BEFORE THE

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD

DEPARTMENT OF INDUSTRIAL RELATIONS

STATE OF CALIFORNIA

In the Matter of the Appeal of:

LAKESIDE VETERINARY HOSPITAL
9924 Maine Avenue
Lakeside, CA 92040

                                      Employer

 

Docket No. 97-R3D2-1410

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 granted the petition for reconsideration filed in the above entitled matter by Lakeside Veterinary Hospital (Employer), makes the following decision after reconsideration.

JURISDICTION

From February 20, 1997, through April 7, 1997, the Division of Occupational Safety and Health (the Division) conducted an accident inspection at a place of employment maintained by Employer at 9924 Maine Avenue, Lakeside, California. On April 9, 1997, the Division issued to Employer a citation alleging a regulatory violation of section 342(a) [failure to report serious injury to Division within 8 hours], with a proposed civil penalty of $175.

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

After a hearing before an administrative law judge of the Board (ALJ), the ALJ issued a decision on June 5, 1998, finding that a violation of section 342(a) had been established.

On June 24, 1998, Employer filed a petition for reconsideration. The Division filed an answer on July 27, 1998. The Appeals Board granted Employer’s petition on July 31, 1998.

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 page two of the decision of the ALJ.

Jackie Brick, an employee at Employer’s veterinary hospital, was bitten by a cat while she was bathing it at Employer’s facility on Friday, February 7, 1997. Brick saw a doctor on February 7, and later that same day returned to the emergency room. The following day, February 8, she was admitted to the hospital, and was not released from the hospital until February 14, after two surgical procedures.

The accident was not reported to the Division until February 14, when a friend of the injured employee called the Division. Employer did not report the injury to the Division.

Employer’s owner testified that Employer did not know of the extent of the injury, even as of the date of the hearing. Employer further testified that it did not know whether the bite occurred at its hospital, in part because Brick owned as many as 40 cats herself. Brick informed Employer on February 7 only that one of her hands was hurting. She finished her shift at the hospital then left to go to another job. Brick left a garbled message on Employer's answering machine, and then a call was received from the hospital on Saturday, February 8, that Brick was being admitted to the hospital, at which time Employer became aware that Brick had been bitten by a cat.

ISSUE

Did Employer violate section 342(a) by not reporting an employee’s injury to the Division?

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. . . . .

Labor Code section 6302(h) defines serious injury or illness 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 ALJ found that Employer had become aware that Brick had been hospitalized for a cat bite on February 8, 1997, but failed to report the injury as required by section 342(a).

In its petition, Employer contends that it was not advised by the emergency room physician or Brick that the cat bite occurred at work, although it diligently tried to get information about Brick’s injury from Brick and its other employees. Finally, Employer contends that the ALJ’s findings of fact should be rejected because Brick failed to attend the hearing and testify.

The Appeals Board finds that Employer’s contention that it was never able to confirm that the cat bite had occurred at its facility does not provide a defense to failing to report the bite to the Division. Employer had at least substantial reason to believe that the cat bite occurred at its facility, and that the injury had led to hospitalization after the hospital called concerning workers’ compensation information relating to Brick. Where an employer is uncertain about whether the injury warrants a call to the Division, the Board has long held the employer can resolve the uncertainty, and any risk of citation for failure to report, by calling the Division.

Employer’s contention that the ALJ’s findings of fact should be set aside because Brick did not testify at the hearing is rejected. A percipient witness testified that the cat Brick was bathing did bite her. The ALJ’s findings were supported by substantial evidence, and will not be set aside, absent contrary evidence of considerable substantiality. No contrary evidence has been presented in this case.

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

DECISION AFTER RECONSIDERATION

The Decision of the ALJ dated June 5, 1998 is affirmed. Employer’s appeal is denied. A regulatory violation of section 342(a) is established and a civil penalty of $175 is assessed.

BILL DUPLISSEA, Member MARCY V. SAUNDERS, Member

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