BEFORE THE

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD

DEPARTMENT OF INDUSTRIAL RELATIONS

STATE OF CALIFORNIA

 

In the Matter of the Appeal of:

JACO OIL COMPANY
3101 State Road
Bakersfield, CA 93308

Employer

 

Docket No. 97-R4D5-943

DECISION AFTER
RECONSIDERATION

The Occupational Safety and Health Appeals Board (Board), acting pursuant to authority vested in it by the California Labor Code and having ordered reconsideration on its own motion, makes the following decision after reconsideration.

JURISDICTION

From February 4, 1997 to March 4, 1997, the Division of Occupational Safety and Health (the Division) conducted an accident inspection at a place of employment maintained by Jaco Oil Company (Employer) at 100 West Perkins Avenue, McFarland, California. On March 13, 1997, the Division issued to Employer Citation No. 1, Item 1, alleging a regulatory violation of section 342(a) [failure to report serious injury to Division within 8 hours], with a proposed civil penalty of $450.

Employer filed a timely appeal contesting the existence of the violation and the reasonableness of the proposed civil penalty.

After a hearing before an administrative law judge of the Board (ALJ), a decision was issued on July 13, 1998, finding that a violation of section 342(a) had been established. Because the decision was inadvertently mailed to the wrong parties, it was reissued on August 6, 1998.

On September 3, 1998, the Board ordered reconsideration of the following issue:

If the Division is timely notified of a serious injury to an employee by a party or agency other than Employer, is Employer relieved of its statutory obligation under section 342(a) to report to the Division a serious injury occurring in a place of employment?

The Division filed an answer on October 7, 1998. Employer did not file an answer.

EVIDENCE

In making this decision, the Board relies upon its independent review of the entire evidentiary record in this case, including the tape recordings of the hearing. The Board has taken no new evidence. The Board adopts and incorporates by this reference the summary of evidence set forth on pages two and three of the decision of the ALJ.

On December 10, 1996, an employee was burned in a fire when a concrete saw he was operating cut a petroleum pipe. The employee was taken to a nearby hospital. Employer’s vice president of operations went to the hospital where the employee had been taken to be treated for severe burns. The employee was hospitalized for 6 days.

Employer did not make a report of the injury to the Division. Employer’s vice president became aware that the fire department, which had responded to the fire, had informed the Division of the accident and of the injury. He therefore believed that Employer did not have to make a separate report of the injury to the Division.

ISSUE

Did Employer violate section 342(a) by not reporting the employee’s injury to the Division, when it understood that the fire department had called the Division to report the injury?

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

Section 342 provides:

(a) Every employer shall report immediately by telephone or telegraph to the nearest District Office of the Division of Occupational Safety and Health any serious injury or illness or death, of an employee, occurring in a place of employment or in connection with any employment.

Immediately means as soon as practically possible but not longer than 8 hours after the employer knows or with diligent inquiry would have known of the death or serious injury or illness. If the employer can demonstrate that exigent circumstances exist, the time frame for the report may be made no longer than 24 hours after the incident.

Serious injury or illness is defined in section 330(h), Title 8, California Administrative Code.

(b) Whenever a state, county, or local fire or police agency is called to an accident involving an employee covered by this part in which a serious injury, or illness, or death occurs, the nearest office of the Division of Occupational Safety and Health shall be notified by telephone immediately by the responding agency.

 

(d) The reporting in (a) and (b) above, is in addition to any other reports required by law and may be made by any person authorized by the employers, state, county or local agencies to make such reports.

Labor Code section 6302(h) defines serious injury as follows:

"Serious injury or illness" means any injury or illness occurring in a place of employment or in connection with any employment which requires inpatient hospitalization for a period in excess of 24 hours for other than medical observation or in which an employee suffers a loss of any member of the body or suffers any serious degree of permanent disfigurement . . . .

The Division points out that section 342 does not excuse Employer from notifying the Division, even if Employer believes that a fire or police department or an insurer has notified the Division. The Division argues that subsection 342(d) reinforces the separateness of the section 342(a) and (b) reporting obligations.

Labor Code section 6409.1(b) provides:

In every case involving a serious injury or illness, or death, in addition to the report required by subdivision (a), a report shall be made immediately by the employer to the Division of Occupational Safety and Health by telephone or telegraph.

Section 342 was promulgated to implement Labor Code section 6409.1(b). Section 342 makes no allowance for either employers or local agencies to rely on the other to report a serious injury. Rather, section 342(d) implies that employers and state and local agencies will both make the reports required by section 342(a) and (b). The purpose of requiring separate reporting by both employers and state and local agencies is to promote the Division’s ability to investigate potentially dangerous conditions promptly. The Board has held that an employer could not satisfy its section 342(a) reporting requirements by informing its insurer of the injury, even though the insurer assured the employer that it would call the Division. The non-delegable character of the reporting requirement and the clearly stated obligations of employers and public safety agencies to report preclude Employer from relying on the fire department’s report to satisfy its own section 342(a) reporting requirement.

The Board therefore affirms the ALJ’s finding of a violation.

DECISION AFTER RECONSIDERATION

The Decision of the ALJ dated July 13, 1998 is affirmed. Employer’s appeal is denied. A regulatory violation of section 342(a) is established and a civil penalty of $450 is assessed.

BILL DUPLISSEA, Member MARCY V. SAUNDERS, Member

SIGNED AND DATED AT SACRAMENTO, CALIFORNIA - November 22, 2000