Patterson Drilling Company, Inc.

Plain-English summary

Patterson Drilling Company ran a horizontal drilling rig at a site south of Gonzales, Texas. OSHA inspected after a February 1993 accident in which falling equipment caused a fatal crushing injury to a worker. The agency issued a serious citation with eight items and an "other" citation with two items. The company settled the "other" citation and all but two of the serious items, and that settlement was folded into the final order. The two items left for hearing (items 6 and 7) charged that Patterson had no written plan and did not train its first-aid providers under the bloodborne-pathogens standard, 29 C.F.R. § 1910.1030. Administrative Law Judge Stanley M. Schwartz held that oil-field workers who happen to have first-aid training are not automatically covered by that standard; helping an injured co-worker in an emergency is a "Good Samaritan" act, not "occupational exposure" to blood. He rejected the Secretary's broader reading, especially without proper notice to employers, and vacated items 6 and 7. The remaining items were resolved per the settlement, with modest penalties assessed on the affirmed items.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.1030 (the two litigated items), plus settled items under 29 C.F.R. § 1910.27, § 1910.1200(h), § 1904.5(b), § 1910.23(a)(10), and § 1910.141(b)(1)(vi)
• Outcome: Mixed order. The two contested bloodborne-pathogen items (6 and 7) were vacated; several settled items were affirmed with penalties of $500, $400, $400, and $400.
• Key point: Having first-aid-trained employees does not by itself trigger the bloodborne-pathogens standard; the exposure must be a reasonably anticipated part of the employee's duties, not a one-time Good Samaritan response.

Full text (OSHRC public release)

                                                                           UNITED STATES OF AMER1CA
                                                                       SAFETY    AND HEALTH          REVIEW COMMISSION
                                                                             One Lafayette Centre
                                                                       1120 20th Stf88t, N.W. - 9th Floor
                                                                          Washington, DC 200364419




        SECRETARY                                            OF LABOR
                                                               Complainant,
                                                 v.                                                                OSHRC DOCKET
                                                                                                                   NO. 93-1371
        PATTERSON                                           DRILLING CO., INC.
                                                               Respondent.                     .               i

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                                            3            NOTICE OF DOCKETING
               :
                            * .
                             ’
                                  _.
                                       ; ; ,’I.=.
                                            s;    OF ADMINISTRATIVE
                                                     _              LAW JUDGE’S DECISION
          %I
           ..’,.
              The Administrative Law Judge’s Report in the above referenced case was
        docketed with the Commission on June 9, 1994. The decision of the Judge
        will become a final order of the Commission on July 11, 1994 unless a
        Commission member directs review of the decision on or before that date. ANY
        PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY THE
        COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW.
        Any such petition should be received by the Executive Secretary on or before
        June 29, 1994 in order to ermit sufficient time for its review. See
        Commission Rule 91, 29 8 .F.R. 2200.91.

           AlLfurther pleadings or communications                                                  regarding this case shall be
        addresSed
              ‘I   to: :; \l’
                                                              -_
                                       l-
                                                 u
                                                                   .



                                                                       Executive Secretary
                                                                       Bccupational Safety and Health
                                                                        Revrew Commission
                                                                       1120 20th St. N.W., Suite 980
                                                                       Washington, D.C. 20036-3419
        Petitioning                                      parties shall also mail a copy to:

                                                                        Daniel J. Mick, Esq.
                                                                        Counsel for Regional Trial Liti ation
                                                                        Office of the. Solicitor, U.S. DOgL
                                                                        Room S4004
                                                                        200 Constitution Avenue, N.W.
                                                                        Washington, DC. 20210
        If a Direction for Review is issued by the Commission., then the Counsel for
        Regional Trial Litigation will represent the Department of Labor. Any party
        havmg questions about review nghts may contact the Commission’s Executive
        Secretary or call (202) 606-5400.

                                                                                       FOR THE COMMISSION                    A


        Date: June 9, 1994                                                             Ray I!f. Darling, Jr.
                                                                                       Executive Secretary

mxXET X0. 934371
NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mick, Esq.
Counsel for Re ‘onal Trial Liti ation
Office of the So%‘citor, U.S. DO5
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210

James E. White, Esq.
Re ‘onal Solicitor
O&e of the Solicitor U S DOL
525 Griffin Square Blhg.,‘&ite 501
Griffin & Youn Streets
Dallas, TX 752 %2

Mark CuIIifer Safe Director
Patterson Drib 2 ompany, Inc.
P.O. Drawer 141f
Snyder, TX 79549-

Stanley M. Schwartz
Administrative Law Jud e
Occupational Safety an f Health
Review Commission
Federal Building, Room 7Bll
1100 Commerce Street
Dallas, TX 75242 0791

00123431025:06
 UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
ROOM 7811, FEDERAL BUILDING
I 100 COMMERCE STREET
DALlAS, TEXAS 75242-0791

PHONE: FAX:
COM(214)767-5277 CoM(214)767~$)350
FTS(214)767-5271 FB(214)767-03!50

                                                      ..
                                                      ..

SECRETARY OF LABOR,
..
..
Complainant,
..
.. OSHRC DOCKET NO. 934371
v.
.
PATTERSON DRILLING COMPANY, 1
..
INC.,

                 Respondent.
                                                       ..

APPEARANCES:

       Ernest A Burford, Esquire              Lealand W. Greene
       Dallas, Texas                          Snyder, Texas
       For the Complainant.                   For the Respondent, pro se.

Before: Administrative Law Judge Stanley M. Schwartz

                                    DECISION AND ORDER

       This is a proceeding       brought before the Occupational         Safety and Health Review

Commission (“the Commission”) pursuant to section 10 of the Occupational Safety and
Health Act of 1970, 29 U.S.C. 8 651 et seq. (“the Act”).
The Occupational Safety and Health Administration (“OSHA”) inspected a drilling
site of Respondent, Patterson Drilling Company (“Patterson”), on February 9 and 10, 1993,
after an accident on February 7, 1993, which caused the death of an employee; the site,
called the “Texas Two Step,” was located approkirnately twenty miles south of Gonzales,
Texas. As a result of the inspection, Patterson was issued a serious citation with eight items
and an “other” citation with two items. The parties settled the “other” citation and all but
two items of the serious citation, and the executed settlement agreement is incorporated
 2

herein by reference.’ A hearing regarding the unresolved items, items 6 and 7 of citation
1, was held March 8, 1994; these items allege that Patterson did not have a written plan or
train employees designated as first aid providers, in violation of 29 C.F.R. 1910.1030, the
standard addressing occupational exposure to bloodborne pathogens.

                                            Background

    Patterson was involved in horizontal drilling at the site, and had a rig and about five

employees on the job at the time of the accident; the accident occurred when some
equipment fell on a worker, causing a fatal crushing injury. The employee performing driller
duties had had first aid training pursuant to Patterson’s practice of providing Red Cross
training to its drillers and having a driller with such training at remote worksites, as required
by 29 C.F.R. 1910.151(b); however, when the accident happened it was not the driller but
workers who had not had first aid training who went to the assistance of the injured
employee.2 A helicopter arrived about thirteen minutes after Patterson called for
emergency medical assistance, and employees helped to get the injured worker aboard; he
was taken to a hospital in San Antonio, where he arrived approximately forty minutes after
the accident. (Tr. 11-19; 24-31; 37; 41; 44-45; 58-61; 66-69).

                                  The Positions of the Parties

    Patterson contends that it was not required to comply with 1910.1030 because it was

not reasonably anticipated that its employees would come into contact with bloodborne
pathogens within the meaning of the standard. (Tr. 6-7). In this regard, Mark Cullifer,
Patterson’s safety director, testified he interpreted the standard to apply primarily to
emergency response and health care workers, and that oil field workers would not
reasonably anticipate responding to medical emergencies as that is not their normal work;
he further testified that OSHA Publication 3130, which addresses exposure precautions for

‘The settled items are reflected in my Conclusions of Law and Order, inpa.

%he record indicates there may actually have been two drillers with first aid training at the site at the time
of the accident. (Tr. 44-45; 5%5% 69).
 3

emergency responders, nowhere mentions oil field or similar workers among those required
to comply with the standard. (Tr. 10-11; E-19; 67-68).
The Secretary contends Patterson was required to comply with 1910.1030 because it
had employees trained in first aid. (Tr. 5-6; 21022).. James Butler, the OSHA compliance
officer (“CO”) who inspected the site, testified all employers having employees with a
potential for exposure to blood or body fluids must comply with 1910.1030. He said it was
reasonably probable Patterson’s first aid providers would come into contact with blood or
body fluids due to J-1, the company’s 1993 injury log, and the nature of oil field work; he
also said that only first aid providers would be required to use protective equipment such
as gloves, masks and aprons, and that other workers responding to medical emergencies
would not due to the “Good Samaritan” exception. Butler noted this was the first drilling
site he had inspected since the standard was issued, and he knew of no instructions on the
applicability of 1910.1030 to drilling sites; he was unfamiliar with R-l, an interpretation of
the applicability of 1910.1030 to first aid providers from OSEIA’s Kansas City regional office.
(Tr. 23-56).

                                          Discussion

   It is clear from the foregoing that the parties have differing interpretations             of the

standard, and that the issue in this case is whether 1910.1030 applies to the circumstances
at the subject site. Neither party submitted a post-hearing brief. The question, as noted
above, concerns the proper interpretation of the subject standard. The undersigned will
accordingly look to the language of the standard, and, if that is not dispositive, to the
legislative history; if the legislative history is likewise not dispositive, then deference will be
given to the Secretary’s interpretation of the standard, as long as it is reasonable. See Kiewit
Western Co., 16 BNA OSHC 1689, 1693, 1994 CCH OSHD li (No. 91-2578, 1994), and
cases cited therein.
1910.1030(a) provides that “[t]his section applies to all occupational exposure to
blood or other potentially infectious materials as defined by paragraph (b) of this section.”
“Occupational Exposure,” in turn, is defined at 1910.1030(b) as “reasonably anticipated skin,
eye, mucous membrane, or parenteral contact with blood or other potentially infectious
 4

materials that may result from the performance of an employee’s duties.” These provisions, *
standing alone, do not demonstrate the applicability of 1910.1030 to the subject site, and a
review of the rest of the standard indicates its primary coverage is directed towards health
care and other occupations where employees are exposed to blood and body fluids as a
regular part of their duties.
The preamble to the standard appears at 56 Fed. Reg. 64,004 et seq. (December 6,
1991). The industries identified as those in which employees contact or handle blood or
other body fluids are health care and related industries, funeral homes, law enforcement, fire
and rescue, correctional institutions, schools for the mentally retarded, lifesaving and
regulated waste handlers. Id. at 64,038.53. The preamble makes clear that these industries
are not exclusive, and that coverage extends to any employee with a reasonable likelihood
of exposure to bloodborne pathogens. Id. at 64,089. However, the only reference to first
aid providers is at 56 Fed. Reg. 64,lOL02, in the section of the preamble discussing the
“Good Samaritan” exception. That section states as follows:
In addition to being reasonably anticipated, the contact must result from the
performance of an employee’s duties. An example of a contact with blood
and other potentially infectious materials that would not be considered to be
an “occupational exposure” would be a “Good Samaritan” act. For example,
one employee may assist another employee who has a nosebleed or who is
bleeding as the result of a fall. This would not be considered an occupational
exposure unless the employee who provides assistance is a member of a first
aid team or is otherwise expected to render medical assistance as one of his
or her duties.
The preamble then goes on to note that the definition for “occupational exposure”
in the proposed standard included a second sentence which was omitted from the final
standard because commenters perceived it as confusing, contradictory or redundant; that
sentence reads as follows:
The definition excludes incidental exposures that may take place on the job
and that are neither reasonably nor routinely expected and that the worker is
not required to incur in the normal course of employment.
Id. at 64,102. R-l, noted above, was apparently derived from the foregoing; it states

as follows:
 Due to the number of informational calls and letters that have been received
by the Regional Office on the above subject, the following interpretation is
being provided.
It is not OSHA’s intent to in any way discourage employers from providing
their employees with first aid training paid for by the company. Employees
receiving this training, however, may not be covered by the standard. First,
the employee must reasonably be expected to come into occupational contact
with blood or other potentially infectious materials (OPIM), and secondly, the
employee must be a member of a first aid team or is otherwise expected
and/or is designated by his/her employer to render medical assistance as one
of his or her duties. Unless the employee providing this assistance meets both
of these conditions, the individual would not have “occupational exposure”
and thus would not be covered by the standard.
Any humanitarian gesture by this individual, such as assisting another
employee who has a nosebleed or who is bleeding as the result of a fall, would
be considered to be a “Good Samaritan” act and would not be considered to
be “occupational exposure” despite having had first aid training.
After considering the foregoing, I find the last paragraph of R-1 best serves the
purposes of the Act; accordingly, this is the interpretation I adopt. Stated another way,
circumstances such as those at the subject site do not constitute occupational exposure as
contemplated by the standard. Rather, the act of responding to an emergency, under the
facts of this case, is a “Good Samaritan” act, and the fact that the individual has had first
aid training does not require compliance with 1910.1030; in this regard, I note the workers
who responded to the accident had not had first aid training, and that the CO himself
acknowledged that such individuals are not required to comply with the standard. I also
note that while employee and equipment falls are among the types of accidents which can
occur on drilling sites, the Secretary’s interpretation of the standard, without proper notice
specifically including situations similar to the one in this case, does not require deference.
The Secretary’s interpretation is accordingly rejected, and items 6 and 7 of citation number
1 are vacated.

                                     Conclusions of Law

   1. Respondent,      Patterson Drilling Company, Inc., is engaged in a business affecting

commerce and has employees within the meaning of section 3(5) of the Act. The
Commission has jurisdiction of the parties and of the subject matter of the proceeding.
 6

   2. Respondent        was not in violation     of section 5(a)(l)     of the Act, and was not in

violation of 29 C.F.R. @ 1910.184(e)( 1), 1910.103O(c)( l)(i) and 1910.1030(g)(2)(i).
3. Respondent was in serious violation of 29 C.F.R. 86 1910.27(b)( l)(iv), 1910.27(f)
and 1910.1200(h).
4. Respondent was in nonserious violation of 29 C.F.R. $0 1904.5(b), 1910.23(a)(lO)
and 1910.14l(b)(( l)(vi).
Order
On the basis of the foregoing Findings of Fact and Conclusions of Law, it is
ORDERED that:
1. Items 1, 5, 6 and 7 of serious citation 1 are VACATED.
2. Items 3, 4 and 8 of serious citation 1 are AFFIRMED. A single penalty of
$500.00 is assessed for items 3 and 4, and a penalty of $400.00 is assessed for item 8.
3. Item 2 of serious citation 1 is AFFIRMED as a nonserious violation, and a penalty
of $400.00 is assessed. -
4. Items 1 and 2 of “other” citation 2 are AFFIRMED; a penalty of $400.00 is
assessed for item 1, and no penalty is assessed for item 2.

                                                       Administrative    Law Judge