Hern Iron Works, Inc.
Separate willful recordkeeping penalties upheld and reduced
Apply this precedent to your situation
This is citable Commission precedent from 1993, and it may have been appealed since. Ezel checks how it stands today and answers your situation, with citations.
Plain-English summary
OSHA cited Hern Iron Works, a small Idaho foundry, for failing to record multiple employee injuries on its OSHA 200 log and supplementary injury records. The Commission held that each separate failure to record an injury can constitute its own violation and support a separate penalty. It affirmed four willful failures to record injuries and one willful misclassification of an injury that involved hospitalization and lost workdays, relying in part on evidence that the company discouraged injury reporting. It upheld vacation of another burn-related item because the regulation and OSHA 200 instructions did not give adequate notice that the injury had to be recorded, and the record did not show the company knew of separate agency guidance. Considering the company's small size and the low gravity of recordkeeping violations, the Commission reduced four willful penalties to $1,000 each and affirmed a $5,000 penalty for the lost-workday misclassification; four unreviewed other-than-serious items carried an additional $800.
Decision snapshot
- Cited standard(s): 29 C.F.R. §§ 1904.2(a) and 1904.4
- Outcome: Five willful OSHA 200 violations remained affirmed for $9,000, one reviewed item remained vacated, and four other-than-serious supplementary-record violations carried $800.
- Key point: Each omitted injury may be penalized separately, but an employer must have fair notice that a particular injury is recordable before liability can attach.
Full text (OSHRC public release)
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1825 K STREET N.W.
4TH FLOOR
WASHINGTON D.C. 20006-l 246
FAX:
.. C$VQZ?OQZ?~4-4008
SECRETARY OF LABOR, ..
..
Complainant, ..
..
v. .. OSHRC Docket No. 89-433
..
HERN IRON WORKS, INC., ..
..
Respondent. ..
.
.
DECISION
Before: FOULKE, Chairman; WISEMAN and MONTOYA, Commissioners :
BY THE COMMISSION:
Hem Iron Works, Inc. (“Hem”) operates a cast iron foundry in Coeur d’Alene,
Idaho, where it employs fifteen to twenty employees. The foundry was inspected by the
Occupational Safety and Health Administration (“OSHA”) in July, 1988. Based on the
inspection, the Secretary issued Hem two citations alleging violations of the Secretary’s
recordkeeping standards. Citation no. 1 alleged ten willful violations of 29 C.F.R.
6 1904.2(a),’ for Hem’s failure to record nine occupational injuries that occurred in 1987
on Form OSHA No. 200 (“the OSHA 200 log”), and for misrecording a tenth injury that
’ Section 1904.2(a) provides that:
(a) Each employer shall, except as provided in paragraph (b) of this section, (1) maintain in
each establishment a log and summary of all recordable occupational injuries and illnesses
for that establishment; and (2) enter each recordable injury and illness on the log and
summary as early as practiuble but no later than 6 working days after receiving information
that a recordable injury or illness has occurred. For this purpose form OSHA No. 200 or an
equivalent which is as readable and comprehensible to a person not familiar with it shall be
used. The log and summanl shall be completed in the detail provided in the form and
instructions on form OSHA *No.200.
2
occurred in 1986.* The Secretary proposed a $10,000 penalty for each of the ten alleged
1
willful violations of the standard.3 Citation no. 2 alleged nine other-than-serious violations
of 29 C.F.R. 0 1904.44 for Hern’s failure to record nine of the ten occupational injuries on
Form OSHA No. 101, the supplementary record of workplace injuries and illnesses? No
penalty was proposed for the alleged other-than-serious violations! During the hearing, the
Secretary voluntarily withdrew willful citation item l(i) and its concomitant other-than-
serious citation item.
Hem contested both (itations, and a hearing was held before Administrative Law
Judge James H. Barkley. The judge affirmed five willful violations of section 1904.2(a) and
four other-than-serious violations of section 1904.4. He assessed penalties of $2000 each for
willful violations l(a), l(b), l(e), and l(g), $5000 for willful violation l(j), and $200 each for
the four other-than-serious violations 2(a), 2(b), 2(e), and 2(g), for a total penalty of $13,800.
- The only violations considered for purposes of the citations issued in this case occurred in calendar years
1986 and 1987.
3 At the time this case arose, penalties for willful violations were limited to $10,000 and for serious or
nonserious violations to $1000. Those amounts have subsequently been raised to $70,000 and $7000,
respectively. Section 17 of the Act, 29 U.S.C. 5 666, amended by Omnibus Budget Reconciliation Act of 1990,
Pub. L No. 101-508,~ 3101 (1990).
4 Section 1904.4 provides that:
In addition to the log of occupational injuries and illnesses provided for under 8 1904.2, each
employer shall have available for inspection at each establishment within 6 working days after
receiving information that a recordable case has occurred, a supplementary record for each
occupational injury or illness for that establishment. The record shall be completed in the
detail prescribed in the instructions accompanying Occupational Safety and Health
Administration Form OSHA No. 101. If no acceptable alternative record is maintained for
other purposes, Form OSHA No. 101 shall be used or the necessary information shall be
otherwise maintained.
’ Hem used the Idaho Industrial Commission Notice of Injury and Claim for Benefits form in lieu of the
OSHA 101 form, as permitted by section 1904.4.
6 Ryan Kuehmichel, the Area Director for OSHA for the State of Idaho, testified as follows:
The National Office decided that the two items that were cited as the 200 form and the
company 101s were really pretty much of a unit, and they wanted not to double jeopardize,
essentially, the company. They wanted to cite the 200 as the willful because that is what we
calculated the [lost-work day injury (“LWDI”) rate]. The accompanying 101 or worker
[compensation] forms they decided were to be other-than-serious
3
Hem filed a timely petition for discretionary review, and the Secretary filed a timely
conditional cross-petition for discretionary review with respect to the alleged violation of
item l(d) that the judge had vacated.’ The direction .for review was limited to the issues
of whether the judge erred in assessing separate penalties for each alleged willful violation
of section 1904.2, whether the judge erred in vacating item l(d), whether the judge erred in
finding item l(j) willful as alleged, and whether the penalty assessment for Citation 1 was
appropriate!
I. Issues
A l Whether the judge erred in assessing separate penalties for each violation of
29 C.F.R. 5 1904.2.
1 l Whethet the Commission can assess sepatate penalties for each
failure to record.
The Secretary argues that he interprets the penalty provisions of the Occupational
Safety and Health Act of 1970, 29 U.S.C. 86 651-678 (“the Act”), as authorizing him to
propose multiple penalties for multiple violations of a single standard, and that his
interpretation is consistent with the plain language of the Act and the regulations, and
therefore should be upheld. He relies on Chevron, USA, Inc. v. National Resources Defense
Council; Inc., 467 U.S. 837, 843-45 (1984) and Consumer Prod. Safety Comm. v. GTE
Sylvania,447 U.S. 102, 108 (1980). The Secretary claims that his interpretation advances the
purpose of section 1904.2, which he argues is to develop accurate and complete information
for enforcement and to avoid the underreporting of injuries. The Secretary notes that the
Commission supported his view of the importance of recordkeeping in GeneraZM~tors Corp.,
Inland Div., 8 BNA OSHC 2036. 2040-41, 1980 CCH OSHD ll 24,743, p. 30,470 (No. 76
5033, 1980) (the legislative history of the Act indicates that Congress imposed a recording
obligation for each recordable quT): or illness in order to foster accuracy and completeness).
The Secretary argues that a Commission decision prohibiting him from proposing
multiple penalties would go bevond
* adjudication of a violation and impermissibly infringe
’ The Secretary did not appeal the judge’s assessment of %13,000for the five alleged willful violations.
8 Review was not directed on the alleged violations of section 1904.4.
4
on the enforcement policy embodied in the regulation. The Secretary asserts that “[i]f Her-n
is potentially liable for only a single penalty of $10,000 regardless of the number of violations
or the ‘especially grievous’ nature of its conduct, there’ is little incentive to fully comply with
the Act, particularly after committing the first offense.” The Secretary further argues that
“[pllainly, a failure to record a single recordable workplace injury is a violation of
section 1904.2(a), and the failure to record a second injury arising out of different facts is
a second violation.”
Hem does not dispute that the Secretary may issue separate citations with proposed
separate penalties for each violation of the same regulation, but it argues that the Secretary
cannot assess separate penalties for a failure to complete each entry on the required OSHA
200 form. Hem claims that “any misentry (or lack of entry) on the form is only an aspect
. of the unitary failure to keep accurate records.” Hern believes that the Secretary’s citing
it for multiple violations of the regulation “is analogous to a prosecutor wanting to charge
a Defendant not for burglarizing a house, but for stealing a rug, a painting, a set of
silverware, and a stereo receiver” which would be “properly charged as a burglary, not as
a series of petite thefts.” Hem argues that if the Secretary wanted to cite for . each failure
to record on the OSHA 200 form, then it makes redundant the requirement that additional
separate forms be completed for each industrial accident on the OSHA 101 form or its
equivalent.9
In response to Hem’s argument regarding the 101 form, the Secretary contends that
the 101.form provides the necessary detail for OSHA to check the accuracy of the OSHA
200 log. The Secretary acknowledges that although he might cite an employer for each
alleged violation of section 19W.J for the employer’s alleged failure to record injuries on the
OSHA 101 form or its equivalent. his policy is not to propose penalizing the employer for
each section 1904.4 violation.
’ Hem also argues that the Secretarv is effectively citing Hern for “repeated” violations, on the theory that
each instance of the failure to re&d was repeated eight times. A repeat violation is a classification of a
violation under section 17(a) of the Act. 29 U.S.C. 8 666, premised on the existence of a previously cited
violactionof the same or a similar standard having become a final order against the same employer. Potlatch
Corp., 7 BNA OSHC 1061, 1063,1979 CCH OSHD 123,294, p. 28,171 (No. 16183,1979). The Secretary did
not classify these alleged violations as repeat violations.
Analysis
The Commission recently held that it has the authority to assess separate penalties
for separate violations of a single standard or regulation. Caterpillar, Inc., 15 BNA OSHC
2153,2172-73,1993 CCH OSHD ll 29,962, pp. 41,005.06 (No. 87.0922,1993). In Caterpillar,
we affirmed separate violations of section 1904.2(a), the standard cited here, and assessed
separate penalties for each injury or illness an employer failed to record on the OSHA 200.
In determinin g whether separate violations exist, we stated: “The test of whether the Act
and the cited regulation permits multiple or single units of prosecution is whether they
prohibit individual acts, or a single course of action.” Id., 15 BNA OSHC at 2172,1993 CCH
OSHD at p. 41,005. Applying that test to section 1904.2(a), we concluded that the
provisions of section 1904.2(a) can reasonably be read to refer to individual instances of
improper recording of injuries and illnesses. Hem argues that its alleged failure to record
each injury or
. illness to an employee is part of a general failure to maintain accurate
recordkeeping. However, the violations alleged here all involved separate injuries that Hem
failed to record over a period of time and can certainly be characterized as individual acts.
Since the Secretary has carried his burden of proof and demonstrated each failure to record
to be a separate violation, we find that it is within our authority to assess separate penalties.
2 l Whether the judge envd in granting the Secretary’s motion to
amend his complaint alleging multiple violatiorzs rather than a
single ddiztion.
On pages 1 and 4 of citation no. 1, the Secretary specified a total penalty of $100,000
for the alleged violations of section 1904.2(a). There were ten cited instances of violations
of the standard, lettered (a) through u). However, a $10,000 penalty was not listed next to
each of the ten instances. The $100,000 total penalty amount was again noted in the
complaint. Sub-paragraph (f) of the complaint stated that a penalty of $100,000 had been
proposed for the violations. In its answer to the complaint, Hern acknowledged that “a
penalty of $100,000 had been proposed for the violations.”
At the beginning of the hearing, the judge stated that he could not tell from the
complaint whether the Secretary cited Hern for one willful violation and one other-than-
6
serious violation, or for 10 separate willful and 9 separate other-than-serious violations. The
Secretary attempted to clarify his position by making a motion to amend the complaint to
allege that each instance of alleged violation of the cited recordkeeping regulation
(ultimately nine willful instances and eight other-than-serious instances) be considered a
separate violation of the Act. Hem objected to the motion. Hem’s attorney stated that he
believed that there was a jurisdictional limit of $10,000 for the penalty, and that he had
decided to let the Secretary “go down the primrose path” and discover at the end of the
hearing that he could not have a recommended penalty of $100,000 affirmed by the judge.
The attorney stated that had Hem “really truly believed as a legal issue that [it was] exposed
to [a penalty of] $100,000,” it would have managed the case differently.” In his decision,
the judge granted the motion and permitted the Secretary to amend the complaint to allege
each instance as a separate violation.
On review, the Secretary claims that the amendment was intended simply to conform
the pleadings to the legal charge, which was that Hem had committed 10 separate willful
violations of section 1904.2(a), for each of which the Secretary sought the maximum penalty
available under the Act. The Secretary notes that paragraph IV of the complaint states that
citation no. 1 “alleged ten separate instances of violation of 29 C.F.R. 0 1904.2(a),“11 but
acknowledges that the complaint also used the singular term “violation” in paragraph V
parts (e), (f), and (g). The Secretary argues that the citation as initially drafted put Hern
on notice that the Secretary sought to charge each instance of a violation of
section 1904.2(a) as separate because the Secretary proposed a penalty of $100,000, and
lo However, Hem did not explain at the hearrng or in its brief how it would have managed the case differently.
l1 Paragraph IV of the complaint is as follou5:
As the result of an investigation by authorized representatives of the Secretary,
Citation and Notification of Penalty Numbers One and Two, each dated January 24, 1989,
were issued to the Respondent, pursuant to Section 9(a) of the Act. Citation Number One
alleged ten separate instances of violation of 29 C.F.R. 1904.2(a) designated as 4%villfbl”,
and
Citation Number Tkwoalleged nine separate instances of violation of 29 CER. 1904.4
designated as “other”. i
7
since the maximum penalty for a single willful violation is $10,000 under 29 U.S.C. Q 666(a),
“the citation by definition alleged ten separate willful violations of the Act.”
The Secretary notes that former Commission Rule 35(f)(3) provides that
Fed. R. Civ. P. 15 shall apply to Commission proceedings,‘* and that Federal Rule 15(a)
provides that “a party may amend the party’s pleading only by leave of court or by written
consent of the adverse party; and leave shall be freely given when justice so requires.” The
Secretary contends that the Ninth Circuit, in which this case arises, permits the amendment
of pleadings where there is a lack of prejudice to the opposing party. He cites the following
cases for support: Donovan v. Royal Logging Co., 645 F.2d 822 (9th Cir. 1981)(no abuse of
discretion in permitting the Secretary to amend his complaint where employer claims
prejudice, but does not prove it); Howey v. United States, 481 F.2d 1187, 1190-92 (9th Cir.
1973)(abuse of discretion to deny a motion to amend a complaint where there is a. lack of
prejudice to the opposing party and amendment not frivolous or made in bad faith). The
Secretary contends that Hem’s claim of prejudice involves nothing more than the potential
exposure to the proposed penalty of which it received actual notice in the initial citation.
The Secretary argues that since the facts and the law underlying the amended charge did not
change, and the amendment did not deprive Hem of any potential affirmative defenses, the
Commission should affirm the judge’s decision “in the absence of undue delay, bad faith, or
dilatory motive.” Fornan v. Dw&, 371 U.S. 178, 182 (1962). He points out that although
Hem asserts a due process violation, it “never sought a continuance or demonstrated in any
concrete way how the amendment prejudiced its ability to mount an effective defense.”
Hem argues that the judge erred in granting complainant’s motion to amend the
complaint. Hem contends that the issue is not what the citation said, but what the
complaint said, since under former Commission Rule of Procedure 35 the citation cannot
I2 Former Commission Rule 35(f) provided in pertinent part:
All other amendments of the Secretary’s allegations, as well as any amendments of the
employer’sresponses, are governed by Federal Rule of Civil Procedure 15.
The Commission’s Rules of Procedure, 29 CFR Part 2200, have since been revised effective December 10,
1992. 57 Fed. Reg. 41,676 (1992).
8
be incorporated into the complaint. For support, Hern cites ASARCO, El PQSODiv., 8 BNA
OSHC 2156,2162,1980 CCH OSHD ll 24,838, p. 30,619 (No. 796850, 1980), in which the
Commission held that the primary function of the citation is to give notice to the employer
of the charge and the relief requested, while the primary function of the complaint is to
formulate issues to be resolved in specified allegations. Hem notes that the amendment of
the complaint was requested at the hearing, over the objection of Hem, and that no offer
of a continuance was made. Hem maintains that “[t]he preparation of [its] defense was
completely compromised by the allowance of the amendment.” It claims that “[t]o alter the
defense’s preparation and exposure to a $10,000 penalty and transmute it into a $100,000
penalty on the morning of trial is the highest form of prejudice.”
Analysis
The issue before us is whether Hem was prejudiced by the Secretary’s amendment
of the complaint to clarify that he intended to separately cite Hem for each of the ten
alleged failures to comply with section 1904.2(a). Although Hem claims that it would have
approached the case differently had it known that it was potentially liable for a penalty of
$100,000, Hem had ample notice from both the citation and the complaint that the Secretary
was proposing a penalty of $100,000. In its answer, Hem acknowledged that the Secretary
proposed a $100,000 penalty. Since Hem was aware of this amount, and none of the facts
underlying the alleged violations changed, a claim that it was taken by surprise the morning
of the hearing does not carry much weight. We also find unpersuasive Hem’s claim that it
was not offered a continuance when it did not request one. We therefore conclude that
Hem failed to show that it was prejudiced in the preparation of its defense by the
Secretary’s amendment and that the judge did not err in granting the Secretary’s motion to
amend the complaint.
B. Whether the administrative law judge erred in vacating Citation No. 1, Item (d).
Todd Ingram was a Hern employee from December 1986 until November 1987. In
June 1987, Ingram was burned when a hot mold fell against his left forearm. The bum was
about 1 to 1% inches long and N-inch wide, and it swelled, blistered and bled, but never
impeded the full use of his arm. A Hem office secretary cleaned and dressed the bum, and
9
the arm was bandaged for approximately one week. Ingram did not seek professional
medical treatment because he did not feel it was warranted.
The Secretary’s citation alleging this violation of section 1904.2(a) appears as follows:
(d) While at work on or about June 9, 1987, an employee suffered a second
or third degree bum on his arm when a mold he was shaking out fell against
it. The bum was severe enough to bleed, and left a scar approximately 1% by
*Ainch This injury was treated at work. This injury was not recorded on the
OSWi Form 200.
Section 1904.2(a) requires that recordable occupational injuries and illnesses13 be
recorded on the OSHA 200 or an equivalent.
The judge vacated item l(d). He found that the record failed to establish that
Ingram’s bum met the criteria of a reportable injury because Ingram received only one-time
first aid treatment and had full use of his arm. The judge also examined Ingram’s arm
during the hearing, and found that the arm “showed little ‘or no scarring, which is
I3 Section 1904.12(c) defines recordable occupational injuries or illnesses as any occupational injuries or
illnesses which result in the following:
(1) Fatalities, regardless of the time between the injury and death, or the length of the%lness;
or
(2) Lost work&y cases, other than fatalities, that result in lost workdays; or
(3) Nonfatal cases without lost workdays which result in transfer to another job or
termination of employment, or require medical treatment (other than first aid) or involve:
loss of consciousness or restriction of work or motion. This ategory also includes any
diagnosed occupational illnesses which are reported to the employer but are not classified as
fatalities or lost workday cases.
Section 1904.12(d) defines medical treatment as follows:
(d) M&c& treatment includes treatment administered by a physician or by registered
professional personnel under the standing orders of a physician. Medical treatment dm not
include first aid treatment even though provided by a physician or registered professional
personnel.
Section 1904.12(e) defines first aid as follows:
(e) FirstAid is any one-time treatment, and any followup visit for the purpose of observation,
of minor scratches, cuts, burns, splinters, and so forth, which do not ordinarily require
medical care. Such one-time treatment, and followup visit for the purpose of obser;ition,
is considered first aid even though provided by a physician or registered professional
personnel.
10
inconsistent with a bum of such severity as to require medical treatment” and thus need not
be reported on the OSHA 200 form.
On review, the Secretary raises an argument not made to the judge. He claims that
the term “medical treatment” is clarified in the 1986 Bureau of Labor Statistics (“BE”)
pamphlet, Recordkeeping Guidelines for Occupational Injuries and I;llnessesm
(“the Bm
Guidelines”). The Secretary argues that the BLS Guidelines are his interpretation of his
own regulation, and are of controlling weight unless they are plainly erroneous or
inconsistent with the regulation.
The Secretary argues that the BLS Guidelines state that bums of second degree and
greater should be recorded on the OSHA 200 form. See BLS Guidelines at 42-43. He
argues that Ingram had at a minimum a second-degree bum. Although there was no direct
evidence that Ingram received a second degree bum, the Secretary notes the unrebutted
testimony of a former Hem employee, Herbert Lindsey,14 who testified as to the severity
of a bum to his own foot. ls In describing the bum to his foot, Lindsey testified that a
second degree bum is characterized by blistering. The Secretary notes that Ingram testified
that the bum on his arm blistered.
The Secretarv/ also asks that, under Fed. R. Evid. 201 (c) & (d),16 the Commission
.take administrative notice of two medical reference works for the definition of a second
l4 Lindsey worked at Hem from September 1986 until April 1987, and currently is employed as a deputy
sheriff. Lindsey testified that he received training in first aid in the Air Force and in his current duties as a
deputy sheriff, including training in the identification and classification of bum injuries.
I3 Hem’s alleged failure to report Ax&y’s bum was cited as Item (c). The judge vacated Item (c) because
he found that Lindseydid not report his bum to any of Hem’s supervisory personnel. The Secretary did not
contest the judge’s decision regarding Item (c), and it is not on review.
l6 Rule 201(c) provides:
When discretionary. A court may take judicial notice, whether requested or not.
Rule 201(d) provides:
When mandatory. A court shall take judicial notice if requested by a party and supplied with
the necessary information.
11
degree bum should the Commission prefer not to credit former employee Lindsey’s
description of a second degree bum.”
The Secretary argues that in recording occupational injuries, the focus should not be
on what type of aid was administered, but rather on what type of aid was required. He
argues that the BLS Guidelines require that injuries be recorded according to their type, not
necessarily because the employee actually received medical treatment. 1986 BLS Guidelines
at 44, F-2, F-4 to -5. The Secretary argues that the judge improperly assumed the role of
a medical expert in determining from his observation that the absence of discemable scarring
was inconsistent with a recordable bum.
Hem argues that a layman is not capableof testifying about the proper classification
of the bum. It claims that an expert is required to diagnose a second degree bum, and that
there was no expert testimony presented on this issue. Hem asserts that the .Secretary’s
request for the Commission to take administrative notice of the medical books deprives
Hem of due process. Hem contends that it relied on the fact that the Secretary did not
have any expert witnesses for the hearing, which it believes “by definition meant that there
were no physicians who could testify as to the hiagnosis of the bums which Hem believed
to be first degree and the Government alluded to being second or third.” Hem argues that
the degree of a bum is not something that can be administratively noticed.
Analysis
We conclude that the evidence submitted at the hearing does not support a finding
that section 1904.2(a) or the language on the OSHA 200 required the recording of Ingram’s
injuries. Ingram received only one-time, first aid treatment. He did not experience any of
the symptoms listed in the standard or on the OSHA 200 form that make an injury
recordable. Nor was there any evidence that the bum restricted Ingram’s movement.
Therefore, we cannot say that the judge erred in vacating that item of the citation?
” The Secretary cites lc Attorney’s T&book of Medicine lI 20.21 (1982), and Dorland’s IllustratedMedical
Dictiona?y 244, 1832 (27th ed. 1988).
I8 The judge offered no spezifit support for the proposition that burns that do not produce a scar are not
recordable* Althou@ in certain circumstances the extent or absence of a scar might provide evidence of the
(continued...)
12
The Secretary’s late reliance on the BLS Guidelines and other materials does not
compel a different result. In CaterpiZZur,
we specifically declined to reach the issue of
whether an employer who did not have a copy of the BLS publications would still be
required to follow them. We noted that “a lack of knowledge of . . . the 1986 Guidelines
does not permit an employer to skirt its recordkeeping responsibilities,” and we concluded
that the “language of the regulation, the definitions in section 1904.12, and the instructions
on the OSHA 200 itself provide sufficient information to answer most questions about what
is recordable on the OSHA 200.” 15 BNA OSHC at 2162 n.11, 1993 CCH OSHD at
pp. 40994-95 n.11. Here, however, we have found that Hem would not have been apprised
of a duty to record employee Ingram’s bum from the regulation, the definitions in section
1904.12, or the instructions on the OSHA 200: Since only the BLS Guidelines state that
second degree bums are recordable and the record does not indicate whether Hem was
aware of the requirements of *theBLS Guidelines, we cannot conclude that compliance with
section 1904.2(a) required Hem to record the bum. Because the s&nificance of the material
the Secretary asks us to administratively notice goes only to proving that the bum was a
second degree bum, and we do not find that Ingram’s bum was recordable even if it was a
second degree bum, we need not resolve the notice issue. We therefore conclude that Hem
did not violate section 1904.2(a) by failing 50 record the bum cited in item l(d).
C l Whether the administrative law judge erred in finding Citation 1, Item (j)
willfill.
On December 11, 1986, Mark Graves, a 4-year employee of Hem Iron, injured the
middle finger of his left hand helping move a sprocket off a shaker. As a result of the
injury, Graves was hospitalized and had the nail bed on that finger surgically removed.
Graves lost seven work days and the use of his hand was restricted for a little more than a
week after his return to work. Graves’ injury was recorded as an Injury Without Lost
Workdays in Hem’s OSHA 200 log.
severity of an injury, we would suggest that the presence of a scar is not always a reliable indication of the
nature of an injury.
13 =c
The Secretary cited the injury as follows:
(j) While at work on or about December 11, 1986, an employee suffered a
hand injury when the bucket of a front end loader dropped on it. The injury
resulted in partial amputation of the left middle finger, intravenous
medication, prescription medication, hospitalization, and lost work days(s).
This injury was recorded on the OSHA Form 200 as medical treatment only.
At the hearing, Mr. Hem testified that the company’s failure to report the injury as
a lost time accident was a “mistake in filling the form out.” He also testified that the
company would have receive‘d no benefit from concealing the fact that Graves’ injury
resulted in lost work days because it averaged “5 or 10” lost workdays a year anyway. Mr.
Hem also stated that the company had no motive not to report the injury because OSHA
would have discovered it if it had reviewed the Industrial Commission’s records. Hem had
recorded and filed the lost workdays on the Idaho Industrial Commission Notice of Injury
and Claim for Benefits form. Mr. Hem testified that his workplace becomes subject .to a
full inspection by OSHA if it has “something like l/5 of a lost workday per year or one lost
workday every 5 years.” Mr. Hern testified that the size of his workmen’s compensation
premiums depends on the prior year’s injury rate.
Area Director Kuehmichel stated that Hem would not have been inspected in 1987
based on the information Hem provided for the years 1986 and 1985. However, he testified
that Hem would have been inspected for the three lost workday cases it had reported on
the OSHA 200 form in 1987. Kuehmichael testified that OSHA regularly inspects the
worker’s compensation files to see if an employer’s OSHA 200 form is correct.
Past and present Hem employees also testified regarding Hem’s recording practices.
Former employee Todd Ingram testified that he was told to report all injuries to a foreman,
but was told never to file repwts dlcating on-the-job injuries. Ingram testified that he
could not go to a doctor without pwnission, and that he did not want to report his injuries
for fear of losing his job. Hem Emplovee
4 Robert Elliott testified that he understood that
Hem’s “standing” policy was to avoid involving the Idaho Industrial Commission through the
filing of workmen’s compensation claims, and that if employees “made waves” they would
lose their
L jobs.
14
In affirming the item as willful, the judge found that “the summary was completed
in a fashion deliberately designed to mislead OSHA inspectors into believing this was not
a lost time accident which would trigger an inspection.” “Based on Hem’s demeanor, the
internal inconsistency of his testimony, and contradictory evidence,” the judge “reject[ed]
Hem’s assertion that he had no reason to misreport Graves’ injury.“*g The judge found
that Hem knew that one lost time injury in a business the size of Hem’s would trigger an
inspection. The judge noted that Graves’ injury was the only injury reported in 1986, and
that the proper reporting of the lost workdays it involved would have resulted in an
inspection. The judge also noted that in six separate instances the severity of the injury was
misreported.
The Secretary argues on review that citation item l(j) was properly affirmed by the
judge as a willful violation. He notes that Mr. Hern stated that he understood the linkage
between his lost-work day injury (“LWDI”) rate and OSHA’s inspection policy, contradicting
Hem’s own earlier testimony that he would not benefit from under-reporting Graves’ injury.
The Secretary compared the present case with Ca@ Cop., 14 BNA OSHC 1789,1987-90
CCH OSHD ll 29,080 (No. 85-319, 1990), a case in which the Commission found a willful
violation because an employer disregarded specific instructions from the compliance officer
during an inspection. The Secretary argues that Hem consciously disregarded the
requirements of the law, despite having previous violations called to his attention. He also
contends that Hem could offer no rational explanation for its failure to record the Graves
injury as a lost workday injury, nor could it have held a good faith belief that it was in
compliance with the cited regulation.
l9 In addressing item (a) of the citatron. the judge made a credibility determination of Mr. Hem, which we
believe carries over into the succeedrng items. The judge’s credibility determination is as follows:
waving observed the demeanor of Hem, heard the tone of his voice, absented his eagerness
to answer at times and his hesrtatron at other times, this Judge concludes Hem’s testimony
deserves less weight than that of opposing witnesses. After considering the body of Hem’s
testimony, I found that portIons of that testimony were implausible and internally
Q inconsistent. I am further persuaded by the fact that Hem is a party with a substantial
interest to protect while opposing witnesses, past and present employees, had nothing to gain
and in fact may have faced some risk in testifying adversely to Hem.
15
Hem argues that it “readily admitted reportability, readily confessed to the error of
failing to report, and clearly testified as to lack of motivation for not reporting this particular
injury,” but that the judge “nonetheless imposed upon Hern the same criteria for willfulness
-- the appearance of motivation -- that informed the judge’s finding with regard to the issue
of multiple penalties.” Hem contends that the Secretary’s argument that Mr. Hem
contradicted his own testimony regarding the linkage between the under-reporting of the
LWDI rate and OSHA’s inspection policy misrepresented the testimony of Mr. Hem. Hem
asserts in its brief that OSHA frequently inspects Hem’s workplace, and that Mr. Hem
expected to eventually be inspected regardless of the misrecording on the 1986 OSHA 200
form.
The Secretary in response argues that “[qhe issue is not Hem’s repentance, but the
employer’s state of mind at the time of the violation.” The Secretary notes that if Mark
Graves’ injury was properly recorded, it would have put Hern over the LWDI inspection
.
threshold for that year.
Analysis
To establish a willful violation, the Secretary bears the burden of proving that the
violation was committed with either an intentional disregard of the requirements of the Act
or plain indifference to employee safety. To meet this burden, it is not enough for the
Secretary to show that an employer was aware of conduct or conditions constituting the
alleged violation; such evidence is already necessary to establish any violation, serious or
nonserious. A willful violation is differentiated by heightened awareness of the illegality of
the conduct or conditions and by a state of mind of conscious disregard or plain indifference
when the employer committed the violation. Williams Entep., 13 BNA OSHC 1249, 1256
57, 1986-87 CCH OSHD II 2?1393. p. 36,589 (No. 85-355, 1987). See also General Motors
Cop., EZectro-MotiveDiv., 14 BSA OSHC 2064,2068, 1991 CCH OSHD II 29,240, p. 39,168
(No. 82430, 1991). There must be evidence that an employer knew of an applicable
standard or provision prohibiting the conduct or condition and consciously disregarded the
standard. A willful charge is not justified if an employer has made a good faith effort to
comply with the standard, even though the employer’s efforts are not entirely effective or
complete. William, 13 BNA OSHC at 1257, 1987-90 CCH OSHD at p. 36,589.
16
The testimony of present and past employees demonstrates that Hem discouraged
the recording of injuries on the OSHA 200 form. In finding Hem’s failure to enter these
lost workdays willful, the judge relied on this attitude toward recording, on Mr. Hem’s
awareness of the link between lost workdays and OSHA inspections, and on his evaluation
that Mr. Hem lacked credibility. Hem’s claim that the judge found the violation willful
because he believed that Hem was motivated by an interest in forestalling an OSHA
inspection comes to grips with only part of the judge’s reasoning. It is true that the judge
noted hk Hem’s awareness of the link between the LWDI rate and OSHA inspection.
More crucial, however, is the fact that the judge disbelieved Mr. Hem’s testimony regarding
the failure to record the lost workdays to the extent that he found that it was “deliberately
designed” to mislead OSHA inspections. When such an evaluation is based on the judge’s
obseniation of a witness’ demeanor and is clearly stated and explained, we generally accept
that finding. C. Ka@nan, Inc., 6 BNA OSHC 1295,1297, 1977-78 CCH OSHD ll22,481, p.
27,099 (No.* 14249, 1978)(the Commission’s policy is to ordinarily accept a judge’s credibility
evaluation of witnesses because he has lived with the case, heard the witnesses, and observed
their demeanor). Here, the judge’s finding more than meets that criterion. Moreover, Hem
has not persuaded us that the finding should be reversed and our review of the record
indicates that there is no basis for doing so. United States Steel Cop., 9 BNA OSHC 1641,
1644, 1981 CCH OSHD B 25,282, pp. 31,251-52 (No. 76-5007, 1981). We therefore defer
to that finding. Based on the judge’s credibility findings and the other evidence discussed
above, we find that the judge correctly determined that the violation was properly
characterized as willful.
D. Whether the penalty assessment for Citation 1 was appropriate.
Judge Barkley assessed a penaltv4 of $13,000 for four failures to record injuries on the
OSHA 200 and for one failure to report an injury as a lost time accident on the same form.
17
The Secretary proposed penalties of $10,000 per violation. The violations that the judge
affirmed are as follows:2o
(a) While at work on or about September 21, 1987, an employee [John Hem
III] suffered a laceration on his chin (lip) when an aluminum pattern blew up.
The injury resulted in medical treatment with several stitches taken in the
lower lip. This injury was not recorded on the OSHA Form 200?
Penalty assessed by the judge: $2000.
(b) While at work on or about March, ‘1987, an employee [Robert Elliott]
suffered a second or third degree bum on his left foot when molten metal ran
out of a mold and into his boot. The burn resulted in a scar approximately
3/4 inch by 2 inches. This injury was not recorded on the OSHA Form
200 022
Penalty assessed by the judge: $2000.
(e) While at work on or about July, 1987, an employee [Stanley Kaminski]
suffered a second or third degree bum on his left arm when the furnace blew
up. The bum was treated at work. The injury resulted in the arm being
bandaged for over a month, and lost work day(s). This injury was not
record.ed on the OSH-4 Form 200?
z~The direction for review goes only to the penalty, and not the merits,
of four of these items. The willfulness
of item l(j) was also directed for review.
” Employee Merle Black testified that John Hern III, the son of respondent’s president, had packed sand
around a welded sprocket pattern to form a casting mold and was trying to remove the pattern from the sand,
when a loose welded portion of the pattern blew up, striking him in the lower right jaw. Black testified that
two days following the incident, Hern showed him the sutures in his lip while describing the accident. Hem
testified that his son had not told him of any injury at the plant but had told him that he fell while cleaning
the g&age. The judge, based on a credibility determination, found that John Hem III was injured at work.
22 Employee Robert Elliott testified that he suffered a bum to his foot when hot metal poured down Tom a
mold into his boot, burning a hole through his boot and sock. The 1” x 1%”bum was cleaned and bandaged
at the office. The bum was reported to Hem, but Hem discouraged Elliott’s suggestion that he see a doctor.
The bum took approximately two months to heal. Elliott testified that he missed no work and suffered
minimal work restrictions.
23 Shop Foreman Stanley Kaminski was exposed to heated gas when a furnace blew up. The gas burned his
right arm from above the elbow, halfway to his wrist. Kaminski had the bum wrapped in a Hem office, and
kept the arm bandaged for approximately 2 to 2% weeks. The bandages were changed and ointment applied
daily. Kaminski did not miss work because his absence was previously scheduled in order to attend a wedding.
The bum was a hindrance to performing his job.
18
Penalty assessed by the judge: $2000.
(g) While at work on or about January 13,1987, an employee [Robert Elliott]
suffered a strain in his left shoulder when the metal mold box he was pushing
stopped due to stuck rollers. The injury resulted in prescription medication
and lost work day(s). This injury was not recorded on the OSHA Form
200 024
Penalty assessed by the judge: $2000.
(j) While at work on or about December 11, 1986, an employee [Mark
Graves] suffered a hand injury when the bucket of a front end loader dropped
on it. The injury resulted in partial amputation of the left middle finger,
intravenous medication, prescription medication, hospitalization, and lost work
day(s). This injury was recorded on -the OSHA Form 200 as medical
treatment only?
Penalty assessed by the judge: $5000.
Judge Barkley noted that in determining the penalty, section 17(j) of the Act requires
the judge to give due consideration to the size of the employer, the employer’s good faith,
history of previous violations, and the gravity of the violation. He found that Hem employed
15 employees, had gross sales of approximately $500,000 per year and a net worth of
approximately $50,000. The judge rejected Hem’s contention that it had a good faith belief
that the injuries were not reportable. He was “convinced [that] Hem failed to report
occupational injuries, knowing they were reportable, in an effort principally to reduce his
workmen’s compensation premiums and, if possible, to avoid OSHA inspections.” Relying
on the testimony of Hem’s employees, the judge found that “[tlhere is ample evidence that
Hem had an ongoing policy of discouraging injury reporting.”
~4 Employee Robert Elliott strained his shoulder during work. He reported the injury to John Hem, who
suggested that they stretch the shoulder back into shape using a foundry crane. Elliott missed three days of
work due to the shoulder pain and visited a doctor who prescribed muscle relaxants.
z Employee Mark Graves had the nail bed on his finger surgically removed as a result of his accident. He
lost seven work days and had restricted use of his hand for a little more than a week following his return to
work due to the accident.
19
The judge specifically rejected “the Secretary’s invitation to consider Hem’s demands
for inspection warrants and failure to
\ comply with those warrants as reflecting on good faith”
because “Hem as a matter of right may require an inspection warrant.”
The judge found that “[t]he gravity of the violations and particularly the violation
alleged in item (j) is high.” The judge held:
Hem deliberately attempted to avoid OSHA inspections and isolate his
employees from the Act’s protection by not reporting the extent of Graves’
injury. I find any attempt to isolate employees from the protections afforded
by the Act, particularly when those employees work in an establishment where
they are more likely to be injured, to be’ especially grievous.
Hem contends, that in assessing the penalty, the judge did not give due consideration
to its size, its history of previous violations, and the gravity of the violation, as well as its
“economic ability.” Hem argues that the $13,000 penalty assessment for willful citation 1
is improper because it is over one-fourth of Hem’s net worth. Hem comparesthe amount
it was fined against the amounts large corpdrations are fined for willful citations, and argues
that “[t]hese fines, as measured against the net worth of those multi-billion dollar
corporations, do not in any respect compare in severity to the fines imposed here for record-
keeping violations.” Hem also contends that both the Secretary and the judge have
confused lack of credibility with lack of good faith, and that the lack of credibility should not
serve to show bad faith. Hem claims that the “payment of the fine would render
economically unfeasible Hern’s compliance with the safety standards required under prior
orders of the Commission.” Finally, Hem argues that the recent amendments to the Act
increasing the maximum allowable penalty under section 17(a) have no legal bearing on this
case, and “the amendments did not abrogate the protections afforded employers by 5 17(j).”
In his opening brief, the Secretary states that he has “chosen not to appeal” the
judge’s assessment of $13,000 in total penalties for five willful violations. He notes that the
judge found that Hem’s willful violations were of high gravity. The Secretary argues that the
Act mandates that penalties be assessed primarily in accordance with the characterization
and number of violations, rather than on “a formula of some sort based on the net worth
of the employer.” Citing R% Corp., 11 BNA OSHC 1163, 1181, 1983-84 CCH OSHD
ll 26,429, pp. 33,558-g (No. 79-3813, 1983), the Secretary contends that Congress clearly
20
intended that penalty assessments motivate behavior to achieve compliance with the Act?
The Secretary argues that “[i]n light of these considerations, Hem’s prior history of violating
the recordkeeping provisions, and Hem’s annual gross receipts of at least $500,000 a year,
a penalty assessment of $13,000 for five willful violations of the Act seems eminently
reasonable.”
Analysis
As the judge noted, under section 17cj) of the Act, the Commission has authority to
assess civil penalties, giving due consideration to the appropriateness of the penalty with
respect to the size of the business of the employer being charged, the gravity of the violation,
the good ftith of the’ employer, and the history of previous violations. 29 U.S.C. 5 666(j).
The four criteria to be considered in assessing penalties cannot always be given equal weight,
and “a particular violation may be so grave as to warrant the assessment of the maximum
penalty, even though the employer may rate
a perfect marks on the other three criteria.”
Nacirema Operating Co., Inc., 1 BNA OSHC 1001, 1003, 1971-73 CCH OSHD n 15,032, p.
20,043 (No. 4, 1972).
The judge found the gravity of the violations high, particularly item l(j) based on
what he described as Hem’s “attempt to isolate employees from the protections afforded
.
by the Act.” He found that the recordkeeping regulations served as the basis for gathering
information regarding the causes and prevention of occupational injuries and illnesses and
that Hem’s deliiierate refusal to report injuries frustrated these purposes. Neither the
Secretary nor Hem made any argument regarding the judge’s gravity finding. In Caterpillar,
the Commission categorized the gravity of a recordkeeping violation as low because such a
violation touches in only the most tangential way the factors that go to gravity: the number
of employees exposed to the hazard, the duration of the exposure, whether any precautions
26 The Secretary also relies on the House Conference Report on the amendments to section 17(a) increasing
the penalty amounts, which indicates that higher penalties were required to assure that “the most egregious
violators are in fact fined at an effective level.” (House Conf. Rep. No. 964, 1Olst Gong. 2d Sess. at 688439,
reprinted in 1990 U.S. Code Gong. & Admin. News 2393-94. We do not believe, however, that the legislative
history of a provision that raises the future penalty limits under the Act sevenfold has any particular bearing
on the amount of the penalties assessed under the prior version of section 17(a).
21
have been taken against injury, and the degree of probability that an accident would occur.
Catepillar, 15 BNA OSHC at 2178, 1993 CCH OSHD at p. 41,011.
Regarding citation items l(b), l(e), and l(g), the judge found that Hem demonstrated
less than good faith because it did not have a good faith belief that the injuries were not
reportable? Hem’s defense to these items was that it had a good faith belief that the
injuries required only first aid and were not reportable and that the judge improperly
considered lack of credr’bility to show a lack of good faith. However, we conclude that these
injuries were severe enough to support the judge’s conclusion that Hem could not
reasonably have concluded that the bums and shoulder injury would not require medical
treatment as defined on the OSHA 200 log. We also conclude that Hem’s failure to record
the lost workdays that resulted from these injuries is strong evidence of a lack of good faith
on Hein’s part. Hem’s contention that the judge confused lack of credibility with a lack of
good faith is without merit. The judge found quite plausibly that Mr. Hem’s testimony
lacked credibility. This led him to conclude that the reasons Mr. Hem gaVe for not
recording injuries were not believable and that therefore Hem lacked good faith.
The judge noted that Hem has a prior -history of the same violation, relying on a
December 7, 1982 citation for an other-than-serious violation of 29 C.F.R. 0 1904.6 for
failing to retain OSHA 200’s and its predecessors at its workplace for five years. The record
also establishes that Hem is a small employer.
Having considered the information in the record regarding the employer’s small size;
the low gravity of the violations; the lack of good faith of the employer; and the history of
previous violations, we conclude that a further reduction of the $2000 penalties the judge
imposed for items l(a), l(b), l( e ), and l(g) is appropriate. We therefore assess a penalty
A1For citation item l(a), John Hern testified that John Hern III’s injury to his face was not recorded because
it did not occur at the plant. John Hem, III did not testify at the hearing. An employee of Hem’s, Merle
Black, testified and described John Hem, III’s injury at the plant. The judge found that John Hem’s testimony
was not credible, and found that John Hem, III’s injury was the result of the occupational injury as described
by Black
For citation item l(j), Hem admitted to the failure to record lost workdays for Graves’ injury. The judge
found that the failure to report the lost workdays was intentional both in order to avoid an OSHA inspection
and to keep the workmen’s compensation premiums low.
22
of $1000 for each of these items. For item l(j), we find that the $SooO penalty assessed by
the judge is appropriate.
IV. Order
Accordingly, we find that the judge did not err in vacating item (d) of willful citation
no. 1 and did not err in finding item (j) of citation no. 1 willful as alleged. We reduce the
penalties for wiWu1 items l(a), l(b), l( e )) and l(g) to $1000 each and afEirm the $5000
penalty for willful violation l(j).
Commissioner
Dated: April 27, 1993
FOULKE, Chairman, concurring in part and dissenting in part:
I concur with most of the majority opinion. However, I believe that the majority
erred in affirming the judge’s characterization of citation no. 1, item (j) as a willful violation.
Accordingly, I dissent from the majority’s decision regarding that item, and would instead
find an other-than-serious violation of the Act.
The majority’s legal test for willfulness is correct. I would only reiterate that a willful
violation requires proof of a heightened awareness of the illegality of the conduct or
conditions and by a state of mind of conscious disregard or plain indifference. In
determining this state of mind, the majority draws inferences from the testimony of past and
present Hem employees. Although this testimony provides scattered impressions of a poor
record keeping program, it does not support the inference that Hem’s failure to properly
record the lost workdays for Graves’ injury on the OSHA 200 form was willful.
For example, former employee Todd Ingram testified that he was told to report all
injuries to a foreman, but was told never to file reports indicating on-the-job injuries.
However, no evidence exists to indicate that Hem had instructed its foremen to omit filings
or do anything more than receive injury reports as part of their supervisory responsibilities.
Ingram also testified that he could not go to a doctor without permission, and that he did
not want to report his injuries for fear of losing his job. However, this testimony does not
establish that Hem had a policy of not recording worker’s injuries on the OSHA 200 form.
Employee Robert Elliott testified that he understood that Hem’s “standing” policy was to
avoid involving the state industrial commission through the filing of workmen’s compensation
claims, and that if the employees “made waves,” they would lose their jobs. Here, however,
Hem did file a workman’s compensation claim for Graves’ injury, and there is no evidence
that the employees’ fear of being fired was for anything more than a failure to follow
workplace rules. Elliott also did not testify about any policy of Hem’s to not record a
worker’s injury. In short, the rrmplovees’
. testimony fails to demonstrate an intent by Hern
to inadequately report or fail to report injuries on the OSHA 200 form.
In addition, there is record evidence supporting Hem’s assertion that its failure to
record Ingram’s lost workdays on the OSHA 200 form was an accident. Hem recorded and
filed the lost workdays on the Idaho Industrial Commission Notice of Injury and Claim for
Benefits form. As noted in the majority decision, OSHA would have discovered the lost
2
workdays if it had reviewed the Industrial Commission’s records. It would be incongruous
for Hem to engage in a purposeful act of evasion from an OSHA inspection by failing to
report Graves’ lost workdays on the OSHA 200 form, ronly to immediately thereafter
acknowledge the lost workdays on the Idaho Industrial Commission Notice of Injury and
Claim for Benefits form.
I therefore conclude that the Secretary failed to prove by a preponderance of
evidence that citation item l(j) is willful in nature. I would therefore find that the violation
was other-than-serious.
- **
Chairma;
Date& April 27, 1993
MONTOYA, Commissioner, concurring in substantial part and dissenting in part:
I agree with the majority’s decision, except for the penalties assessed for citation no.
1, items l(a), l(b), l(e), and l(g) involving Hern’s failure to record his employees’ injuries
on the OSHA 200 log. The Sxretary proposed penalties of $10,000 for each item, and the
judge assessed $2000 for each item after finding them to be willful violations. The majority
reduced these penalties from $2000 to $1000 each. I would assess a penalty of $2000 for
each violation based on the penalty factors in section 17(j) of the Act. In particular, I would
note that the injuries sustained by the employees were severe enough that Hem could not
in good faith claim that they should not have been recorded on the OSHA 200 log.
Commissioner
Dated: April 27, 1993
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1825 K STREET NW
4TH FLOOR
WASHINGTON, DC 20006- 1246
FAX.
COM (202) 634-4006
ms (202) 634-4006
SECRETARY OF LABOR,
Complainant,
v. .. Docket No. 89-433
..
HERN IRON WORKS, INC., ..
..
Respondent. ..
. .
NOTICE OF COMMISSION DECISION
The attached decision by the Occupational Safety-and Health Review Commission was issued on
Anil 2% 1993. ANY PERSON ADVERSELY AFFECTED OR AGGRIEVED WHO WISHES TO
OBTAIN REVIEW OF THIS DECISION MUST FILE A NOTICE OF APPEAL WITH THE
APPROPRIATE FEDERAL COURT OF APPEALS WITHIN 60 DAYS OF THE DATE OF THIS
DECISION. See Section 11 of the Occupational Safety and Health Act of 1970, 29 U.S.C. 5 660.
FOR THE COMMISSION
April 27, 1993
Date Ray a .
Executive Secretary
Docket No. 89-433
NOTICE IS GIVEN TO THE FOLLOWING:
Daniel J. Mick, Esq.
Counsel for Regional Trial Litigation
Office of the Solicitor, U.S. DOL
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210 ..__*_
Robert Friel, Esq.
Associate Regional Solicitor
Office of the Solicitor, U.S. DOL
111 I Third Avenue, Suite 945
Seattle, WA 98174
Havey Richman
Attorney at Law
111 North 2nd Street
Suite 200
Coeur D’Alene, ID 83814
Gary N. Herbert, Esq.
Mountain States -Legal Foundation
1660 Lincoln Street, Suite 2300
Denver, CO 80264
James Barkley
Administrative Law Judge
Occupational Safety and Health
Review Commission
Room 250
1244 North Speer Boulevard
Denver, CO 80204-3582
UNITED
StAtES
OFAMERCA
OCCUPATIONAL SAFETVANDtlEALTH REV~EWCOMMISSION
162sKSlREEr N.W.
OH FLOOR
WASH~NGTOM DC. 2Qoo61246
FAX W (202) 6344008
April 6, 1990.
.
IN REFERENCE TO SECRETARY OF IABOR v.
OSHF
Hem Iron Works, Inc. DOCKET NO. 89-433
NOTICEIS GIVEN TO THOSE LISTED BELOW:
NOTICEOF DOCKETING 8
Daniel 3. Uiclc,Esq. Notice is given that the above case was
Counsel for Regional Trial Litigation docketed with the Commission on
Office of the Solicitor, USDOL 4/6/90 'The decision of the
200 Constitutionhe,, N. Y., Room S-4004 Judge will become a ha1 order of the
Washington, 0. C. 20210 &mission on 5/7/90 unless a
Commission umber directs review of the
decision on or before that date.
Robert Friel, Assoc. Regional Solicitor
Office of the Solicitor, USDOL Petitions for discretionary review should be
1111 Third Avenue, Suite 945 received on or before 4/26/90 in
Seattle, WA 98174 6
order to permit sufficient time for their
review. See Comnissfon Rule 91, 29 C.F.R.
sec. 2200.91. Under Rule 91(h) petitioning
Harvey Richman corporations must also file a declaration of
Attorney At Law parents, subsidiaries, and affiliates.
111 North 2nd Street
Suite 200 . All pleadings or other docmentq that may be
Coeur d'Alene, ID 83814 filed shall be addresses as follows:
Executive Secretary
Occupational Safety and Health
Gary N. Herbert, Esq. Review Comission
Mountain States Legal Foundation 1825 K St., NJ., ROO@I001
1660 Lincoln Street, Suite 2300 Washington, D. C. 20006-1246
Denver, CO 80264
A copy of any petition for discretionary
review must be served on the Counsel for
Regional Mat Litigation, Office of the
Solicitor, USDOL, 200 ConstitutionAve.,
Judge James H. Barkley . NJ., Room 54004, Washington, D. C. 20210.
OSHRC If a Direction for Review is filed the Counsel
1244 N. Speer Blvd. for Regional Trial Litigation will represent
Room 250 the Department of Labor.
Denver, CO 80204
FOR THE CQUISSION -
Ray H. Darling, Jr.
Executive Secretary
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
SECRETARY OF LABOR,
Complainant,
v. OSHRC DOCKET
NO. 89-0433
HERN IRON WORKS, INC.,
Respondent.
APPEARANCES:
For the Complainant:
William W. Kates, Esq., Office of the Solicitor,
U.S. Department of Labor, Seattle, WA
I.
For the Respondent:
Harvey Richman, Esq., Coeur d'Alene, ID
Gary N. Herbert, Esq., Mountain States Legal
Foundation, Denver, CO
DECISION AND ORDER
Barkley, Judge:
This proceeding arises under the Occupational Safety and
Health Act of 1970 (29 U.S.C. Section 651 et seq.; hereafter
called the wAct@*).
Respondent, Hem Iron Works, Inc. 8 operates a cast iron
foundry with a place of business in Coeur d@Alene, Idaho where
it employs approximately fifteen (15) employees. Respondent
(referred to variously as Hem or respondent) does not dispute
.
it is engaged in a business affecting commerce and is, there-
fore, &ermployer within the meaning of the Act and subject to
the Act.8 requirements.
On July 26, 1988 the Occupational Safety and Health
Administration (OSHA) conducted an inspection of respondent's
workplace. On January 24, 1989 respondent was issued citations
and proposed penalties pursuant to the Act (Tr. 381, 455-456).
By filing a timely notice of contest respondent brought this
proceeding before the Occupational Safety and Health Review
Commission (Commission) contesting the citations and the pro-
posed penalties.
Alleged Violations
Willful Citation 1
Respondent is alleged to have violated 29 C.F.R.
1904.2(a). The relevant portion of that standard states:
Part 1904 - Recording and Reporting Occupational
Injuries and Illnesses
51904.2 Log and summary of gccupational injuries and
illnesses.
Each employer shall, except as provided in
(a)
paragraph (b) of this section, (1) maintain in each
establishment a log and summary of all recordable
occupational injuries and illnesses for that estab-
lishment: and (2) enter each recordable injury and
illness on the log and summary as early as practica-
ble&&W no later than 6 working days after receiving
infomtion that a recordable injury or illness has
occusredo For this purpose form OSHA No. 200 or an
equivalent which is as readable and comprehensible to
a person not familiar with it shall be used. The log
and summary shall be completed in the detail provided
in the form and instructions on form OSHA No. 200.
2
Section 1904.12(c) provides:
(c) "Recordable occupational injuries or ill-
nesses" are any occupational injuries or illnesses
which result in:
(1) Fatalities, regardless of the time between the
injury and death, or the length of the illness; or
(2) Lost workday cases, other than fatalities,
that result in lost workdays: or
0 Nonfatal cases without lost workdays which
result in transfer to another job or termination of
employment, or require medical treatment (other than
first aid) or involve: loss of consciousness or
restriction of work or motion. This category also
includes any diagnosed occupational illnesses which
are reported to the employer but are not classified
as fatalities or lost workday cases.
"Medical treatmenttV and "first aid" are defined at 29
C.F.R. §1904.12 as follows:
Section 1904.12 Definitions.
. * * * *
w "Medical treatmenF includes treatment
ministered by a physician under the standing orders
of a physician. Medical treatment does not include
first aid treatment even though provided by a physi-
cian or registered professional personnel.
(e 1 **First Aid" is any one-time treatment, and
any followup visit for the purpose of observation, of
minor scratches, cuts, burns, splinters, and so
forth, which do not ordinarily require medical care.
Such one-time treatment, and followup visit for the
purpose of observation, is considered first aid even
though provided by a physician or registered profes-
sional personnel.
The willful citation alleges nine (9) instances in which
respondent failed to record occupational injuries on the OSHA
log of occupational injuries (OSHA Form 200) and one (1) in-
stance in which the injury was reported but its severity was
underreported.
Other Than Serious Citation 2
Respondent is alleged to have violated 29 C.F.R. 1904.4,
That standard provides:
1904.4 Supplementary record.
In addition to the log of occupational injuries and
illnesses provided for under 51904.2, each employer shall
have available for inspection at each establishment within
6 working days after receiving information that a record-
able case has occurred, a supplementary record for each
occupational injury or illness for that establishment.
The record shall be completed in the detail prescribed in
the instructions accompanying Occupational Safety and
Health Administration Form OSHA NO. 101. If no acceptable
alternative record is maintained for other purposes, Form
OSHA No. 101 shall be used or the necessary information
shall be otherwise maintained.
The citation alleges that for each of the nine instances
where respondent failed to report an injury on the summary log
(OSHA 200) respondent also failed to keep a supplementary
record of the injury on the OSHA Form 101 or the equivalent.
At the hearing, the Secretary moved to amend Willful
citation 1 to allege 10 separate violations of the cited stan-
dard, rather than 10 instances of the same violation and Other
than serious citation 2 to allege 9 violations of 51904.4
rather than 9 instances of the same violation (Tr. 22). Ruling
was reserved. Having considered the arguments, the motion is
granted. The amendment does not change the facts, the legal
theory, the characterization of the violation or the proposed
penalty and does not prejudice respondent. The amendment
effectuates the original intent to allege ten (10) separate
u
violations as evidenced by the penalty of $100,000 which is ten
times that provided for a single willful violation.
The Secretary then moved and was granted leave to withdraw
item (i) of both the Willful and the Other than serious cita-
tions (Tr. 405).
. Facts
An employer is selected for an inspection based on its
history of occupational injuries (Tr. 311). If upon reviewing
the employer's occupational injury records the employer has
lost work days or restricted- occupational activity due to
injuries (LWDI) above the national average, the employer is
inspected
. (Tr. 368)? Hem's injury reports i.e., the OSHA
Form 101 and Form 200 for the year 1986 would not have trig-
gered an inspection (Tr. 372), Had one lost workday case been
recorded by Hern in 1986, it would have triggered an OSHA
inspection of Hem's entire facility (Tr. 353), a fact of which
Hern was aware (Tr. 4 19). .
Hem received a previous citation in 1982 for failure to
maintain OSHA Forms 101 and 200 and for failing to retain such
forms for the preceding five years (Ex. C-11). The citation
was informally settled (Ex. C-13). As part of the settlement
Hem submitted injury reports for 1980 and 1981 and OSHA re-
duced the penalty to $50.00. The penalty remains unpaid (Tr.
1 If the employer% LWDI falls below the national average
an employee complaint will trigger an inspection only of the
complaint items rather than a "wall-to-walP inspection (Tr. 368).
5
323). Hem understood the recordkeeping requirements of the
Act (Tr. 439).
Item (a),
Item (a) alleges:
(a) While at work on or about September 21, 1987, an
employee suffered a laceration on his chin (lip) when
an aluminum pattern blew up. The injury resulted in
medical treatment with several stitches taken in the
lower lip. This injury was not recorded on the OSHA
Form 200.
At the hearing, Merle Black, a millwright and machinist
for Hem between 1981 and 1987 (Tr. 31), testified regarding an
injury to another employee, John Hern III, the son of John
Hern, respondent's president (Tr. 51, 95). Black had not seen
the accident which resulted in the injury but had been in the
area when it happened, heard the incident and had seen the
resultant injury (Tr. 32, 48).
Black was told by John Hem III, that Hem had packed
sand around a welded sprocket pattern to form a casting mold
and was trying to remove the pattern from the sand. The pat-
tern became stuck and Hern attempted to remove it by applying
air pressure between the pattern and the mold. A loose welded
portion of the pattern was blown up into the face of Hern,
striking him in the lower right jaw (Tr. 35036,42). Two days
following the incident, Hern showed Black sutures in his lip
while describing how the accident had happened (Tr. 36, 42).
John Hem testified that his son had not told him of any
injury at the plant but had told him that he "felP* while
cleaning the garage (Tr. 421, 450).
6
Discussion aqd Conclusions
placement of sutures is medical treatment. A cut requir-
ing sutures is reportable if the cut resulted from an occupa-
tional injury. Black testified the cut was the result of an
occupational injury. Hern testified his son V'fellB*
while he
was cleaning a garage and therefore the cut was the result of a
non-occupational injury. John Hern III did not testify. Thus
it becomes necessary to weigh the credibility of the witnesses.
Black's testimony was not only convincing in its detail
but was coherent, facially plausible, uncontradicted by extrin-
sic evidence and internally consistent. See, Anderson V.
Bessemer Cite North Carolina 470 U.S. 564 (1984). Moreover,
having observed his demeanor, I am convinced of Black's candor
and veracity.
On the other hand, having observed the demeanor of Hern,
heard the tone of his voice, observed his eagerness to answer
at times and his hesitation at other times, this Judge con-
cludes Hem's testimony deserves less weight than that of
opposing witnesses. After considering the body of Hem's
testimony, I found that portions of that testimony were im-
plausible and internally inconsistent. I am further persuaded
by the fact that Hern is a party with a substantial interest to
protect while opposing witnesses, past and present employees,
had nothing to gain and in fact may have faced some risk in
testifying adversely to Hern.
Having determined that Hem's testimony is not credible,
it is appropriate to determine what, if any, inferences may be
drawn from his testimony. The fact finder is free on the basis
of an incredible witness's demeanor to assume the truth of what
the witness denies, although such inference standing alone
cannot support a finding. U.S. v Marchand, 564 F.2d 983 (2nd
Cir. 1977) cert. denied 98 S.Ct. 73. In this case it is ap-
propriate to do so.
For the reasons set forth above, I find incredible the
conclusionary and implausible assertion by Hern that his son
cut his lip in a fall while cleaning the garage. I find,
rather, that the cut of John Hem III was the result of the
occupational injury described by Black. Accordingly, I find
respondent violated 29 C.F.R. 51904(a) as alleged in item l(a).
The Secretary has alleged the violation to be a willful
violation. In Williams EnterDrises, Inc., 13 BNA OSHC 1249,
1256 (No. 85-355, 1987) the Review Commission held that:
A violation is willful if committed "with intention-
al, knowing or voluntary disregard for the require-
ments of the Act or with plain indifference to em-
ployee safety." (citations omitted)
Hem argues he had no reason to omit a reportable injury
since the injuries he did report were sufficient to trigger an
OSHA inspection and that his failure to report the cited in-
juries resulted from his good faith belief that the cited
injuries did not meet the definition of a reportable injury.
This argument is contradicted by both the facts and Hern*s
later testimony. I am convinced Hern failed to report occupa-
8
tional injuries, mowing they were reportable, in an effort
principally to reduce his workmen's compensation premiums and,
if possible, to avoid OSHA inspections.
In lieu of completing an OSHA Form 101 (the individual
report of injury) an employer is permitted by the regulation to
use an equivalent form. Hern used the Idaho Industrial Commis-
sion Notice of Injury and Claim for Benefits in lieu of the
OSHA Form 101 (Tr. 449; Ex. C-8). These forms, signed by the
employee, served the dual purpose of initiating a state claim
for benefits and substituting for the OSHA Forms 101 which are
summarized in the OSHA Form 200 log of injuries (Tr. 449).
Failure to notify the Industrial Commission of an injury and
to claim benefits would simultaneously result in a failure to
notify OSHA of a reportable injury, while failure to notify
OSHA of an injury served to conceal the injury from the
Industrial Commission.
There is ample evidence that Hem had an ongoing policy of
discouraging injury reporting. Employee Merle Black testified
that on hiring he was told to report all injuries to the fore-
man, never to file any reports claiming on-the-job injuries
and to obtain permission before going to see a doctor (Tr. 94).
Ingram, items (d) and (h) below, testified that he was told to
report all injuries to a foreman, but that he was never to
file reports indicating on-the-job injuries and that he could
not go to a doctor without permission (Tr. 94). He did not
want to report his injuries to the State Industrial Commission
9
for fear of losing his job (Tr. 101,120,137). Elliott, a cur-
rent employee (Tr. 151) items (b) and (g) below, testified that
he understood from other employees, including his SuperVisor,
that Hern*s "standing" policy was to avoid involving the State
Industrial Commission through the filing of workmen's compensa-
tion claims. If employees "made waves N they would lose their
jobs (Tr. 1600162,165,184).
Hem's premiums for workmen's compensation were based in
part on his injury rate (See Hem's testimony (Tr. 448) con-
tradicting his earlier assertion that OSHA forms did not deter-
mine his premiums (Tr0 419)). The more injuries Hem's
employees reported, the higher Hem's premiums. Moreover, if
no injuries were reported, as in 1986 (discussed under item j)
Hern could also avoid an OSHA inspection.
This Judge finds Hern*s assertion that he had no motiva-
tion in not reporting injuries to be contradicted by his own
later testimony, established fact, and the testimony of his own
employees. Hem had a substantial financial interest in not
reporting occupational injuries which he knew to be reportable.
Specifically, I find that Hem purposely failed to record
the injury cited here. At the time of his injury John Hern III
was 19 years old and lived at home with his father. His father
had ample opportunity to know the cause and extent of his son's
injury (Tr. 449). By this time the elder Hern had received a
prior citation for recordkeeping, had negotiated and entered
into a settlement agreement, and had provided corrected copies
10
of the OSHA From 200 to settle the prior citation. As Hern
testified he was well conversant with the recordkeeping re-
quirements of the Act (Tr. 439). The prior citation not only
served to educate Hern in the Act's recordkeeping requirements
but also served to warn him that his past recordkeeping prac-
tices were unacceptable.
Based on Hem's knowledge of the Act% recordkeeping
requirements, his prior citation, his knowledge of the cause
and severity of his son% on-the-job injury, and given his
practice of discouraging the filing of accident reports, I find
that Hern*s failure to report the injury was willful.
Item l(a) of Willful citation 1 is affirmed as a willful
violation.
Item (b)
Item. (b) alleges:
w While at work on or about March, 1987, an em-
ployee suffered a second or third degree burn on his
left foot when molten metal ran out of a mold and
into his boot. The burn resulted in a scar approxi-
mately 3/4 inch by 2 inches. This injury was not
recorded on the OSHA Form 200.
Robert Elliott, employed with Hem Iron from September
1986 to March 1987 (Tr. 150), testified that around the first
of March 1987, he suffered a burn to his foot when a mold let
loose and hot metal poured down into his boot, burning a hole
through his boot and sock (Tr. 157). The 1% l-1/2" burn was
cleaned and bandaged with a salve at the office (Tr. 157).
The burn was reported to Hern. Hem discouraged Elliott's
suggestion that he see a doctor (Tr. 157). The burn took
11
-
approximately two months to heal (Tr. 158). Elliott testified
that he missed no work and suffered no work restrictions be-
cause of it (Tr. l68), though he was a "little bit slower on
some things, like walking and running (Tr. 182).
Discussion and Conclusions
A burn caused by molten metal that burns through a boot
and sock, measures 1 inch by l-1/2 inches, takes two months to
heal and causes some restriction in walking and running is a
reportable injury due to the resultant restriction in Elliott's
movement. There is further evidence Elliott would have visited
a doctor had he not been discouraged by Hern. Had Elliott
visited the doctor the severity of the injury would likely have
resulte'din medical treatment.
Hern had contemporaneous knowledge of the injury and its
extent. Failure to report the injury is a violation of 29
C.F.R. 91904.2(a).
The Secretary alleged the violation to be willful. Hern *
again claims that he had a good faith belief the injury was
not reportable and that the violation therefore cannot be
willful, citing C. N. Flaw & Co., 2 BNA OSHC 1539 (No. 1409,
1975). However, for an employer to take advantage of the V8good
faith" deense, the employer must in fact believe his actions
meet the regulation's requirements, and such belief must be
reasonable. Western Watemroofina Co. v Marshall. 576 F.2d 139
(8th Cir. 1978).
12
Hem testified he believed Elliott*s burn would require
only first aid treatment and therefore was not reportable.
Given the size of the burn: the fact that it was caused by
molten metal burning through a boot; that the employee re-
quested medical treatment: that the appearance of the burn was
necessarily consistent with the appearance of a burn that would
require two (2) months to heal, I find Hern could not reasona-
bly conclude the burn would not require medical treatment.
Based on the above facts, Hern*s lack of credibility, the prior
citation, Hem's knowledge of 'the recordkeeping requirements
and on his policy of underreporting injuries, discussed above,
I specifically reject Hem's assertion that he had a good faith
belief.the burn was not reportable. Hem's failure to report
this injury is a willful violation.
Item (b) of Willful citation 1 for failure to report an
occupational injury is affirmed as a willful violation of 29
C.F.R. 51904.2(a).
Item (c)
Item (c) alleges:
( C 1 While at work on or about April, 1987, an em-
ployee suffered a second or third degree burn on his
right foot when molten metal burned through his boot.
The burn left u scar approximately l/4 inch in dia-
meter. This injury was not recorded on the OSHA Form
200.
Herbert J. Lindsey testified that during his employment at
Hem's workplace, between September 1986 and April 1987 (Tr.
64065)~ he received a burn approximately the size of a dime on
A
his right foot when molten metal burned through his boot during
13
a pour (Tt. 6%66,71). Mr. Lindsey, a trained emergency medi-
cal technician, did not seek medical treatment for the burn,
but dressed the burn himself (Tr. 72-73). The burn blistered
and eventually scabbed over (Tr. 72). Lindsey did not report
the burn to anyone at Hem (Tr. 66). He testified that he
*gprobablyggmentioned it to his foreman, Mr. Hoppi Moffitt,
because they were close friends (Tr. 67, 78).
Discussion and Conclusions
In Astra Pharmaceutical Products, Inc., 9 BNA OSHC 2126
(No 0 78-6247, 1981), the Commission set out generally the
Secretary's burdens.
In order to prove a violation of section 5(a)(2) of
the Act, 29 U.S.C. 5654(a)(2), the Secretary must.
show by a preponderance of the evidence that (1) the>..
cited standard applies,- (2) there was a failure to
comply with the cited standard, (3) employees had
access to the violative condition and (4) the cited
employer either knew or could have known of the
condition with the exercise of reasonable diligence.
In Continental Electric Companv, 13 BNA OSHC 2153 (No. 83-921,
1989), the Commission discussed in greater detail the fourth
burden. In note 4 the Commission stated that )(. . . knowl-
edge of conditions that fail to comply with a standard is a
necessary prerequisite to finding an employer in violation of
the Act, regardless of the characterization of the violation
Lindsey did not report the burn which is the subject of
this item. Hern cannot be held accountable for fai1ur.e to
report an injury of which it had no knowledge. Lindsey's
'testimony that he "probablyt*'mentioned'
the burn to Hoppi, a
14
friend and his foreman is insufficient to carry the Secretary's
burden on this element.
It- (c) of Willful citation 1 is hereby vacated.
Item (dj
Item (d) alleges:
w While at work on or about June 9, 1987, an
employee suffered a second or third degree burn on
his arm when a mold he was shaking out fell against
it. The burn was severe enough to bleed, and left a
scar approximately l-l/2 by l/4 inch. This injury
was treated at work. This injury was not recorded on
the OSHA Form 200.
Todd Ingram, a Hern employee from December 1985 to Novem-
ber 1986 (Tr. 9O)1 testified that around June 1987 he received
a burn when a hot mold fell against his left forearm (Tr. 1040
105): The burn was about 1 to l-1/2 inches long and l/4 inch
wide and was swelling, blistering and bleeding (Tr. 105).
The burn was cleaned and dressed by the secretary in the
office (Tr. 105). Mr. Ingram% wound was bandaged about a
week.' He did not seek medical treatment because he did not
feel it was warranted (Tr. 105). Ingram stated that he had
full use of his arm immediately after the burn (Tr. 106).
Discussion and Conclusions
The record contains no evidence that establishes this burn
meets the criteria of a reportable injury. Ingram received
one-time first aid treatment and thereafter had full use of his
arm. The arm, observed by this Judge, showed little or AO
scarring, which is inconsistent with a burn of such severity
15
as to require medical treatment. The injury was not report-
able.
Item (d) of Willful citation 1 is hereby vacated.
Item (e)
Item (e) alleges:
(e 1 While at work on or about July, 1987, an
employee suffered a second or third degree burn on
his left arm when the furnace blew up. The burn was
treated at work. The injury resulted in the arm
being bandaged for over a month, and lost work
dayW" This injury was not recorded on the OSHA
Form 200.
Stanley Kaminski was employed as a shop foreman with Hern
from April 1987 to August 1989 (Tr. 189)e In July, 1987
Kaminski allowed excess pressure to build up in a furnace.
The furnace blew up and released heated gas which burned -his
right arm from above the elbow, halfway to his wrist (Tr. 1900
191, 194). Kaminski had the burn salved and wrapped in the
Hem office (Tr. 191). He kept the arm bandaged for approxi-
mately 2 to 2-l/2 weeks (Tr. 192). (See
- also,
- testimony of
Black, pp. 42-47; Ingram, pp. 107-108). The bandages were
changed and ointment applied daily (Tr. 193).
Kaminski testified that although he was out of work fol-
lowing the injury, his absence was previously scheduled in
order forshim to attend a wedding and was not due to his injury
(Tr l 196-197). The burn was some hindrance to performing his
job (Tr. 192-3
16
DiscussiQn md Conclusions
A burn that requires a daily change of bandages and the
application of ointment to prevent infection for over two weeks
and restricts the employee's movement, even moderately, is a
reportable injury. The record amply establishes that
Kaminski's injury was common knowledge throughout the plant.
Hern*s failure to report the burn is a violation of 29 C.F.R.
51904.2(a).
The violation was alleged to be a willful violation. Hern
again asserts he believed the burn was one that required first
aid only and therefore was no reportable. For the reasons set
forth earlier I do not accept the credibility of this 'state-
ment. Given the extent of this burn, HerrPs knowledge of both
the burn and of the reporting requirements, the warning im-
parted by the prior citation, and Hem's established practice
of discouraging the reporting and medical treatment of injur-
ies, I find this violation to be willful.
Item (e) of Willful citation 1 is affirmed as a willful
violation.
Item (f)
Item (f) alleges:
(0 While at work on or about June 8, 1987, an
employee suffered a foot injury when he dropped a
forty (40) pound flange on it. The injury resulted
in prescription medication, recommendation not to
work for 4 or 5 days and the employee was fired.
This injury was not recorded on the OSHA Form 200.
On June 24, 1987, Clarence Moffitt filed a Notice of
Tnjury and Claim for Benefits with the State of Idaho
17
Industrial Commission (Ex'. C-10). In the Notice, Moffitt
stated that on June 8, 1987 a 40 pound flange was dropped on
his right foot, resulting in bruising and a spit (sic) nerve.
The Notice also states that the employer learned of the injury
on June 17, 1987 and that Mr. Moffitt was fired because of it.
Moffitt did not testify. A copy of Moffitt's report to the
Industrial Commission (Ex0 C-10) was the Secretary's only
evidence for this injury.
I find that the Industrial Commission Report.,a one page
questionnaire completed by an employee for the purpose of
obtaining wor)anen% compensation benefits, contains insuffi-
cient information to carry the Secretary's burden on ala ele-
ments of this alleged violation by a preponderance of the
evidence. Neither lost/restricted time, nor medical treatment
required, if any, are established by the form.
Item (f) of Willful citation 1 is hereby vacated
Item (g) alleges:
While at work on or about January 13, 1987, an
employee suffered a strain in his left shoulder when
the metal mold box he was pushing stopped due to
stuck rollers. The injury resulted in prescription
medication and lost work day(s), This injury was not
recorded on the OSHA form 200.
Robert Elliott testified that in January 1987 he strained
his shoulder pushing 3h 4' flats down a roller (Tr. 151-152).
Elliott stated that he reported the injury to John Hern, who
suggested that they stretch the shoulder back into place using
18
a foundry crane (Tr. 152, 172-173). Mr. Elliott held on to a
crane, while Mr. Hem lifted him into the air (Tr. 153).
Elliott testified that he worked the remainder of that day
and the entire day following, however, the shoulder remained
sore and he missed the next three (3) days of work (Tr. 153,
175). Elliott visited a Dr. Riggs, recommended by the secre-
tary in Hem's office, on the day following the injury (Tr.
153-154, 176-178; Ex. C-8). Muscle relaxants were prescribed
for the injury (Tr. 177).
Elliott stated that his supervisor was aware of the reason
for his absence (Tr. 170). John Hern testified that Elliott
punched a time card for every day around the date of the al-
leged injury except January 13 (Tr. 428, 442)@ however, the
time cards were not produced by Hem even though he testified
he reviewed them the morning of the hearing (Tr. 442).
Discussion and Conclusions
Elliott% injury clearly was an occupational injury: Hern
implies that Elliott did not in fact suffer any lost time and
therefore the injury is not reportable. Hem's assertion is
based on an alleged review
. of Elliott's time cards for several
days surrounding the injury (Tr. 442). Because Hem failed to
produce the time cards, clearly important evidence which was
in Hem's possession the morning he testified, and for reasons
previously explained I find Hem's testimony not to be credi-
ble. I find, as Elliott testified, he missed three days as a
19
result of the injury. Accordingly, the injury was reportable,
The failure to do so was a violation of 29 C.F.R. §1904.2(@,
The Secretary alleges the violation to be willful. Again
Hem contends he reasonably believed the injury required noth-
ing more than first aid and was therefore not reportable. For
the reasons discussed under the preceding sections, I cannot
conclude Hem had either a good faith or reasonable belief that
Elliott's injury was not reportable.
Item (g) of Willful citation 1 is affirmed as a willful
violation.
Item (hl
Item (h) alleges:
(h) While at work on or about May 11, 1987, an
employee suffered a back injury when the bucket
loader he was operating hit a bump causing him to
fall on the back of the seat. The employee received
treatment from a chiropractor on several occasions
for this injury. This injury was not recorded on the
OSHA Form 200.
Todd Ingram, a Hern employee from December 1985 to Novem-
ber 1986 (Tr. 90), testified that on May 11, 1987 he was opera-
ting a bucket loader, dumping sand (Tr. 99). As he moved the
loader downhill backwards, it went over some bumps, and threw
him up in the
. seat (Tr. 99).
c. Mr. Ingram stated that the inci-
dent injured his back (Tr. 99).
Ingram mi,ssed no work due to the incident (Tr. 116-117).
The following week Ingram visited a chiropractor, a Dr.
Schwartz, who took x-rays, Dr. Schwartz performed some **ad-
justments" on Ingram's back, and recommended that he take hot
---- 20
showers and refrain from sitting (Tr. 100-101, 117). Dr.
Schwartz also recommended that Ingram take some time off work
and return for further treatment (Tr. 101). Ingram stated that
he visited Dr. Schwartz a few more times (Tr. 102).
Ingram testified he reported the injury to his foreman,
Stanley Kaminski, as he had been instructed by Hem at hiring
(Tr 0 94 I 100, 116, 199). Kaminski testified that he felt
Ingram had mentioned the incident merely in passing and was not
registering a *VformalV1
complaint (Tr. 198499). Ingram did not
file an injury report until the -followingNovember (Tr. 102).
Kaminski was aware Ingram visited a chiropractor, but
believed that those visits were related to a previous work-
related injury (Tr. 139, 201). Ingram had back problems prior
to working at Hern Iron (Tr. 122423). OSHA's Area Director
testified that reasonable minds could disagree over whether
this injury was reportable (Tr. 385).
Discussion and Conclusions
The testimony of Ingram is at times unclear and contradic-
tory. Moreover, OSHA's Area Director admitted that the injury
was not clearly recordable. I cannot conclude that the Secre-
tary proved by a preponderance of the evidence that: Ingram's
back injury resulted from his employment with Hem rather than
a pre-existing injury; that Ingram's discussion of the injury
with Kaminski was sufficient to provide respondent with the
requisite knowledge; or that chiropractic treatment is the
21
equivalent to medical treatment under the regulation.
Item (h) of Willful citation 1 is hereby vacated.
Item (j) alleges:
0
(I) While at work on or about December 11, 1986, an
employee suffered a hand injury when the bucket of a
front end loader dropped on it. The injury resulted
in partial amputation of the left middle finger, .
intravenous medication, prescription medication,
hospitalization, and lost work days(s). This injury
was recorded on the OSHA Form 200 as medical treat-
ment only.
On December 11, 1986, Mark Graves, a 4 year employee of
Hem Iron, injured the middle finger of his left hand helping
move a sprocket off a shaker (Tr. 142). As a result of the
injury Graves was hospitalized and had the nail bed on that
finger surgically removed (Tr. 143-144). Graves lost seven
(7) work'days and had restricted use of his hand for a little
more than a week following his return to work due to the acci-
dent (Tr. 143, 148).
Graves' injury was recorded as an Injury Without Lost
Workdays in respondent's log of occupational injuries and ill-
nesses (Tr. 233; Ex. C-4). Respondent concedes its failure to
report the injury as a lost time accident was a violation of
the recoweeping requirements (Tr. 77) and I so find.
The violation was alleged to be a willful violation. Hern
asserts that had OSHA reviewed the State Industrial Commis-
sion's records it would have discovered the injury and hence
Hem had no motive not to report the injury. I am convinced
otherwise. This was a serious occupational injury that resul-
22
ted in seven lost workdays and a severely disfigured finger.
The injury was noted in the 1986 Summary of Occupational
Injuries, OSHA Form 200, but no reference is made to the fact
that the employee suffered lost workdays (Exl C-4). Hern
asserts this was simple negligence. It appears to this Judge
the summary was completed in a fashion deliberately designed to
mislead OSHA inspectors into believing this was not a lost time
accident which would trigger an inspection. Hem's response to
the request for a description of the injury is unresponsive,
providing instead the cause of the injury. In each of four
separate columns relating to lost days or restricted activity
injuries Hern indicated there were no lost days or restricted
activity.
. Again, in another entry, column (6), Hem consis-
tently with the prior entries, but in a different manner,
confirmed this was an injury without lost workdays. In six
separate instances on this single document the true severity of
the injury was misreported. This document, as completed by .
Hern, would lead an inspector to believe that as of November
14, 1986, Hem had experienced only one injury which, though
reportable, was not of sufficient magnitude to trigger an OSHA
inspection. As Hem knew and as confirmed by the agency, the
reporting of one lost time injury in a business the size of
Hern*s would trigger an inspection (Hern, Tr. 419: Kuehmichel,
Tr 0 370). Since the injury to Graves was the only injury
reported in 1986 (See EL C-4), had it been properly reported
--
23
-‘-
on the OSHA 200 an inspection would have resulted. As reported
by Hem no inspection would have resulted.
Based on Hem's demeanor, the internal inconsistency of
his testimony, and contradictory extrinsic evidence, I reject
Hem's assertion that he had no reason to misreport Graves'
injury. I find Hem knew the injury was a reportable lost day
injury and failed to report it in an effort to avoid OSHA
inspections.
Item (j) of Willful citation 1 is affirmed as a willful
violation.
Other than serious citation
The requirement to record an injury on an OSHA Form 101 or
its equivalent is governed by the same criteria that requires
an injury to be recorded on the OSHA 200. Accordingly, the
above findings and conclusions with respect to each item of
the willful citation are equally applicable to each item of the
Other than serious citation, other than those relating to char-
acterization of the violations. I accept the OSHA Area Direc-
tor% testimony these were other than serious violations (Tr.
364)e Based on the above findings and conclusions:
Item (a) of Other citation 2 is affirmed as an other than
serious violation.
Item (b) of Other citation 2 is affirmed as an other than
serious violation.
Item (c) of Other citation 2 is vacated.
w Item (d) of Other citation 2 is vacated.
24
Item (e) of Other citation 2 is affirmed as an other than
serious violation.
Item (f) of Other Citation 2 is vacated.
Item (g) of Other citation 2 is affirmed as an other than
serious violation.
Item (h) of Other citation 2 is vacated.
Timeliness
Respondent raises the issue that the citations were not
issued within the six-month period required by section 9(c) of
the Act. Hem asserts the reciirdswhich revealed the viola-
tions were delivered to OSHA on July 22, 1988. Hem relied
solely on
. his memory to support this contention (Tr. 459).
Based on dates recorded in the case file OSHA asserts the date
Hem's records were provided was July 26, 1988. The amended
citation is dated January 24, 1989.
The Secretary argued the violations are continuing in
nature and the limitation period does not commence until the
violative acts cease, In the alternative the Secretary argues
that the citation was issued within six months of receipt of
the records.
Without ruling on the Secretary% more expansive view
of the limitation period, I find the records were delivered to
OSHA on July 26, 1988, as established by the testimony of the
Compliance Officer (Tr. 251-259). Having previously ruled on
Hern*s creditability, I specifically reject his assertion that
25
the doctm8ntS were delivered to OSHA on July 22, 198% Accord-
ingly, tlze citations were issued in a timely fashion.
Penalty
The determination of what constitutes an appropriate
penalty is within the discretion of the Review Commission.
Lana Manufacturina Co. v OSHRC, 554 F.2d 902 (8th Cir. 1977).
In determining the penalty the Commission is required to give
due consideration to the size of the employer, the employer's
good faith, history of previous violations and the gravity of
the violation.
The gravity of the offense is the principal factor to be
considered. Nacirema Operating Co., 1 BNA OSHC 1001, (No. 4,
1972); The Commission has stated that the elements to' be
considered in determining the gravity are: (1) the number of
employees exposed to the risk of injury: (2) the duration of
exposure: (3) the precautions taken against injury; if any,
and (4) the degree of probability of occurrence of injury.
Secretary v National Realty and Construction Co., 1 BNA OSHC
1049 (No. 85, 1971).
Hem employed 15 employees, has gross sales of approxi-
mately $500,000 per year (Tr. 451) and a net worth of approxi-
mately $50,000 (Tr. 451). Hern has a prior history of this
same violation (Ex. C-11).
I find Hern demonstrated less than good faith. The viola-
tions were not affirmed on the basis of constructive knowledge
but on HerrVs actual knowledge of each injury, its extent and
26
its reportability, I: again specifically reject Hern*s conten-
tion that he had a good faith belief that the injuries were not
reportable. I am convinced Hem refused to report -these in-
juries in an effort to reduce his workmen's compensation pre-
miums and avoid OSHA inspections. In considering Herns good
faith, or lack thereof, however, I reject the Secretary's
invitation to consider Herns demands for inspection warrants
and failure to comply with those warrants as reflecting on
Hem's good faith. Hern as a matter of right may require an
inspection warrant. Hem% refusal to comply with such war-
rants until a ruling on their validity was obtained from the
Ninth Circuit will not be considered as adversely affecting
Hem's good faith.
The gravity of the violations and particularly the viola-
tion alleged in item (j) is high. Recordkeeping is required
inter alia ta develop Y . . information regarding the causes
and prevention of occupational accidents and illnesses, and for
maintaining a program of collection, compilation and analysis
of occupational safety and health statistics/* 29 C.F.R.
1904.1. Deliberate refusal to report injuries undermines these
endeavors, Reports of injuries are used to select employers
for inspection whose employees are most likely to be injured
(Tr0 311). Based on its LWDI and employee testimony, Hem was
such a place (Tr. 146). By not reporting the extent of Graves' .
injury in 1986 (Ex. C-4) the effect would have been to avoid
OSHA inspections that would have been based on Hem's 1986
27
illness and injury records. Hem deliberately attempted to
avoid OSHA inspections and isolate his employees from the Act's
protection by not reporting the extent of Graves 8 injury. 1
find any attempt to isolate employees from the protections
afforded by the Act, particularly when those employees work in
an establishment where they are more likely to be injured, to
be especially grievous.
For the reasons set forth above and in weighing the statu-
tory penalty criteria, I find the penalties set .forth in the
order to be appropriate under- Section 17(j) of the Act (29
U.S.C. Section 666(j).
Findinas of Fact and Conclusions of Law
All findings of fact and conclusions of law relevant and
necessary to a determination of the contested issues have been
found specially and appear in the decision above.
ORDER
1 0 Willful Citation 1 item (a) is AFFIRMED as a willful viola-
tion a penalty of $2,000.00 is hereby ASSESSED.
2 l Willful Citation 2 item (b) is AFFIRMED as a willful viola-
tion a penalty of $2,000.00 is hereby ASSESSED.
3 0 Willful Citation 1 item (c) is hereby VACATED.
4 l Willful Citation 1 item (d) is hereby VACATED.
5 l Willful Citation 1 item (e) is AFFIRMED as a willful viola-
tion and a penalty of $2,000.00 is hereby ASSESSED.
6 0 Willful Citation 1 item (f) is hereby VACATED.
28
7 0 Willful Citation 1 item (g) is AFFIRMED as a willful viola-
tion and a penalty of $2,000.00 is hereby ASSESSED.
8 0 Willful Citation 1 item (h) is 'hereby VACATED.
9 l Willful Citation 1 item (j) is AFFIRMED as a willful viola-
tion and a penalty of $5,000.00 is hereby ASSESSED.
10 0 Other Citation 2 item (a) is AFFIRMED as an other violation
and a penalty of $200.00 is hereby ASSESSED.
11 l Other Citation 2 item (b) is AFFIRMED as a other violation
and a penalty of $200.00 is hereby ASSESSED.
12 l Other Citation 2 item (c) iS hereby VACATED.
13 0 Other Citation 2 item (d) is hereby VACATED.
14 a Other Citation 2 item (e) is AFFIRMED as a other violation
and a penalty of $200.00 is hereby ASSESSED.
15 0 Other Citation 2 item (f) is hereby VACATED.
16 0 Other Citation 2 item (g) is AFFIRMED as a other violation
and a penalty of $200.00 is hereby ASSESSED.
.
17 l Other Citation 2 item (h) is hereby VACATED. .
.
Dated: M;irch30, 1990
29
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