facts, taken together or in concert, reasonably suggestinternal bleeding, brain injury or other potentially fatal conditions.[27]

Chair Jordan and Commissioner Baker emphasize theimportance of the mechanism of injury.  Slip Op. at 5, *citing Signal Peak*,37 FMSHRC at 475.  It is appropriate to consider the nature of the accident aspart of the totality of circumstances, and known facts regarding the mechanismof injury can carry great weight in some instances.  However, this is a verydifferent case from *Signal Peak*, in which the operator was aware thatthe miner had been thrown 50-80 feet.  37 FMSHRC at 475 n.10.  Here, theavailable information regarding the mechanism of injury did not reasonably implya reasonable potential for death, for the simple reason that *no usefulinformation regarding the mechanism of injury was available*.   

 

As the Judge conceded, all the operator had were“known unknowns” (43 FMSHRC at 489)—Hauser had been struck with some amount ofrock, but there was no way to determine from the physical evidence of the rockfall *how much* of the rock hit him, *i.e.* the force of the impact.[28]  All theoperator could know was that Hauser *could have*been struck withconsiderable force, and that is true of every unobserved impact injury. Section 50.10 is analyzed under a reasonable person standard.  *Consol*,941 F.3d at 107.  A reasonable person would not assume every unobserved impactinjury carries a reasonable potential to cause death.[29]  The lack ofinformation regarding the mechanism of injury does not weigh in favor of animmediately reportable accident in this case. 

 

 Chair Jordan and Commissioner Baker also emphasizethe general dangers of head trauma, agreeing with the Judge’s statement that “asignificant blow to the head could reasonably be expected to be fatal even whenthe injured miner was not displaying serious symptoms immediately following theaccident.”  Slip Op. at 9, citing 43 FMSHRC at 490.  Of course, serious blowsto the head can pose very real dangers.  However, the question is not whetherserious blows to the head can be fatal, but whether *this*blow to thehead was serious enough to be potentially fatal. 

 

Consistent with the framework in *Consol*, 941F.3d at 103,**whether a particular blow to the head was serious enough toreasonably pose a risk of death must be determined based on the totality ofcircumstances.  Looking at all the information available to the operator at thetime of the accident, there must be some fact(s) to reasonably suggest apotentially fatal condition.  These may be physical symptoms such as loss ofcoherence, or information regarding the mechanics of the accident such as theweight or distance involved.  *See, e.g.,**Consol*, 941 F.3d at 114(miner crushed between multi-ton equipment); *Signal Peak*, 37 FMSHRC at475 (miner propelled 50-80 feet).  

 

Here, as discussed above, the mechanics of the injuryprovided no useful information regarding the force of the impact that struckHauser.  *See* Slip Op. at 23, 23 n.5, 21 n.3 *supra*.  As for physicalsymptoms, Hauser was conscious and alert and appeared to have suffered noeffects aside from the two-inch cut, the swollen and bloody eye, and havingbeen temporarily knocked down.  Aside from the basic fact that Hauser was hitin the head, there are no circumstances that would suggest brain trauma orinternal injury to a reasonable person.  Nonetheless, based on those samefacts, my colleagues conclude that the impact was “considerable” enough toreasonably result in death.[30] Slip Op. at 7.  

 

This comes dangerously close to a holding that *any*blow to the head can reasonably result in death, and therefore any blow to thehead is immediately reportable, regardless of any (lack of) evidence regardingthe impact of the blow.  In other words, blows to the head would be *per se*immediatelyreportable accidents.  The Secretary does not propose, and we should not adopt,such an approach.  Where (as here) there is no useful information regarding themechanics of the accident beyond the fact that the miner was struck in thehead, and none of the physical repercussions of the accident suggest an injurywith a reasonable potential to cause death, it is only reasonable to expect theinjury to be fatal if *every*blow to the head can reasonably be expectedto be fatal.  Common sense tells us this is not so.  

 

            Thereis no question that Hauser has suffered an unfortunate injury with long-termramifications.  However, Section 50.10(b) requires immediate reporting where,based on the totality of information available at the time, a reasonable personwould believe there is a reasonable potential for death.  That standard is notmet here.  The information available to the operator was that a miner had beenhit in the head with some amount of rock sufficient to temporarily knock himdown, cause a two-inch cut on his head and damage his eye, but not cause him tolose consciousness or become disoriented.  No reasonable person would conclude,based on that information, that Hauser had a reasonable prospect of dying fromhis injuries.  

Accordingly, I would overturn the Judge’s finding of aviolation. 

 

 

 

/s/ Marco M. Rajkovich,Jr.

Marco M. Rajkovich, Jr.,Commissioner

 

 

 

Distribution:

 

BrianR. Hendrix, Esq.

OwenDavis, Esq.

DonnaVetrano Pryor, Esq.

HuschBlackwell LLP

1801Wewatta St. Suite 1000

Denver,CO 80202

Brian.hendrix@huschblackwell.com

Owen.davis@huschblackwell.com

Donna.pryor@huschblackwell.com

 

CherylC. Blair-Kijewski, Esq.

Officeof the Solicitor

U.S.Department of Labor

Divisionof Mine Safety and Health

20112th Street South, Suite 401

Arlington,VA 22202

Blairkijewski.cheryl@dol.gov

 

EmilyToler Scott, Esq.

Counselfor Appellate Litigation

Officeof the Solicitor

U.S.Department of Labor

Divisionof Mine Safety and Health

20112th Street South, Suite 401

Arlington,VA 22202

scott.emily.t@dol.gov

 

AprilNelson, Esq.

AssociateSolicitor

Officeof the Solicitor

U.S.Department of Labor

Divisionof Mine Safety and Health

20112th Street South, Suite 401

Arlington,VA 22202 

Nelson.april@dol.gov

MelanieGarris

CivilPenalty Compliance Division Chief

U.S.Department of Labor

Officeof Assessments

MineSafety and Health Administration

20112th Street South, Suite 401

Arlington,VA 22202

Garris.Melanie@dol.gov

 

ChiefAdministrative Law Judge Glynn F. Voisin

FederalMine Safety & Health Review Commission

Office of the Chief Administrative LawJudge

1331Pennsylvania Avenue, NW, Suite 520 N

Washington,DC 20004-1710

GVoisin@fmshrc.gov

 

AdministrativeLaw Judge Richard Manning

FederalMine Safety and Health Review Commission

Officeof the Chief Administrative Law Judge

72119th St. Suite 443

Denver,CO 80202-2536

rmanning@fmshrc.gov

----

[1] At the time thecitation was issued and during the proceedings before the Judge, American Soda wasknown as Solvay Chemicals, Inc.

 

[2] The Judge alsoaffirmed the citation’s significant and substantial designation and found thatthe violation was the result of a moderate degree of negligence. He assessed a$6,159 civil penalty. The “significant and substantial” terminology is takenfrom section 104(d)(1) of the Act, which distinguishes as more serious anyviolation that “could significantly and substantially contribute to the causeand effect of a . . . mine safety or health hazard.” 30 U.S.C. § 814(d)(1).

[3] MSHA Inspector RodneyGust testified that based on the results of his accident investigation, hebelieved that Hauser was standing under unsupported roof at the time of theroof fall. Tr. 42-45.  

[4] The Judge foundthat Hauser “hit the floor hard with his face.” 43 FMSHRC at 489. American Sodaargues that the Judge’s finding is not supported by the evidence. We disagree.Hauser testified that he landed “face-down.” Tr. 137. Furthermore, as a resultof the fall, Hauser’s eyes became swollen shut and obstructed by blood anddirt.    

 

[5]Although Mattinsontestified that Hauser “appeared fine to me,” he acknowledged that he was unableto see the extent of Hauser’s injuries after they were bandaged. Tr. 262.

 

[6] In his separate opinion,Commissioner Althen reweighs the evidence *de novo* instead of consideringif substantial evidence supports the Judge’s decision, as is required of theCommission under the Mine Act. *See* 30 U.S.C. § 823(d)(2)(A)(ii)(I) (theCommission is bound by statute to review a Judge’s decision under thesubstantial evidence standard); *see also Secretary of Labor v. Keystone CoalMining Corp.*, 151 F.3d 1096, 1104 (D.C. Cir. 1998) and *EasternAssociated Coal Corp.*, 13 FMSHRC 178, 185 (Feb. 1991). Commissioner Althenthen independently concludes that the weight of the evidence does not support afinding that Hauser faced a reasonable potential for death. Slip Op. at 12. BecauseCommissioner Althen uses an incorrect standard of review, his conclusion isdefective. *See**Northshore Mining Co. v. Sec’y of Labor*, 46 F.4th718, 727 (8th Cir. 2022) (“we may not reverse merely because substantialevidence may support an opposite conclusion”). Furthermore, substantively,Commissioner Althen’s central claim – that information directly from miners onthe scene of the accident informed Crum’s decision-making – was contradicted byCrum himself. Tr. 346-47 (Q: “Did you make any effort to go and talk to anybodywho’d been in the vicinity of the accident when it happened on the day of theaccident in order to determine exactly what had gone on and how bad theinjuries might be?” A: “No”). 

 

[7] The lingeringeffects of the head trauma that Hauser continues to suffer are illustrative ofthe severity of unobservable injuries that often accompany such events. However,as the Judge correctly recognized, Hauser’s present condition does notdetermine whether the operator should have called MSHA within the 15-minutereporting window after the accident. *Id*. at 488 (“the most critical [facts]to my analysis are that no one saw the roof fall, no one knew the size of therock that struck Hauser’s head, and that Hauser suffered a severe blow to thehead”). 

 

[8] Section 50.10(b)does not require the Secretary to prove as a matter of medical fact that theinjury suffered had a reasonable potential to cause death. *Consol Pa. CoalCo.*, 40 FMSHRC 998, 1004 (Aug. 2018).

 

[9] In *SignalPeak,*37 FMSHRC at 476, the Commission statedthat “[o]ncea person with sufficient authority to call learns of an event injuring a miner,the clock begins to run on the period for evaluation of . . . a reasonablepotential to cause death.”

[10] As the ThirdCircuit held, “[t]he focus must be on the factsavailable at the time of injury, and post-hoc medical evidence can, at best,serve in the attenuated role of**raising an inference about what the mineoperator perceived, including the injury’s apparent severity.” *Consol*, 941F.3d at 111. Similarly, we have found therelevant evidence to consist of “the evidence available at the scene of theaccident, at the time of the accident, and immediately following the accident.”*Consol*,**40 FMSHRC at 1003*.*Therefore, we have held thatthe operator’s decision to notify MSHA under section 50.10 cannot be based upon“clinical or hyper-technical opinions as to a miner’s chance of survival.” *CougarCoal,*25 FMSHRC 513, 521 (Sept. 2003). Moreover, we have recognized thata doctor’s diagnosis “will likely not materializeuntil the time to make a decision to notify MSHA has already passed.” *Consol*,**40 FMSHRC at 1003.

 

[11] In his separateopinion, Commissioner Rajkovich expressed concern that the ALJ’s decision“comes dangerously close to a holding that any blow to the head can reasonablyresult in death.” Slip Op. at 24. However, the totality of the circumstancesset forth above include the undisputed facts regarding the size and nature ofthe material that fell on Hauser, the impact the fall had on Hauser’s body, andother relevant facts. 

 

[12] Contrary to theseparate opinion of Commissioner Rajkovich, the nature of the accident wouldhave alerted Crum to the potential gravity of Hauser’s injuries had Crumbothered to investigate. For instance, there was a large void in the unboltedroof; at the time of the fall Hauser was located either under unsupported roofor under the last roof bolt (43 FMSHRC at 478 n.5) and the material that fellfrom the roof was mainly trona (very dense, harder than coal). *See* Slip Op.at 23 n.5, 24 (Commissioner Rajkovich writing that “there is no usefulinformation regarding the mechanics of the accident beyond the fact that theminer was struck in the head”). The fact that the falling material broke intosmaller pieces upon impact (43 FMSHRC at 483) making it impossible to establishexactly how much struck Hauser does not relieve the operator of its obligationto consider *available*information regarding the nature of the accident. 

[13]In*Cougar Coal*,**25 FMSHRC 513, 520 (Sept. 2003), the Commission held that “[w]e are notpersuaded by [the operator’s] assertions . . . that because [the injured miner]was conscious and alert . . . [the operator] could reasonably surmise that [theminer’s] injuries lacked the potential to cause death.” In *Consol*,**40 FMSHRC**at 1006, the Commission emphasized the importance ofinternal injuries, holding that a limited assessment at the mine which reliedon the miner being conscious and alert would not be sufficient to determine theextent of internal injuries to a miner. 

[14] Chair Jordan andCommissioner Baker repeatedly refer to the eye injury suffered by Hauser. However,during the operative 15-minutes, it only appeared that Hauser had a bloody eye,which cannot be sufficient indicia of injury with a reasonable potential tocause death. To the extent post 15-minute medical evidence is relevant in thisanalysis, the only relevant evidence is that the doctor (at the hospital towhich Hauser was taken for stitches) validated the operator’s assessment thatthere was not a reasonable potential for death. The doctor told an operatorwitness that Hauser’s injuries were not life-threatening. Tr. 173.

 

[15] The MSHAInspector who issued the citation, Rodney Gust, never spoke with Hauser. Tr.63.

[16] Crum found outthat Hauser had to wait two hours at the hospital for treatment. Cruminstructed Marshall to follow-up at the emergency room where they went forstitching. Marshall did so and was told the injury was not life threatening. Tr.314-15.

 

[17] It is unfair forChair Jordan and Commissioner Baker to attempt to use Crum’s desire to be keptup to date on Hauser as a basis for not paying attention to the overwhelmingevidence regarding a reasonable possibility of death. Such a request is theaction of a responsible and thoughtful manager desiring to be assuredcontinually of an employee’s status and welfare. It speaks well of Crum anddoes nothing to support their erroneous view.

[18] In some cases,observed facts of an accident may give context to the injury and give rise to areasonable possibility for death. For example, in *Consol Pa. Coal Co., LLCv. FMSHRC*, 941 F.3d 95 (3rd Cir. 2019), a multi-ton piece of equipmentrolled into another stationary multi-ton piece of equipment crushing a miner’sabdomen between them. Fellow miners had to dislodge the injured miner frombetween the large pieces of equipment. On the scene, the miner lost the abilityto move his legs and was showing signs of bleeding in the abdominal cavity. Whileit was not known with medical certainty that this injury had the reasonablepotential for death, the condition of the miner—in the context of knowledgethat the miner was crushed between large pieces of equipment—was sufficient totrigger the reporting requirement. 

 

In this case, nobody witnessed the precisemoment of Hauser falling to the floor. However, virtually instantly thereafter,witnesses saw Hauser brushing the small pieces of rock off his back, immediatelystanding up, and stepping over equipment. He had a bloody eye and a smallbleeding cut on his head that immediately stopped bleeding upon application ofa bandage. None of the miners that treated him testified to a lump or bump ofany kind at any place on his body or on his head. 

 

[19] Chair Jordan andCommissioner Baker object to any reference to the doctor’s opinion even thoughthe Secretary brought out this evidence. Elsewhere, however, they mention thatalthough no one asserted the eye injury was reasonably likely to cause death,it eventually required surgery. Slip Op. at 3. They object to relevant evidencegoing to the potential for death but rely upon later-learned evidence of anon-life-threatening injury. 

 

[20] RecapitulatingCrum’s testimony, he testified, “There was nothing that was said that wasconveyed by Neil Mattinson, by the hoistman, by Jamie McGillis, by either ShawnMarshall or Dave Stephenson that indicated that we had an injury that hadreasonable potential to cause death.” Tr. 342-43.

[21]The ultimate question is whether Crum acted reasonably indeciding that the event did not require a call to MSHA to report a reasonablepotential for death. The reports of these miners and other managers were thetotality of information available to him. This information synthesized,distilled, and reported to him demonstrate that Crum’s decision was reasonable.

[22] It would befoolish to submit that “reasonable doubt” simply adds an additional round ofpotentiality to the analysis meaning the Mine Act would provide for reportingif there were “a reasonable potential of a reasonable potential for death.” Reasonablepotential must mean witness testimony or other evidence that demonstratesobservations or occurrences that may have led a reasonable person to think thatthere was a reasonable potential for death. 

 

[23] Obviously, theabsence of medical evidence that every cut creates a potential for death doesnot mean that such injuries should be shrugged off or treated as matters of noconcern. The proper course of action is exactly what was done by the miners inthis case. The injured miner must be immediately assisted and evaluated. Theminer must be treated and transmitted to a facility for attention to cuts orother injuries. However, it is contrary to the Mine Act to fabricate a reasonablepotential for death where the evidence demonstrates such potential did notexist. All the evidence that was discovered and known in this case compelagainst finding a duty to call MSHA. 

[24]By its plainlanguage, this increased reporting burden applies to accidents which have a *reasonableprospect of killing the injured miner*, not just a reasonable potential forserious injury or a remote possibility of death.

 

[25]Here, Michael Crum,manager of health, safety, environment and quality, was the person responsiblefor deciding whether MSHA needed to be contacted immediately.Chair Jordan andCommissioner Baker take issue with Crum’s decision-making process, specificallyhis reliance on others’ observations and his failure to consider the nature ofthe accident. Slip Op. at 8-9. Five witnesses testified that they observed andtreated Hauser’s injuries, and confirmed he had a 2-inch laceration to hisscalp and bruising around his right eye, but he was coherent and able to walkunder his own power. Tr. 160-62, 199-200, 202-04, 210, 218, 232-34, 263-67. Itwas not unreasonable for Crum to rely on multiple consistent reports, given theneed for a prompt decision. Regardless, anyinvestigative failures on Crum’s part are harmless in this instance. Based onthe testimony of those who *did*personally observe Hauser, the field ofavailable information simply did not suggest a reasonable potential for death. Nothingin the record suggests Crum could have gained additional information beyondthese listed facts that would have changed his determination. 

 

[26] The *totalamount* of fallen rock was subsequently estimated at 800 to 900 pounds, butno one saw the rock strike Hauser. Tr. 41, 207. As Hauser was able to stand upagain, we can rationally assume he was *not*struck with the entireweight. Chair Jordan and Commissioner Baker note that section 50.10 is partlyintended to ensure the preservation of evidence. Slip Op. at 4. In thisinstance, however, even if the fallen rock had been left on the ground, it ishard to imagine how observing the fallen material could have assisted indetermining *which portion* struck Hauser. 

 

[27] Chair Jordan andCommissioner Baker note that a miner being conscious and alert, in and ofitself, is insufficient to conclude that there was no reasonable potential fordeath. Slip Op. at 9 n.13, *citing**Cougar Coal Co.*, 25 FMSHRC 513,520 (Sept. 2003); *Consol Pa. Coal Co. LLC*, 40 FMSHRC 998, 1006 (Aug.2018). That is true but inapposite. A miner’s alertness may not conclusivelyestablish that (s)he was not in fatal danger, but it is still part of thetotality of circumstances and may be considered. (After all, if a miner was *not*conscious and alert, that would certainly be considered evidence of aconcussion). In the cited cases, the fact that the miner was alert wasinsufficient to overcome numerous indicators of potentially fatal injury. Here,there are no indicators of potentially fatal injury to overcome. 

 

[28] The inspectorsubsequently determined the size and weight of the entire**rock fall. However,this is not *useful*information regarding the mechanics of the accidentbecause (1) it was not available at the time and (2) Hauser was not struck bythe entire rock fall. Useful information in this context would be the size andweight of the portion of the rock fall that actually struck Hauser, *i.e.,*the force of the impact. This was not available. It may sometimes  be possibleto infer the force of an impact from other facts, such as the miners’ injuries.Here, however, no other available information supports an inference ofsufficiently considerable force to create a reasonable potential for death. *See*p. 24, *infra*. 

 

[29] Chair Jordan andCommissioner Baker cite the proposition that reasonable doubts should beresolved in favor of immediate notification. *Consol Pa. Coal Co. LLC v.FMSHRC*941 F.3d 95, 103 (3rd Cir. 2019). I would emphasize that doubts mustbe *reasonable*, and doubts without at least some basis in fact areinherently *un*reasonable. The requirement to resolve reasonable doubts infavor of notification does not require operators to resolve *all unknowns*in favor of notification. Here, there are no facts regarding the mechanism ofinjury from which reasonable doubt might arise. It is not reasonable to be told“someone was hit in the head with a rock, I don’t know how hard” and beconcerned that person might die. 

[30] Rather thanreferring to Hauser’s eye as swollen and bloody, the opinion of Chair Jordanand Commissioner Baker specifically notes that his eye socket was shattered. SlipOp. at 6. However, that information was not available until after Hauser hadbeen medically evaluated. Post-hoc medical evidence regarding the seriousnessof Hauser’s eye injury—which *still*carried no risk of fatality – carrieslittle weight, if any. *Consol*, 941 F.3d at 111.