BEFORE THE

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD

DEPARTMENT OF INDUSTRIAL RELATIONS

STATE OF CALIFORNIA

In the Matter of the Appeal of:

STEVE P. RADOS, INC.
P.O. Box 15128
Santa Ana, CA 92735-0128

                                           Employer

 

Docket No. 97-R4D1-575

 

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 Steve P. Rados, Inc. (Employer), makes the following decision after reconsideration.

JURISDICTION

On December 17, 1996, the Division of Occupational Safety and Health (the Division) conducted an accident inspection at a place of employment maintained by Employer at Crescent Heights Boulevard, Los Angeles, California. On February 3, 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 $375.

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

After a hearing before an administrative law judge of the Board (ALJ), the ALJ issued a decision on May 6, 1998, finding that a violation of section 342(a) had been established.

On June 3, 1998, Employer filed a petition for reconsideration. The Division filed an answer on July 7, 1998. The Appeals Board granted Employer’s petition on July 23, 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 pages two and three of the decision of the ALJ.

An employee was injured at about 1 p.m. on a Friday afternoon. The employee was taken to a hospital by his foreman, who stayed with him until some time after the hospital admission procedure was completed. When the foreman left, it was known that the employee had a broken arm; it was later discovered that he also had a broken hip. No Employer representative called the Division until Employer’s safety director reported the injury to the Division on Monday morning after he became aware that the employee had been hospitalized over the weekend for more than observation. The paramedic service which had responded to the accident called to report the injury to the Division at about 4:55 p.m. on Friday.

ISSUE

Did Employer violate section 342(a) by not reporting the employee’s injury, which occurred on Friday, to the Division until Monday morning?

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.

(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 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’s foreman had failed to determine and report the extent of the employee’s injury by the time the foreman left the hospital and that no management representative made any effort to determine the extent of the injury or potential length of hospital stay until Monday morning. The ALJ found that the fact that Employer was not open for business on Saturday and Sunday did not constitute an exigent circumstance excusing the failure to report within 24 hours.

Employer’s petition contends that a management representative could not have determined the employee’s condition by telephone because hospitals will not divulge information about a patient’s condition to a third party over the telephone. Employer argues that for it to determine the employee’s condition on the weekend, a two-hour round trip by car would have been required to visit the hospital. Employer argues that the Board should not find that it violated the requirement for Employers to report within the time limits stated in section 342 because the accident and injury had been reported by the paramedics to the Division before the close of business on Friday. Employer further argues that requiring it to report within the section 342 time limits in these circumstances would require "a great deal more than is reasonable," one definition of the word exigent in a dictionary quoted by Employer. Employer also contends that because the Division did not have equipment needed to get access to the underground accident site and Employer would not or could not provide the equipment until its normal business hours on Monday, Employer should not be cited for failing to report the injury within eight hours.

The Board has consistently held that section 342(a) requires only the making of a telephone call, which is not a significant burden. If the employer is in doubt about whether the injury is serious, by making the telephone call within 8 hours of the time it has reason to know that the injury may be serious, it can avoid any citation.

Section 342 makes no allowance for either employers or local agencies to rely on the other to report. 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 separate reporting requirements for 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, who would then inform 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 paramedics’ report to satisfy its own section 342(a) reporting obligation.

Employer’s contention that making the report as required by section 342(a) would have forced its foreman to make a two-hour round trip to the hospital during the weekend was unreasonable and therefore would have created an "exigent circumstance" must be rejected. The second paragraph of section 342(a) provides that an "exigent circumstance" extends the reporting period to a maximum of 24 hours. Here, Employer did not report the injury for more than 48 hours. Employer’s contention that the inconvenience of making a two hour round trip should excuse compliance with section 342(a) is unpersuasive. The inconvenience could have been avoided by resolving doubts about the need to report in favor of reporting the injury, or by having its foreman or other representative conduct a "diligent inquiry" within the period allowed by the regulation to determine whether it was serious or not. Employer could have spoken to the employee directly, or determined from the hospital that the employee had been admitted for a period exceeding 24 hours.

Employer’s contention that no violation should be found because the Division did not investigate immediately after Employer did notify the Division is rejected. Employers who fail to report may not rely on the failure of the Division to investigate promptly. Finally, Employer’s argument that it should not be held to the requirements of section 342(a) because the Division did not have equipment necessary to inspect the accident location and Employer was unable or unwilling to make specialized equipment available until Monday is likewise rejected. Uncertainties about whether the Division had or could obtain specialized equipment or needed it, like uncertainties about whether the injury was serious, are best resolved after the Division has been promptly informed of the accident, and do not excuse a failure to make the report required by section 342(a).

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

DECISION AFTER RECONSIDERATION

The Decision of the ALJ dated May 6, 1998 is affirmed. Employer’s appeal is denied. A regulatory violation of section 342(a) is established and a civil penalty of $375 is assessed.

BILL DUPLISSEA, Member MARCY V. SAUNDERS, Member

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