DECISION AND ORDER

Appearances:Yasmin K. Yanthis-Bailey, Esq., and Kristin Murphy, Esq., U.S.

                                    Department of Labor, Office of the Solicitor, Atlanta, Georgia for

                                    Petitioner 

                                    Laura E. Beverage, Esq., Jackson Kelly PLLC, Denver, Colorado, for

                                    Respondent  

Before:                        Judge McCarthy

I. Statement of the Case

            This case is before me upon a petition for assessment of a civil penalty under section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d).

            This case is before me upon a petition for civil penalty filed by the Secretary of Labor pursuant to section 105 of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §§ 815 (the “Mine Act”). The parties stipulated to the following facts: that Respondent Cemex is an operator, whose Inglis Quarry is subject to jurisdiction under the Act; that Gary Navarro was a miner employed by Respondent’s maintenance contractor, Tampa Armature Works (TAW), at the time that he suffered an injury on August 10, 2009, while performing maintenance on Respondent’s dragline; that no employee of Respondent was present to witness the incident; and that the proposed penalty of $5,000 does not affect Respondent’s ability to remain in business. At issue is Citation No. 8553410 issued by the Department of Labor’s Mine Safety and Health Administration (“MSHA”) under Section 104(a) of the Act alleging a violation of 30 C.F.R. § 50.10(b), which provides:

30 C.F.R. § 50.10: The operator shall immediately contact MSHA at once without delay and within 15 minutes at the toll free number, 1-800-746-1553, once the operator knows or should know that an accident has occurred involving:  (b) An injury of an individual at the mine which has a reasonable potential to cause death.

            Citation No. 8553410 was issued to Respondent Cemex on August 9, 2010, some thirteen months after the incident, during MSHA’s investigation of an anonymous Code-A-Phone complaint. That complaint alleged that an MSHA 7000-1 form completed on August 10, 2009 understated the seriousness of the injury that Navarro incurred. P. Ex. 1; R. Ex. 1, p. 3; Tr. 37-39. The MSHA 7000-1 report, which is referenced in the written summary of the anonymous Code-A-Phone complaint allegation and triggered MSHA’s September 2010 investigation, is not in evidence. See R. Ex. 15, p. 3.

            Citation No. 8553410 alleged the following condition or practice:

An accident occurred at this mine on August 10, 2009. A contractor employee received an electrical shock that could have resulted in a fatal injury. The employee was unconscious for approximately one minute and had a serious injury to his left shoulder. The mine operator was aware that the employee was shocked and injured but failed to immediately notify MSHA of the accident.

            Negligence was alleged to be high and gravity was alleged to be no likelihood of injury, no lost work days, and not significant and substantial (non-S&S).

            An evidentiary hearing was held in Tampa, Florida on January 12, 2012. The parties introduced testimony and documentary evidence. Witnesses were sequestered.

            For the reasons set forth below, I find that no immediately reportable accident occurred on August 10, 2009 because Navarro’s injuries from electric shock did not have a reasonable potential to cause death under the totality of facts and circumstances present in this case. Rather, I agree with the Respondent that the objective, contemporaneous and credible evidence surrounding the incident supports the conclusion that Navarro did not sustain an injury that was immediate reportable because it had a reasonable potential to cause death. Accordingly, I vacate Citation No. 8553410.

            On the entire record, including my observation of the demeanor of the witnesses, and after considering the post-hearing and reply briefs of the parties, I make the following: 

II. Summary of the Testimony

A.        The August 10, 2009 Injury and Subsequent Events

            1. Navarro’s testimony

            On August 10, 2009 at 8 a.m., TAW lead mechanic Michael Watson and mechanic Gary Navarro, signed into Respondent’s Inglis Quarry to perform preventative maintenance services on Respondent’s dragline. That work included inspection of heaters, which kept moisture out of the motors. R. Ex. 7; R. Ex. 14; Tr. 161-62, 241–42, 218-19, and 295. Respondent’s dragline operator, Michael Millen, discussed the scope of work with Watson and Navarro and followed them to the dragline, before embarking on his own work of moving dragline equipment. Tr. 241-42.  

            Watson and Navarro initially removed panels from the dragline motors to check the brushes and heaters. Tr. 162-63. Navarro was wearing regular, cotton work gloves issued by TAW. Tr. 192-93. Navarro testified that as he was lying on his stomach on the metal surface of the dragline platform, he reached under a motor and pushed some wires with his hand to determine if there were any heaters inside. Tr. 163-64. As he did so, Navarro testified that he received a “very painful” electric shock that caused his muscles to “tense up really hard to where [he] couldn’t move.” He remembers thinking, “I needed to get off of them . . . that’s all I remember.” Tr. 164. Navarro does not remember crying out, but Watson told Navarro that he did so. Tr. 165, 202.

            When asked what happened next, Navarro testified as follows:

            A         Well, I remember -- I would say waking up and seeing Michael Watson standing there laughing at me, which I was totally in shock. And I was telling him that I was having a heart attack because I felt like I was having a heart attack.

            Q         When you say you felt like you were having a heart attack, what did that feel like to you?

            A         My chest is pounding, and my -- just pounding really hard, like I couldn’t catch my breath, and my heart was just beating very hard. And I was just, you know, totally in shock of the whole experience.

And I kept yelling out to him that I was having a heart attack, and he just kept laughing at me until he figured out that I wasn’t joking because I was passing -- passing out. I kept passing in and out.

And so he had to grab ahold of me, and he hung on to me, and then he looked at me --

Am I going too far?

            Q         No.

            A         Okay. And he looked at me, and he said to me, “What’s wrong with your arm?” Which he was talking about my left shoulder was way out of socket. My arm was sticking up in the air.

And he -- and I looked at it, and I was like, “I don't know.”

And so he grabbed my arm, and he pulled up on it and it popped in joint, so it was obviously popped out of joint.

            Q         Do you remember if you hit that arm on anything?

            A         There was nothing there that I could see that I would have hit my arm on, but no, I don't remember anything like that. I do not remember hitting my arm.

            Q         Okay.

            THE COURT: Do you remember hitting your shoulder?

THE WITNESS: No. I -- I had no inclination about hitting my shoulder. There was nothing there that I probably would have been able to hit my shoulder on.

            BY MS. MURPHY:

            Q         Do you remember speaking with -- do you remember speaking with anybody at Cemex about hitting your shoulder when you were there?

            A         Not at all.

            Q         Was there anyone else around you?

            A         There was -- there was absolutely nobody else around me but Michael Watson the whole time that I was at Cemex.

Tr. 165-67.

            Navarro then testified that Watson used his cell phone to call someone and Navarro heard Watson tell this person that Navarro had been “electrocuted.” Navarro further testified, without additional explanation, that he could hear the person talking on the phone tell Watson, “Take him to the hospital.” Tr. 167. According to Navarro, as they were leaving the dragline, Navarro’s shoulder again popped out of joint and he began “screaming at [Watson] again” until Watson lifted Navarro’s arm up in the air and popped his shoulder back into joint. Tr. 167-68, 179. After that, Navarro did not recall “too much. . . I don’t even know how I got off the dragline, to be honest with you.” Tr. 168.

            Navarro recalls being at the hospital, but does not “particularly remember going to the hospital.” Tr. 168. At the hospital, Navarro recalls observing wires stuck to his chest and a discussion with the doctor. Navarro recalls the doctor stating that he had been “electrocuted” and that “. . . normally when somebody’s laying. . . flat on an iron plate that usually the electricity just runs straight through you without leaving any wounds.” Tr. 168-69. Navarro testified that after that, he did not remember much, and was “in and out.” Tr. 169.

            I generally discredit this testimony from Navarro. Navarro did not impress me as a very reliable witness while testifying on the stand, and I find his testimony to be rehearsed and exaggerated in an effort to establish a loss of consciousness and augment the intensity and severity of the injury that he actually sustained from a momentary, startling electric shock of moderate severity. In addition, Navarro’s testimony that he passed in and out and does not remember hitting his shoulder is undercut by his own testimony that Watson was laughing at him, and by contemporaneous medical records in which Navarro informed examining personnel that he did not sustain loss of consciousness and he jumped up and hit his left shoulder on a bar and dislocated it. See R. Ex. 1, pp. 1-2 discussed infra. I find the contemporaneous medical records about what happened to be the best and most reliable evidence. I further find, as explained herein, that the Secretary failed to establish that Navarro lost consciousness.

            Page one of the contemporaneous medical records indicates, inter alia, that Navarro presented at the hospital at 11:43 a.m., and was triaged at about 11:50 a.m., with “Chief Complaint - BURNS - ELECTRICAL.” Navarro was examined at 11:52 and a history was taken from the patient. The initial exam states, inter alia, “Current source was AC. Patient did not sustain loss of consciousness. Patient states symptoms are of moderate intensity. SHOCKED BY ELECTRICAL ENGINE -240-VOLTS-LOW AMPS-WHEN HIT, THROWN BACK AND HIT L SHOULDER AND FELT LIKE IT WAS DISLOCATED.”

            Page two of the contemporaneous medical records is an initial assessment form that was signed by a hospital nurse and contains, inter alia, the following: “Brief Assessment: per pt states electrical shock to left hand. States went up to shoulder, jumped up and hit left shoulder on bar and dislocated it. States was able to [replace] it by himself but keep coming dislocated. Pt noted to have no burn injuries at this time.” Pain intensity was assessed at seven on a scale of ten at the shoulder location.

            Page three of the contemporaneous medical records indicates that Navarro received a primary assessment about 12:05 p.m., after he was moved to a hospital room for several types of assessments. The psychosocial assessment states, inter alia, “Patient demonstrates normal behavior . . . . is able to ambulate independently, and can perform all activities of daily living without assistance.” The brief assessment states, “Patient is alert and oriented x 3. Respirations are unlabored. Skin is warm and dry, vascular status intact.” The pain assessment states “Patient rates pain as 7 on a one-to-ten scale with ten as the worst pain ever. Pain is located in the left shoulder. Onset of pain was sudden, within the past 3 hours, Patient describes the pain as constant, aching. Pain is exacerbated by movement activity.” The cardiovascular assessment states, that “EKG was performed at 08/10/2009 12:06 by tech.” The musculoskeletal assessment states, “Patient rates pain as 8 on a one-to-ten scale . . . . Reports a minor injury that is to the shoulder left, skin temperature at injury site is warm to touch, capillary refill is less than 2 second distal to the injury site, decreased range of motion above and below the injury site, swelling at the site is minimal.” The integumentary assessment states, “Skin temperature is warm and dry. The burn is caused by electricity. The burn appears to be red. Pain or injury is located in the left hand.”

            Thereafter, Navarro was treated with 5 mg of Percocet and a sling and swathe for left shoulder, which Navarro tolerated well upon final reassessment at 1:20 p.m. At that time, splint was intact with good vascular status, as evidenced by strong distal pulses and capillary refill in less than two seconds, with skin pink and warm. See R. Ex. 1, pp. 1-3.

            On questioning from the Court about statements made to hospital personnel as captured in contemporaneous medical records (R. Ex. 1, pp. 1-3), Navarro attempted to distance himself from those records, which undercut his previous testimony. He testified as follows:

            Q         Do you recall making that complaint to anyone at the medical center, “burns - electrical”?

            A         I'm sure I did.

            Q         What about the brief assessment below that? It says “Per patient, states electrical shock to left hand. States went up to shoulder. Jumped up and hit left shoulder on bar and dislocated it. States was able to” – is that retrace or – can anybody help me out? – “replace it by himself but keep coming dislocated. Patient noted to have no burn injuries at this time.”

            A         I don't recall, really, making any type of statement like that.

            Q         Let me direct your attention to page 1 of that document .

            A         Okay.

            Q         And under – do you see where it says “Chief Complaint” again?

            A         Uh-huh.

            Q         It says "Burns - electrical" there in the second paragraph or so. Do you see that?

            A         Can I look at it for a second? My eyes ain't all that great. Okay. Must be the top phrase, right? I'm not 100 percent sure what I'm looking at.

            Q         I'll direct your attention to this area here. It says “Chief Complaint: Burns - electrical,” and then the material underneath there, can you see that clearly?

            A         Yes, I can see it.

            Q         Okay. It indicates “Patient states symptoms are moderate intensity.” And above that, it says, “Patient did not sustain loss of consciousness.” Do you recall – do you recall telling anybody at the hospital that?

            A         Not at all, no.

            Q         Below that, it says “Shocked by electrical engine - 240 volts - low amps - when hit, thrown back and hit left shoulder and felt like it was dislocated.” Do you recall making any statements to that effect?

            A         I would never have made that kind of a statement, no, because there were – I couldn’t move anywhere. So being thrown back, you would have to be on your feet to be thrown back. I was not on my feet. I was laying on my stomach.

            Q         Was – where was Mr. Watson when you were being evaluated by personnel at the medical center?

            A         I think – I think he was out in the waiting room.

            Q         Do you know whether Mr. Watson spoke to medical personnel at the –

            A         I don’t. I don't know if he spoke to them or not.

            Q         Did he accompany you when you spoke to medical personnel? I mean, was he –

            A         He checked me in. He checked me in. He was the one that checked me into the hospital.

            Q         Describe the check-in process that you recall.

            A         Going up – walking up to the front desk and signing my name and them asking him what was wrong with me and what happened to me. And then them proceed to take me to the back. I mean –

            Q         Did you tell them what was wrong with you at that point in time?

            A         Honestly, sir, I cannot – I don’t recall me telling them what happened or anything like that.

            Q         Do you recall Mr. Watson telling them what happened?

            A         I recall him checking me in, but I don’t – when they took me back there, I didn't see him for a while. So whether they talked to him or not, I don’t know.

            Q         When they took you back there, where did they take you?

            A         Back to a room that just had a curtain that would wrap around it.

            Q         Was Mr. –

            A         Sitting on the table.

            Q         – Watson left in the waiting area at that time?

            A         Yes, I believe so.

            Q         Okay.

            A         But I do recall him coming out to the waiting – I mean to the back room after they were talking to me or after they had the things on my chest and everything. He came out there. I mean, that's – that's what I think happened.

Tr. 193-97.

            When asked on direct what happened after leaving the hospital, Navarro testified that Watson told me that he “needed to go pick up his tools off the dragline and take the locks off the dragline. . . . ” Navarro testified that he returned to Cemex’s Inglis Quarry with Watson because Watson was his “only ride home.” Navarro emphatically denied seeing or talking to anyone from Cemex when they returned because it was “after hours. . . so there was absolutely nobody there.” No one from Cemex ever called Navarro to ask how he was doing or request a copy of his medical records. Tr. 169.

            On cross-examination, Navarro did not recall where he was on the dragline when he was shocked, but denied that he was under a shaft or anything like that, as depicted in Respondent’s Exhibit 9. Navarro denied having to climb down into any confined area to access the site where the incident occurred. Rather, he testified that he ascended steps and stepped up on a platform, where two motors laid side-by-side, and then laid down beside the two motors and looked under one. Tr. 173. Once again, I note that this account is inconsistent with Watson’s report of the incident to TAW, as set forth in Respondent’s Exhibit 13, page 2, which indicates that while climbing out of the pit, Navarro’s right arm brushed against live heater lead wires, which caused him to sustain an electric shock, with no burns, but shoulder sublaxation.

            The record indicates that Navarro revisited the Cemex site in May 2010 (some nine months later) with an attorney to consider filing a lawsuit against Cemex. At that time, he could not recall where he was injured. Tr. 174, 177, 179. No law suit had been filed at the time of the hearing, although since the site visit Navarro had retained another law firm. Tr. 184, 186, 353. Navarro retained separate counsel to file a workers’ compensation claim against TAW, which paid for shoulder surgery at some unspecified date after the incident and prior to the hearing. Tr. 178. At the time of the hearing, Navarro was still receiving treatment for his shoulder injury and had been on workers’ compensation for about six months as a result of the incident. Tr. 178-79, 198. Navarro denied injuring his shoulder prior to the August 10, 2009 incident. Tr. 179.

            On re-cross, when asked why 911 was not called, Navarro testified, “I was in shock . . . I just did not think about something like that. Why anybody else didn’t do it, I have no idea . . . .” Tr. 190. On further re-cross, Respondent’s counsel established that an EKG was taken at the hospital. No abnormalities were noted. See R. Ex. 1, p. 3; Tr. 191.

            2. Watson’s testimony

            Watson testified that at the time of the incident, he was standing on the other side of the motor above the platform where Navarro was located and heard Navarro yell out. Watson then “jumped around” and saw Navarro “kind of dazed and kind of limp.” Tr. 202-03, 215. Watson does not remember whether Navarro was sitting down or standing up, but there was a shaft there and Navarro was located by that shaft. Tr. 203. On cross, Watson confirmed that he laughed at Navarro because he thought Navarro was joking around at first, and it was funny before Watson realized what happened. Tr. 208-09.

            On questioning from the Court during cross, Watson testified “. . . I don’t recall exactly if he was standing next to the shaft or if he was kind of leaning down here on the thing, but he was – just kind of limp, and, you know, his eyes were closed. I grabbed him up and drug him the best I could to a good spot, and he was still limp. And, you know, I – I got him to where I could get him on his feet completely, you know, then he started coming around. And I was asking him, ‘are you all right?’” Tr. 216-17. On further questioning from the Court, however, Watson could not recall whether Navarro’s eyes were open or closed when he was laughing at him. Tr. 217. Thereafter, Watson told the Court that Navarro was kind of crouched down leaning against the shaft and did not make eye contact with him, but once Watson got Navarro up and moving, they made conversation. Tr. 231-32.

            Watson identified the wires that shocked Navarro as a thermistor lead and a heater lead, which were untaped as depicted in the Secretary’s Ex. 3. Tr. 209-10. After identifying Respondent’s Exhibit 9 as an accurate photograph of the area where the leads were located, Watson testified that in order to touch the leads, one had to be underneath the shaft and either climb down into the area or lay on the platform. Tr. 211-12, 214. When Watson first observed Navarro after the incident, Navarro was below the shaft on the little platform marked with an X on Respondent’s Exhibit 9. Tr. 213-14.

            Watson testified that Navarro needed help to leave the shaft area and was not walking on his own. Rather, Watson carried his weight for a minute or so until Navarro started “coming to” and was able to function a little bit and help Watson out. Tr. 203-04. Watson further testified that he helped Navarro up by grabbing his arms and heaving him around his belly or chest area. Tr. 232. When asked whether Navarro lost consciousness at that time, Watson testified. “Yeah. He was out of it when I was holding him. He was unconscious when I . . . grabbed him . . . ” for “a minute or less.” Tr. 204. I discredit this testimony as an effort to embellish a friend’s case two years after the fact, given the equivocal recollection about loss of consciousness at the time of inspector Reed’s investigation a year later, and contemporaneous medical records at the time of the 2009 incident, which show no loss of consciousness.

             Watson testified that Navarro was responsive once they reached the walkway above the platform area where the incident occurred. When Watson asked if he was okay, Navarro said no, his shoulder was hurting. Tr. 205-06, 215. Watson noticed “bone sticking up,” but Navarro was able to hold a semi-comfortable position. Tr. 206. Watson helped Navarro relocate his shoulder. Tr. 222.

            Watson testified that he called TAW supervisor, Dennis Palowski, and told him that Navarro “got hurt. Just told him what happened and we were going to the hospital.” Tr. 206-07. Watson testified that he then called Millen and told him “[t]hat Gary got hurt and we were going to the hospital.” Tr. 207. Watson testified that he did not call 911 because Navarro “was conscious once we got settled.” Tr. 219. On cross, Watson had no recollection of talking to Millen at the shop area before leaving for the hospital. “No. I mean, I can’t remember. I don’t think we did, but I don’t know.” Tr. 226.

            On direct, Watson testified in cursory fashion that he took Navarro to the hospital and then came back to Inglis Quarry to get his tools. He testified that he did not see or speak with anyone from Cemex about the incident thereafter. Tr. 207-08.

            On cross, Watson testified that Navarro spoke with him on the way to the hospital and complained of pain in his shoulder. Tr. 221. Watson further testified that on the way to the hospital, Navarro “wasn’t regular Gary” and only made sense part of the time. Watson could not specify, however, how Navarro’s small talk (“jibber-jabber”) made no sense. Tr. 227-28. Watson did not recall whether he gave any information to hospital personnel, and then testified “I don’t think I said anything.” Tr. 221. On further questioning from the Court, Watson testified that he drove Navarro to the emergency room entrance, took him inside, but did not check in with him, and then parked his vehicle. Tr. 229-30. Thereafter, Watson sat with Navarro in the lobby until Navarro was called back for his examination. Contrary to Navarro, Watson testified that he never went back to the examination area. Tr. 231. Having observed Watson and Navarro testify, I credit Watson in this regard, particularly since on questioning from the bench, Navarro appeared to be searching for a way to justify his testimony with inconsistent medical records. See Tr. 193-97, quoted above.

            Watson testified that after returning from the hospital, he tested the leads with his Fluke meter by lying on the platform, while Navarro remained in the truck. Watson determined the voltage to be about 200. Tr. 210, 228.

            Watson further testified that TAW supervisory project manager, Jim Stoutamire, asked Watson to complete a report about the incident. Tr. 219-20. The only report in evidence is an OSHA 301 form, which indicates that it was completed by Stoutamire and Watson some time before review by a TAW plant manager on August 12, 2010. R. Ex. 13. That report indicates that the incident occurred at 10:45 a.m. on August 10, 2009. It further indicates that as Navarro was climbing out of the pit on the dragline next to hoist motor # 1, “[h]is right arm brushed against the live lead wires which caused him to get electrically shocked. He sustained no burns but did have shoulder sublaxation.” Id.

            3. Testimony from Respondent’s witnesses

                        a. Millen’s testimony

            Dragline operator, Michael Millen, testified that during the late morning right before lunch, he spoke with Watson and Navarro in front of the shop area before they left for the hospital. Tr. 243. Millen credibly testified that he was around the shop area with the loader, when he saw Watson’s truck parked in front of the shop, and stopped to see how Watson and Navarro were doing. Tr. 243. According to Millen, Watson was leaning against the truck, drinking a soda, when Millen asked, “What’s going on?” Tr. 244, 274. Watson told Millen that Navarro got shocked. Tr. 245.

            As Millen was speaking with Watson, Navarro came walking out of the bathroom, apparently after cleaning up a bit. According to Millen, Navarro told him that he got shocked, and when he jumped up, he dislocated his shoulder on a crossover shaft. Watson then helped Navarro get out of there and pop his shoulder back into joint. When Millen asked how they got Navarro’s shoulder back in place, Navarro told Millen that “it had happened to him before so it was easy to get back in.” Tr. 244-45, 251-52, 272. Millen further asked Navarro how he was feeling and whether he needed an ambulance or anything. Tr. 245, 273. Navarro said his shoulder was hurting. Tr. 246. Watson then told Millen that he was going to take Navarro to the hospital to get checked out. Tr. 245, 274. Millen told Navarro to give him a call to keep him posted. Tr. 246. The encounter lasted about ten or fifteen minutes. Tr. 258, 273.

            Millen found Navarro to be coherent and embarrassed by the incident. Millen did not consider Navarro’s injury to be life threatening, although he conceded on cross examination that he had no medical background. Tr. 246, 259. Millen testified that he did not believe that the injury was immediately reportable because Navarro was walking around and talking and his shoulder had been relocated. Tr. 250. Contrary to Watson’s testimony, Millen does not recall Watson calling him from the dragline on his cell phone. Tr. 247.

            On cross, Millen admitted that on or about September 27, 2010, he had written a short statement at the request of Todd Sumlin concerning MSHA’s investigation about what happened on August 10, 2009. Millen’s written statement did not mention Navarro coming out of the shop restroom, or stating that his shoulder had popped out before. Tr. 257-58, 270-71. That statement was used for impeachment purposes, but was not offered into evidence.  

            After speaking with Watson and Navarro, Millen testified that he called plant manager, Todd Sumlin, who was returning from an off-site lunch. Tr. 249. Millen told Sumlin that Navarro had been shocked, and when Navarro jumped up, he hit and dislocated his shoulder on a shaft, and Watson was taking him to the hospital. Tr. 250, 253, 262. According to Millen, Sumlin asked what kind of shape Navarro was in, whether he was conscious, and whether he was all right. Millen told Sumlin, “he seemed okay to me.” Tr. 253.

            Millen testified that he briefly spoke with Watson and Navarro again when they pulled up in their truck after returning from the hospital about 3 p.m. on August 10, 2009. Tr. 257-58. Millen asked what happened at the hospital and how Navarro was doing. Tr. 273. Navarro told Millen that he had been given some pain medication, and Millen noticed that Navarro’s shoulder was in a blue and white sling. Tr. 254, 273. Later that day, Millen informed Sumlin that he had seen Navarro, who appeared to be all right. Tr. 254. As noted in footnote 10 above, I credit this testimony from Millen based on his clear and accurate recollection of events that are consistent with Navarro’s contemporaneous medical records.

            Millen further testified that Respondent conducts annual training about immediately reportable accidents and injuries, that he had been trained on such policies, and that an MSHA flyer concerning the need to immediately report such injuries to the MSHA 1-800 hotline is posted at the time clock. Tr. 247-48, 261; see R. Ex. 2. On cross, however, Millen conceded that he had not been trained on identifying electrical injuries, although he had seen some electrical injuries in Cemex’s first responder class, which covered CPR. Tr. 262, 266. Millen testified that Cemex reports every accident, but it is not Millen’s job to report to MSHA. Rather, Millen reports to his immediate superior, Todd Sumlin, who determines whether to call MSHA. Tr. 260-261.

            On direct, when asked how Millen would determine whether an injury has a reasonable potential to cause death, Millen testified: “If they're unconscious, if they're bleeding, if they're not making sense. You know, they’re like delirious; they don’t know what they’re talking about. They’re bleeding, broken bones.” Tr. 248. When asked by the Court what the words “reasonable potential to cause death” meant to him, Millen responded, “If somebody’s unconscious or bleeding or something obviously is broken like an arm or a leg, swelling, if they’re talking unintelligibly where you can’t understand, like they’re talking about stuff that doesn't make any sense.” Tr. 272.

            On cross, when asked if loss of consciousness could potentially be a factor in making an incident immediately reportable, Millen testified that if somebody wasn’t talking to him or was unconscious or bleeding, he would have called the ambulance and then called his boss. Tr. 262-63. Millen further testified that even had he known that Navarro had lost consciousness, he would not likely have acted differently because Navarro was walking, talking and responsive. Millen further testified that he would have told Sumlin that Navarro had lost consciousness, and let Sumlin determine whether to immediately report to MSHA. Tr. 263-65. Eventually, on cross, Millen reluctantly acknowledged that Navarro’s loss of consciousness would have made his injury immediately reportable. See Tr. 264-65. Millen did not ask Watson or Navarro whether Navarro had lost consciousness. Nor did Watson or Navarro mention to Millen that Navarro had been unconscious. Tr. 263, 266, 271-72. In fact, “[n]obody said anything about [Navarro] being unconscious. It never came up.” Tr. 264-65.

            When asked on redirect whether loss of consciousness for a minute or less rendered an injury immediately reportable, Millen opined that it all depends on the circumstances. Tr. 267. Millen conceded that Navarro was working on powerful machines with voltages at 120, 240, 480 and 4160, and that Navarro was exposed to about 240 volts of electricity. Tr. 268-69. Millen testified that 110 volts “will grab you, and 220 will throw you away.” Tr. 268.

                        b. Sumlin’s testimony  

             Quarry manager, Todd Sumlin, testified that Millen called him as he was leaving a restaurant after an early lunch about 12:20-12:30 p.m. on August 10, 2009. Millen told Sumlin that Millen had spoken with Watson and Navarro around the shop area and that Navarro had been shocked and hurt his arm, and Watson was taking Navarro to the hospital to get him checked out. Tr. 281. Sumlin asked Millen if Navarro was okay. Millen said that Navarro was coherent, appeared to be in some pain, but had his faculties about him. Tr. 281.

            Sumlin testified that the information that he received from Millen – that Navarro had been shocked, hurt his shoulder, and was going to the hospital, but was walking, talking and had control of his faculties – was sufficient to make the determination that the incident did not involve an injury with a reasonable potential to cause death and was not immediately reportable to MSHA within fifteen minutes. Tr. 308-10, 321, 327. Sumlin confirmed that after Millen called, Sumlin made the judgment that the injury was not immediately reportable: “Not after he described the man standing there and in the shape he was – that he was standing, had his faculties about him, wasn’t cold and clammy, wasn’t hot and sweaty, didn’t seem to be bleeding profusely anywhere. He had a pain in his shoulder.” Tr. 327. When asked whether Sumlin felt like he had a duty to investigate what happened before making that determination, Sumlin testified, “The man was going to the hospital. That’s the best place he could have been, not coming to me. . . . I wouldn’t want him to stop on the side of the road and me chase him down to say, ‘Are you okay?’ He was going to the hospital, and it’s very close.” Tr. 309.

            On cross, Sumlin conceded that the highest voltage attributable to incoming power on the dragline was 4160 volts, that Cemex relied on TAW to check the voltage of the wires that shocked Navarro on Cemex’s dragline, and that Sumlin did not know the equipment or voltage that shocked Navarro, nor did he investigate beyond Millen’s phone call, prior to deciding that MSHA need not be called. Tr. 310-12, 321.

            Sumlin testified that after speaking with Millen, he immediately called Dave Thompson, regional safety manager, and relayed the information conveyed by Millen. Sumlin asked Thompson if Cemex needed to immediately call MSHA under the fifteen minute rule. Tr. 282, 320-21. Although Sumlin had determined that the incident was not immediately reportable, he sought out and obtained Thompson’s confirmation. Tr. 282.

            Sumlin then called TAW sales representative, Al Jackson, to ensure that Jackson was aware of the “accident” and to share with Jackson what Sumlin knew about it. Tr. 284. Jackson told Sumlin that he was aware of the accident. Sumlin asked Jackson to do an investigation of the accident and provide Sumlin with a copy, but there was no discussion about who was going to report the occupational injury to MSHA. Tr. 284, 297, 322. When asked by the Court whether Cemex reported to MSHA – as opposed to immediately reported to MSHA – the occupational injury that contractor Navarro suffered on Cemex’s mine site, Sumlin testified that he did not know. See Tr. 329-330. Sumlin acknowledged that he received a copy of Respondent’s Exhibit 13, namely, the OSHA 301 form, which was completed by Stoutamire and Watson at TAW. Tr. 284-85.

            Sumlin testified that he eventually returned to the mine after riding past the dragline. He performed some office duties while waiting for Watson and Navarro to return to the office and check out, but they never did. Tr. 283. Sumlin also testified that he called Jackson later that afternoon to inquire about the health of Navarro. Sumlin learned from Jackson that Navarro had been released from the hospital and was going to be okay. Tr. 285. After the date of the incident, Cemex did not follow up with Watson or Navarro. Tr. 320.

            At no point did Sumlin consider Navarro’s injury to have a reasonable potential to cause death because no CPR, emergency vehicle, or loss of consciousness was involved. Tr. 285. Sumlin opined that a dislocated shoulder is not an injury with a reasonable potential to cause death, and that all electrical shocks are not reportable immediately, nor do they all result in death or reasonable potential to cause death. Tr. 303, 305. Sumlin testified that the requisite determination of whether an injury has a reasonable potential to cause death must be made on a case-by-case basis, and Sumlin was responsible for making the contrary judgment in this case. Tr. 305-06.  

            Sumlin testified that he and Millen visited and inspected the “accident” site (see P. Ex. 3 and R. Exhs. 9 and 10) shortly after the August 10, 2009 injury occurred to make sure that the wires were no longer bare. They found that the wires had been taped up to eliminate the hazard. Tr. 286-87, 289. Sumlin postulated that Watson or Navarro taped up the wires when they returned to the quarry after the hospital run. Tr. 288, 317.

            Sumlin further testified that one would have to climb down into the area, but it would be a “pretty good reach,” about 30 inches, to lie on one’s belly from the platform and reach the wires. Tr. 289-90, 293. Sumlin testified that from everything he had read and from the telephone conversation with Watson, Navarro climbed down in the hole. Tr. 293; cf. R. Ex. 13, p. 2 (referring to Navarro “climbing out of the pit”).

             Sumlin also testified about MSHA inspector Reed’s investigation that occurred a year after the incident, which is further explained below when discussing Reed’s testimony. Sumlin and Thompson from Cemex and Don Chrosniak and Al Jackson from TAW were present when Reed conducted his investigation on September 9, 2010 at the Inglis Quarry. Tr. 300. Sumlin recalled that Reed called Watson twice (about an hour and 45 minutes apart) to ask him some questions on speaker phone. Tr. 297, 299, 301.

            Sumlin stated that during the first call, Reed asked Watson what work he had been tasked to perform on August 10, 2009. Tr. 301. Sumlin remembered inspector Reed asking Watson whether he was qualified to perform that type of work and Watson said that he was qualified. Tr. 302. Sumlin testified that during the second call, Reed asked Watson to describe what happened during that day. Tr. 302. According to Sumlin, Watson said that he had been down in the hole and saw two bare wires. He came back out of the hole and asked Navarro to go down there and Navarro must have contacted those wires. Watson “heard like a pop” and “Navarro went limp” and [Watson] thinks he lost consciousness for less than a minute. Watson then “helped him out of the pit, the hole.” Tr. 302, 324.

            According to Sumlin, TAW and Cemex representatives informed Reed that this was the first time that they had heard that Navarro had potentially lost consciousness back on August 10, 2009. Tr. 324-25. Sumlin confirmed that the first time that he found out that Navarro may have been unconscious for a minute or so was during Reed’s call to Watson on speaker phone in September 2010. Tr. 304, 318-19. September 10, 2010 was also the first time that Sumlin or Thompson had seen Navarro’s medical records from the date of the incident. TAW had supplied them to inspector Reed at that time, and Sumlin asked for a copy. Tr. 325-26, 365. Sumlin testified that those contemporaneous documents did not indicate that Navarro lost consciousness. Tr. 304. In fact, as noted above, they indicated the opposite. “Patient did not sustain loss of consciousness.” R. Ex. 1, p.1.

            Sumlin further testified that even as of September 2010, when inspector Reed conducted his investigation, Sumlin had no reason to believe that the incident, which had occurred over a year earlier, was immediately reportable. Tr. 303. Sumlin acknowledged that the citation indicated that Navarro was unconscious for approximately one minute, but opined that any such fact did not render the incident immediately reportable. Tr. 304, 305. Even assuming an electric shock, loss of consciousness for a minute or less, and a dislocated shoulder, Sumlin did not view such incident as immediately reportable. Tr. 305. Moreover, Sumlin was aware of no guidance from MSHA to the mining community as to whether an electrical shock injury has a reasonable potential to cause death. Tr. 306.

              Sumlin did not speak to Watson about the incident prior to Reed’s investigation, and Sumlin did not ask Navarro any questions about the incident when he escorted Navarro and his attorney around the incident site in May 2010. Tr. 319-20. According to Sumlin, Navarro could not recall where the incident occurred during the May 2010 site visit. Tr. 322.

                        c. Thompson’s testimony

            Regional safety manager, Dave Thompson, was Respondent’s observer-representative at the hearing. He is responsible for fourteen operations throughout the Southeast and acts as liaison between Cemex and MSHA concerning inspections.

            Before addressing the incident at issue, Thompson testified about the 10-day reporting responsibility for any occupational injury that requires medical treatment, and about immediate reporting requirements within the fifteen minute rule instituted under the Miner Act following the 2006 Sago mine disaster. Tr. 331-36. Thompson testified that MSHA’s flyer regarding immediately reportable accidents and injuries (Respondent’s Exhibit 2) was posted in conspicuous places throughout Respondent’s mines, and discussed during weekly safety meetings and annual refresher training, including training given at the Inglis Quarry prior to 2009. Tr. 337-38. Thompson testified that TAW, a Cemex contractor with an MSHA ID number, is responsible for reporting an occupational injury incurred by a TAW contractor employee at a Cemex mine site. Thompson was unaware of any requirement that Cemex report an injury to a contractor employee at its mine site. When led by counsel, Thompson testified that if there is one injury, there is one report. Tr. 339. Thompson further testified that he expected TAW to report Navarro’s occupational injury to MSHA. Tr. 346.

            On cross, Thompson was asked to read 30 C.F.R. § 50.11(b), which provides: “Each operator of a mine shall investigate each accident and each occupational injury at a mine. Each operator of a mine shall develop a report of each investigation.” Thompson maintained that Cemex investigated the accident by asking questions about the injury and going to the dragline a day or so after the incident to investigate the area where the injury occurred. (Tr. 361-62). He conceded, however, that Cemex never filed any report regarding the injury. Moreover, Thompson continued to maintain that Cemex had no obligation to report an occupational injury that was incurred by a contractor employee (Navarro) on Cemex’s mine site. Tr. 363. MSHA did not cite Cemex for a violation of 30 C.F.R. § 50.11(b) concerning an obligation to investigate and develop a report of such investigation.

            With respect to immediate reporting requirements, Thompson testified that Cemex personnel are instructed to determine whether an “incident has a reasonable potential to cause death” on a case-by-case basis, and once supervision is made aware of an injury, a judgment will be made as to whether Cemex supervision will call MSHA. Thompson opined that a shock, coupled with a dislocated shoulder and a loss of consciousness for a minute or less, was not an injury with a reasonable potential to cause death. Tr. 343. In fact, Thompson testified that nothing he has learned since the incident would lead him to change his opinion that the event was not immediately reportable. Tr. 370. Thompson emphasized that Respondent does not employ medical doctors to assist at the mine in making a fifteen minute judgment call about whether a particular injury has a reasonable potential to cause death. He opined that Millen acted as a reasonably prudent person when evaluating Navarro’s condition, and that the information available to Cemex was sufficient to determine whether the injury was immediately reportable. Tr. 371, 375.

            Thompson further testified that he had not read any documents [from MSHA] that gave notice that shocks with burns are immediately reportable, as inspector Reed suggested in his testimony. Tr. 339-40; cf. Tr. 133-35 (Reed testimony and professional opinion). Thompson further testified, contrary to inspector Reed, that a burn did not indicate that an injury had a reasonable potential to cause death. Tr. 375. Rather, Thompson opined that shocks with burns are not immediately reportable in all instances, that he is aware of shocks with burns where there was no immediate reporting, and that he is aware of shocks with burns where there was no reasonable potential to cause death. Tr. 340. Thompson also opined that not all shocks from 240 volts of electricity lead to a reasonable potential to cause death, although on cross, he conceded that he did not know the voltage that shocked Navarro when Cemex chose not to report. Tr. 342, 354.

            With regard to that incident, Thompson confirmed that Sumlin called him “directly after the accident,” around noon. Tr. 344. According to Thompson, Sumlin said that he had a couple of TAW people on site performing maintenance on the dragline, and one of them came in contact with some live wires and apparently jumped up or fell back and hurt his shoulder. Tr. 344-45. Thompson asked Sumlin, “Well, how is he doing? Is he okay?” Sumlin informed Thompson of Millen’s report that Navarro’s shoulder hurts him, but he seems like he is doing okay, and he is going to the emergency room to get checked out. Thompson asked Sumlin to let him know the outcome of the hospital visit and how the TAW employee was doing. Tr. 345, 356-57, 364-65.

            Sumlin also told Thompson that he had called sales representative, Al Jackson, at TAW. Tr. 345-46. Thompson testified that Sumlin followed up with TAW after the hospital visit and reported to Thompson what Sumlin had learned from Jackson, i.e., that Navarro’s shoulder was hurt, but everything else was okay. Tr. 348-49, 369.

            With regard to inspector Reed’s investigation, Thompson testified that on September 8, 2010, Reed called him to schedule an investigation at the Inglis Quarry the next day. Tr. 346-47. Thereafter, Thompson called Jackson and arranged for TAW representatives to be present. Tr. 347.

            On September 9, 2010, Reed met with Thompson and Sumlin from Cemex and Chrosniak and Jackson from TAW. Reed questioned them about the August 10, 2009 injury that he was investigating. Tr. 348, 351. Reed informed them that the investigation was prompted by an anonymous complaint that the accident was more serious than had been reported. Tr. 297. Reed presented Respondent with a copy of the September 7, 2010 complaint allegation (R. Ex. 15, p. 3). Tr. 298. As noted, the complaint allegation states that the MSHA 7000-1 form completed on August 10, 2009, understated the seriousness of the injury that Navarro incurred, but no MSHA form 7000-1 was offered into evidence by the Secretary. R. Ex. 15, p. 3; Tr. 121.

            Reed testified that Chrosniak from TAW had filed a 7000-1 report concerning an occupational shoulder injury, but that report had been filed late. Tr. 121-23, 125. Reed further testified that TAW supplied Reed with a copy of the report from its investigation. Then Reed called Watson on speaker phone. Tr. 299, 349.

            Unlike Sumlin, Thompson recalls only one conversation between Reed and Watson, not two, as Sumlin recalls. Tr. 351. According to Thompson, Reed asked Watson about site specific training for the TAW employees (Tr. 351), and about what happened at the dragline when Navarro was hurt. Tr. 349. Thompson heard Watson tell Reed the following: that Watson heard Navarro make a noise; that Watson went over to investigate and saw Navarro sort of squatting and stooped over; that Watson helped Navarro out and away from the shaft area; that Watson found out that Navarro had been shocked and hurt his shoulder; and that Watson and Navarro left the dragline, went to the shop where they had a conversation with Millen about the incident, and then went to the hospital to get Navarro checked out. Tr. 349.

            When asked by the Court whether Watson mentioned to Reed that Navarro had lost consciousness at that time, Thompson testified:

            A         I don't know what his exact words were, but he said it looked like he had passed out, is what I got. He was – he was – he wasn’t – he wasn’t 100 percent there during that – according to what Mr. Watson said. I believe Mr. Watson said it looked like he passed out a little bit where he was squatting. His eyes were closed, and he wasn’t right.

            BY MS. BEVERAGE:

            Q         Did Mr. Watson say for how long this lasted?

            A         I remember less than a minute.

            Q         Did Mr. Watson say how Mr. Navarro had hurt his shoulder?

            A         He bumped the shaft that was above him.

            THE COURT: Mr. Watson said that, told Mr. Reed that?

THE WITNESS: To the best of my recollection, yes; he had bumped the shoulder.

Tr. 350.

            Like Sumlin, Thompson testified that the first time that Thompson had ever heard that Navarro had passed out for less than a minute was during the conversation between Reed and Watson that the Cemex and TAW representatives overheard on the speaker phone. Tr. 351, 355. Thompson testified, however, that this information would not have affected his determination that the incident was not immediately reportable on August 10, 2009 because Millen had observed Navarro outside the shop, walking under his own power, and engaged him in lucid conversation. Thompson further speculated erroneously that Navarro “was able to climb out of the area where he was and make his way off of the dragline on his own power, get in the car and drive up to the shop and have a conversation.” Tr. 351-52. Rather, I credit Watson that Navarro needed assistance when leaving the dragline.

            On cross, Thompson confirmed that Millen had reported to Sumlin that Navarro was coherent, but Thompson conceded that he had no information about the duration of that coherency, what the voltage exposure had been, whether there were exit wounds, whether Navarro had chest pains or felt like he was having a heart attack during the incident, or whether Navarro felt like he may not leave the dragline alive. In fact, Thompson admitted that he considered such facts to be irrelevant to his determination of whether the injury was immediately reportable. Tr. 355, 357-58. On further re-cross, Thompson admitted that he was unaware that Navarro suffered a burn on his left hand, as set forth in Navarro’s medicals records at Respondent’s Exhibit 1, page 3, and that Thompson never requested to see the medical records. Tr. 374.

            4. Inspector Reed’s Testimony

            John Reed has been an MSHA inspector, specializing in electrical issues, since 1989. Tr. 32. Before that, Reed was employed with the West Virginia Department of Mines as an underground electrical inspector for about seven years. Tr. 37-38. Reed has two associate degrees from the West Virginia Institute of Technology; one in electrical engineering and technology and another in mechanical engineering technology. Moreover, Reed has taught courses in mine electricity for vocational, technical schools and for MSHA. Tr. 33-34. Reed testified he is considered a technical expert for electrical matters within MSHA’s southeast district, but Reed was not proffered, nor qualified, as an expert witness by the Secretary. Tr. 37.

            Reed testified that on or about September 7, 2010, MSHA’s national hotline received an anonymous Code-a-Phone complaint that eventually was referred to him for assignment. Tr. 37-38. Reed followed the verbal hazard complaint manual and reviewed the Cemex Inglis Quarry mine file, but saw no accident report or 7000-1 report filed by Cemex regarding this injury. Tr. 38-40, 42. Reed testified that MSHA does not keep files on subcontractors, but he did see an initial report that was brought to the mine by Don Chrosniak from TAW, and such report “didn’t indicate anything to the degree of what I found when I investigated the incident.” Tr. 40-42.

            Reed investigated the complaint at the Inglis Quarry on September 9, 2010. He met with Sumlin and Thompson from Cemex and Chrosniak and Jackson from TAW. He presented them with a copy of the redacted complaint. Tr. 42, 44-45, 49, 129. When all were assembled, Reed asked them what they recalled about the incident a year earlier when Navarro was injured. Then Reed called Watson on speaker phone and asked him to recount what had occurred. Tr. 46-49, see also Tr. 61. I note that Reed did not reference two phone calls.

            Sumlin told Reed that sometime before 11:30 a.m. on August 10, 2009, he received a call from dragline operator Millen informing Sumlin that Watson had phoned Millen to report that Navarro received an electrical shock while working on the dragline, “smashed” his shoulder, and was leaving the site. Tr. 50, 148-49. Sumlin also told Reed that Sumlin immediately called Thompson and Jackson to inform them about the incident and then Sumlin returned to the job site about 11:30 a.m. Tr. 50, 53. Reed testified that he asked Sumlin or Thompson whether they had verified whether there had been any logout/tagout and was told that nobody had done so. Tr. 146.

            Jackson told Reed that Sumlin had called him about the incident and that Jackson had called Watson after he left for the hospital. Tr. 55. Reed testified that he was particularly interested in written documentation, i.e., hospital records and an internal accident report that he had asked TAW to provide concerning the incident. Tr. 55-57.

            Reed then called Watson and spoke to him on speaker phone. Tr. 46, 57. Reed confirmed that Watson and Navarro had signed in and received site-specific training and then asked Watson to describe the nature of their work and what happened when Navarro was injured during such work. Tr. 57-58, 64. Watson told Reed that they were working on a 240-volt circuit that was fed from a 480-volt transformer and that Watson entered some confined space, saw bare wires, and asked Navarro to verify what Watson had seen. Then, Navarro “got down in there and started to so something, and then he received an electrical shock.” Tr. 58-59. Watson further told Reed, and those listening on speaker phone, that Watson thought Navarro lost consciousness for about a minute, but then Watson told Reed that he was not sure that Navarro had lost consciousness. Tr. 59. On cross examination, Reed reiterated that Watson told him that Navarro may or may not have lost consciousness. Tr. 132. As noted, Reed never asked Watson whether Watson and Navarro had spoken with Millen on site before leaving for the hospital. Tr. 150.

            After listening to Watson’s account over the speaker phone, Cemex and TAW representatives told Reed that this was the first time they had heard that Navarro may have lost consciousness after the electrical shock. See Tr. 61-63. On cross, Reed could not recall whether Watson told him how Navarro hurt his shoulder, and then testified that Watson stated that he did not see Navarro hit his shoulder on anything. Tr. 132, 136.

            Reed opined that Navarro’s exposure to 240 volts of electricity when shocked could cause death. Tr. 64. Reed testified that he has presented fatality reports involving individuals exposed to less than 240 volts, who have died, and he was aware of four electrocutions since 2000 that involved less than 120 volts, including a welder, who died after exposure to 90 volts of electricity. Tr. 65, 66-67. Reed testified that fatal electrocutions typically occur because of a confluence of factors, including confined space and incidental contact with electric current in a wet, metal environment. Tr. 66, 92. Reed expressed his belief that such factors were present in this case because the dragline was a metal structure and Navarro had climbed down into a confined space with low lighting, i.e., a pit to access heater wiring in a cable tray about four or five feet below floor level. Tr. 67-68, 91-92, 105-06 ; see also R. Ex. 13, p. 2 (TAW’s report noting that Navarro was climbing out of pit when shocked).

            During his investigation, Reed was presented with photographs of the bare wires or electrical leads to which Navarro was exposed, and Reed took photographs of the photographs and identified the former during his direct testimony. Tr. 69-70, 100-108; P. Ex. 2-4. Reed also testified about P. Ex. 5, which was a fatalgram concerning the twelve metal/nonmetal fatalities in 2008. In that fatalgram accident, the victim was electrocuted while contacting an energized steel water line, where one conductor in a 480-volt electrical circuit passed through a common condulet box, and the heater tape, which was attached to the water line, overheated and energized the water line to 277 volts of electricity. Tr. 108-09; P. Ex. 5. In an effort to highlight any similarities between the fatalgram and the Navarro incident, Reed noted that the voltage was about the same, there was accidental contact with an energized wire or water pipe, and both scenarios involved metal grounded structures. Tr. 110-12. On cross, however, Reed acknowledged that the fatalgram victim was found electrocuted, without a pulse. Tr. 114-15.

            When asked why he wrote the instant citation for Cemex’s failure to immediately call MSHA to report an injury that had the reasonable potential to cause death, Reed testified that the facts were all there. Specifically, Watson told Reed that Navarro hurt his shoulder; Watson told Reed that Navarro did not hit his shoulder on any structure; Reed could never establish any reason other than violent muscle contractions for the dislocated shoulder; and page three of Navarro’s medical records indicated a burn on left hand, which in Reed’s opinion meant that Navarro had received a shock above the magnitude of current that could cause death. See Tr. 72-79. In Reed’s view, “there was no question this should have been called in.” Tr. 80. “. . . .You know, I mean the facts from the hospital said the man got burned, and he had a bad shoulder injury. That is an electrical injury that does that and has the reasonable potential to cause death.” Tr. 152. Reed further testified that the issue of consciousness or unconsciousness made no difference to him, despite language about loss of consciousness that he had written in the citation, and that the shock appeared severe, given the burn and dislocated shoulder. Tr. 80-81.

            On cross, Reed testified that in his professional opinion, if an individual sustains an electrical burn from an electric shock, then it is an immediately reportable accident with a reasonable potential to cause death, even if the individual was lucid, coherent and had no loss of consciousness. Tr. 133-35, 151. Reed, however, was aware of no notice from MSHA to this effect. Tr. 133-134. On re-cross, Reed conceded that not all shocks that cause a burn result in a fatal accident. Tr. 153. Reed noted, however, that Navarro sustained multiple injuries [burn and shoulder]. Tr. 133. Reed further opined that whether a dislocated shoulder alone was immediately reportable should be determined on a case-by-case basis. Tr. 134-35.

            Reed testified that he asked a Cemex representative (either Thompson or Sumlin) why Cemex did not report the incident on form 7000-1. Reed was informed that it was the contractor’s responsibility and that the Cemex representative thought the contractor had reported it. Tr. 81-82. Reed further testified that Chrosniak (TAW) told him that Cemex had the reporting obligation. Tr. 82. Reed opined that both Cemex and TAW had a reporting obligation and he gave them both citations, although Cemex was never cited for failure to report the contractor injury at its mine site, just the failure to immediately report the alleged accident. Tr. 82; see also n. 2, above.

            Reed designated Cemex’s negligence as high for the following reasons: MSHA had listed and emphasized immediately reportable accidents and injuries in its “One Call Does it All” outreach and enforcement campaign targeting the industry (see R. Ex. 2; Tr. 85-86, 140-41); Cemex was aware of the campaign and had posted MSHA’s flyers at its mine sites and thus knew that it had to report an injury to an individual at its mine, which had a reasonable potential to cause death; Cemex knew that Navarro had been shocked and had a severe shoulder injury; and Cemex offered no mitigating circumstances for failure to report, other than ascribing reporting responsibility to TAW. Tr. 85-86.

            Reed testified that the purpose of the immediate notification requirements set forth in 30 C.F.R. § 50.10, including § 50.10(b), is to protect the health and safety of miners and to enable MSHA to assist in a thorough and objective investigation of all facts surrounding an accident, and in any rescue or recovery effort that is required. Tr. 88-89.

            Reed did not visit the dragline during his investigation. Tr. 130, 153. Nor did he speak to Millen, Navarro or anyone from the hospital or medical group, who treated Navarro. Tr. 53, 63, 131, 137-38, 140. Like Cemex’s investigation, I find that Reed’s investigation was not very thorough.

III. Discussion and Analysis with Further Findings

of Fact and Conclusions of Law

            At the outset, I find that Cemex had no intention of immediately reporting this incident. This is because Thompson testified that Cemex had no reporting obligation at all, only TAW had such. Contrary to Thompson’s testimony, the plain meaning of 30 C.F.R. § 50.10 expressly places the responsibility to immediately report on the shoulders of the operator. Furthermore, the Commission and ALJs have consistently affirmed the plain meaning of section 50.10 in finding that when an reportable accident occurs involving contractor employees at a site owned and supervised by the operator, the operator is responsible for immediately reporting the accident to MSHA. See Phelps Dodge Tyrone, Inc., 30 FMSHRC 646 (2008); Extra Energy, Inc., 20 FMSHRC 1 (1998); Nichols Construction, Inc., 31 FMSHRC 1172 (2009) (ALJ); Prairie State Generating Co., 33 FMSHRC 2549 (2011) (ALJ).

            Nevertheless, Thompson’s erroneous understanding of the law is not dispositive here. Reed did not cite Cemex for failure to investigate or for an inadequate investigation or for failure to report an occupational injury. And even though Cemex had no intention of immediately reporting Navarro’s injury, I find that no immediate reporting obligation of an accident ever attached to Cemex under the surrounding facts and circumstances at issue here. Rather, for the reasons set forth below, I find that the Secretary failed to establish that Cemex violated 30 C.F.R. § 50.10(b) by a preponderance of the credible evidence.

            As noted, 30 C.F.R. § 50.10(b) provides that an operator shall immediately contact MSHA at once without delay and within 15 minutes at the toll free number, 1-800-746-1553, once the operator knows or should know that an accident has occurred involving: (b) an injury of an individual at the mine which has a reasonable potential to cause death. As MSHA noted in the preamble to the final rule:

In using the “reasonable potential to cause death” basis for injuries and entrapments, the MINER Act and the final rule retain an element of judgment. This “reasonable potential” language also appeared under the ETS and the prior standard in relation to injuries. According to the Federal Mine Safety and Health Review Commission (Commission), the operator’s decision as to what constitutes a “reasonable potential to cause death” “cannot be made upon the basis of clinical or hypertechnical opinions as to a miner’s chance of survival.” The judgment is based on what a reasonable person would discern under the circumstances, particularly when “[t]he decision to call MSHA must be made in a matter of minutes after a serious accident.” [See Cougar Coal, 25 FMSHRC 513 at 521 (September 5, 2003)]. Based on MSHA experience and common medical knowledge, some types of “injuries which have a reasonable potential to cause death” include concussions, cases requiring cardio-pulmonary resuscitation (CPR), limb amputations, major upper body blunt force trauma, and cases of intermittent or extended unconsciousness. These injuries can result from various indicative events, including an irrespirable atmosphere or ignitable gas, compromised ventilation controls, and roof instability.

71 Fed. Reg. 71433-71434 (emphasis added).

            In assessing this standard, I have declined to credit the testimony from the Secretary’s witnesses that Navarro lost consciousness when suffering the electric shock. I have specifically discredited Navarro’s testimony in this regard at section II, A, 1, above. Reed’s reliance on Watson’s testimony to this effect is based on Watson’s equivocal recollection more than a year after the event. Watson’s testimony at the time of the hearing, which is even further removed from the date of the event, is undercut by the equivocal nature of the statement given to Reed a year earlier. More importantly, Watson’s testimony concerning Navarro’s loss of consciousness and Navarro’s testimony that he passed in and out is undercut by Navarro and Watson’s mutually corroborative testimony that Watson was laughing at Navarro initially, and by contemporaneous hospital records in which Navarro informed examining personnel that he did not sustain loss of consciousness. I find the contemporaneous medical records to be the most reliable evidence in this case. Accordingly, I find that the Secretary failed to establish that Navarro lost consciousness.

            Furthermore, I credit dragline operator Millen that he observed and spoke with Navarro at the shop area before Watson drove him to the hospital. Millen testified about this encounter with specific detail. Sumlin and Thompson essentially corroborated Millen. Although the Secretary attempted to impeach Millen based on a prior inconsistent statement, the Secretary failed to establish the circumstances surrounding the rendition of that statement, including whether it was intended to be cryptic or comprehensive. Nor did she offer it into evidence. Although Respondent did not attempt to rehabilitate Millen on this effort at impeachment, I find Millen’s testimony about his in-person encounter with Watson and Navarro to be sufficiently detailed and corroborated as to warrant credence.

            Based on Millen’s credited testimony, Navarro told Millen during a face-to-face encounter shortly after the incident that he got shocked, jumped up, and dislocated his shoulder on a crossover shaft, and that Watson helped him pop it back into joint. Such testimony establishes that Navarro was lucid, coherent, and ambulatory, and did not require CPR or emergency transport to the hospital for treatment of his shoulder injury or burn. Moreover, Millen did not consider Navarro’s injuries to be life threatening. Millen then called plant manager Sumlin and told Sumlin that Navarro had suffered an electrical shock and jumped up and dislocated his shoulder on a shaft, and that Watson was taking him to the hospital. Sumlin asked what kind of shape Navarro was in, whether he was conscious, and whether he was all right. Millen told Sumlin, “he seemed okay to me.” Tr. 253. Sumlin immediately informed Thompson of these facts.

            It was at this point that any immediate reporting obligation was triggered. As Judge Manning noted in Newmont USA Limited, 32 FMSHRC 391 (April 14, 2010):

The language of the Secretary’s regulation is clear. An operator is required to notify MSHA within 15 minutes “once the operator knows or should know that an accident has occurred.” 30 C.F.R. § 50.10. The regulation does not require reporting within 15 minutes after a miner sustains an injury. The operator must know that an accident occurred before the obligation to immediately report arises or the operator must have been in a position such that it should have known that an accident occurred.

            In this case, as in Newmont USA Limited, supra, it became clear to Sumlin and Thompson, at or about the time of Millen’s report shortly after Navarro was injured, that an immediately reportable accident, as defined by the Secretary, had not occurred. Because there was not an immediately reportable accident that Cemex knew about or should have known about, no obligation to immediately report Navarro’s injury arose. Rather, based on the totality of facts and circumstances presented in this record, I find that a reasonable person would discern, as Millen, Sumlin and Thompson did at the time, that Navarro’s injuries from electric shock did not have a reasonable potential to cause death. I note that an electric shock is not one of the events listed in the preamble or in any other MSHA document designed to provide guidance on immediate reporting obligations. Moreover, the regulation does not require mine operators to immediately report every injury that requires off-site emergency care at a hospital or clinic. Here, it was clear within a few minutes after the incident that Navarro had been shocked and suffered a dislocated shoulder and a burn to his left hand. As noted above, I find that these injuries would not cause a reasonable person to believe that there was a reasonable potential that Navarro was going to die. I further note that Navarro did not express such concerns to Millen shortly after the incident, despite his subsequent discredited testimony at trial.

            In Cougar Coal, the Commission held that the “decision to call MSHA cannot be made on clinical or hyper-technical opinions as to a miner’s chance of survival.” 25 FMSHRC at 521. The facts in Cougar Coal are readily distinguishable. There, a miner received a shock of 7,200 volts of electricity, hit his head on the edge of the power center, and fell 18 feet to the ground, where he was found unconscious and without any pulse. 25 FMSHRC at 515. The miner suffered head lacerations, serious burns, and a fractured neck vertebra. A foreman administered CPR and the miner was revived before transport to the hospital by ambulance, and subsequent helicopter transport to another hospital burn unit. 25 FMSHRC at 515-516, 520. The Commission held that the near electrocution, combined with the 18-foot fall and head collision with the power center, had a reasonable potential to cause death per se. 25 FMSHRC at 520.

            More recently, in Mainline Rock and Ballast, Inc. v. Secretary of Labor, slip op. 2012 WL 1111258 (10th Cir. 2012), the Tenth Circuit quoted Commission precedent explaining the degree of latitude afforded by § 50.10, balanced against its directive that mine operators quickly act to assess the severity of an accident that may require reporting.

Section 50.10. . . necessarily accords operators a reasonable opportunity for investigation into an event prior to reporting to MSHA. Such internal investigation, however, must be carried out by operators in good faith without delay and in light of the regulation's command of prompt, vigorous action. The immediateness of an operator's notification under section 50.10 must be evaluated on a case-by-case basis, taking into account the nature of the accident and all relevant variables affecting reaction and reporting.

Id. at 6, citing Sec'y of Labor v. Consol. Coal Co., 11 FMSHRC 1935, 1938 (1989).

            In Mainline Rock, the Tenth Circuit affirmed the ALJ’s unreviewed final administrative order, which found, inter alia, that Mainline Rock failed to report an accident to MSHA within fifteen minutes, as required by 30 C.F.R. § 50.10, and exhibited high negligence because a reasonable person would have called MSHA upon seeing the injured miner (Avitia) at the scene, but Mainline’s mine load-out superintendent Olsen remained “remarkably non-inquisitive about Avitia’s condition and injuries.” Id. at 6, 15.

            In that case, Avitia was pulled into the Grizzly Conveyor by one of the return rollers. Id. at 2. He was instantly caught between the belt and roller and when contact was made he blacked out. When he regained consciousness, he found himself pinned in the air between the return roller and the belt, with the roller below his stomach and the belt still running along his back. His head and torso had passed through a seven-inch space, but after twenty minutes of attempting to signal for help, he miraculously was able to retrieve his radio and tell fellow miners to stop the conveyor, yelling out, “Stop everything. . . . I’m dying. I’m stuck in the belt. Id. at 3. The conveyor was stopped, 911 was called, and Avitia was eventually freed after a torch was used to cut the roller from the conveyor. When mine superintendent Harris arrived on the scene he began administering oxygen, and when Harris told Avitia he would be all right, Avitia replied, “No, I’m in very bad shape.” Id. at 4. Indeed, Avitia spent two-and-a-half months recovering in the hospital. He sustained severe internal injuries requiring a tracheotomy and surgery to his pelvis, pancreas, hip, and spleen. He also suffered permanent damage to his kidneys and also broke his arm, his collarbone, and all of his ribs. Id. at 4-5.

            During the ordeal, mine load-out superintendent Olsen, who had been working some 1500 feet away, arrived on the scene and found Avitia was laying on the ground with his head in another miner's lap. Olsen took a ‘quick glance’ at Avitia and noticed that he looked pale. Olsen described Avitia's face as “kind of swollen” and his head as “misshaped.” Olsen spoke to no one and asked no questions. After staying at the scene for “[s]econds,” Olsen went to his office to call corporate counsel, the company's compliance officer, and 911. At no point did Olsen make any inquiries of Avitia's condition. Nor did he report the accident to MSHA until after Avitia was airlifted to a hospital. The total time from when Olsen first learned of the accident until he reported it to MSHA was approximately one hour and thirty-eight minutes. Id. at 4.

            The Tenth Circuit concluded that substantial evidence supported the ALJ’s decision that § 50.10 affords an operator a degree of discretion, but Olsen did not “have the discretion to remain uninformed about the circumstances of the accident and then assert that the reasonable potential for the accident to cause death was unknown.” Id. at 15. The court emphasized that after arriving on scene, Olsen merely glanced at Avitia and left seconds later without asking a single question. Moreover, despite calling 911 and noting that Avitia's head was misshaped, Olsen never sought an update on Avitia's condition from Harris or anyone else. Id. at 15. The court further emphasized that Olsen had a reasonable opportunity for investigation but failed to seize it. He easily could have asked what happened and immediately learned that Avitia had been pulled through the roller. That knowledge alone would have alerted him to the severity of the accident and the potential for death. In fact, another miner at the scene actually thought Olsen left to get more help while he continued “working on trying to save [Avitia's] life.” Id. at 16. The court concluded, as the ALJ recognized, that the obvious circumstances of the accident would have triggered some minimal degree of inquiry in a reasonable person, thus prompting a call to MSHA. But the court found that Olsen chose to remain blind to the circumstances. The court concluded that Olsen's ignorance of the severity of Avitia's condition did not excuse Mainline Rock's failure to timely report the accident. Id.

            Here, by contrast, it became clear at the time of Millen’s initial face-to-face encounter with Navarro and well-nigh immediate notification to Sumlin that the most serious injury sustained by Navarro as a result of the electric shock was a dislocated shoulder that had been popped back into place. No CPR or oxygen was administered. No pulse was lost. No EMT or ambulance was called to the scene. Navarro did not receive treatment for a burn. No credible evidence was presented that Navarro lost consciousness.

            In these circumstances, the record establishes that Sumlin’s decision that the electric shock injury was not immediately reportable was made after some minimal degree of inquiry and was not based on clinical or hyper-technical opinions as to a miner’s chance of survival. Rather, it was based on Millen’s ten-minute face-to-face assessment of Navarro’s condition, a few minutes after he was injured, and Sumlin’s at least marginal inquiries after being informed of that assessment, about what happened and whether Navarro was going to be all right. There is no evidence that Navarro’s condition worsened at any time after that. In fact, Millen credibly testified that he spoke to Navarro again upon his return to the job site and Jackson kept Millen apprised of Navarro’s status upon release from the hospital less than three hours after the incident. Furthermore, Sumlin credibly testified that he called Jackson later that afternoon to inquire about the health of Navarro. Sumlin learned from Jackson that Navarro had been released from the hospital and was going to be okay. Tr. 285. Moreover, the medicals records uncovered during Reed’s September 2010 investigation confirmed what Sumlin had relayed to Thompson from Jackson after Navarro’s hospital visit on August 10, 2009. Tr. 370, 372. Thompson testified that he also learned that Millen had a brief conversation with Watson and Navarro about 3 p.m. when they returned to the site from the hospital, and that Navarro was okay, but his arm was in a sling. Tr. 352.

            By contrast, I find that inspector Reed’s testimony is based on a hyper-technical opinion years after the fact that any electric shock which causes a burn is per se an immediately reportable injury. Although the testimony of an experienced MSHA inspector is ordinarily entitled to considerable weight, no persuasive authority was proffered to support this opinion. There is no MSHA regulation or other guidance to support this view. The facts in Cougar Coal differ starkly. I reject such a per se assessment in the circumstances of this case. Nor has Cemex been given notice of this enforcement position. If the Secretary would like all electric shock injuries to be immediately reported, she should consider modifying her regulations to say so. As Judge Manning noted in Newmont USA Limited:

It appears that the Secretary believes that a mine operator should immediately report any serious injury, at least if off-site medical care or hospitalization is required. As stated by the Commission in Cougar Coal, “it would benefit the mining community if the Secretary would clarify when it is urgent to notify MSHA, when it is not, and what reports are required.”

25 FMSHRC at 52.

            As the record in this case makes clear, until the Secretary does so, cases like this one will continue to be litigated before the Commission. Tr. 370.

            In sum, I find that the Secretary failed to establish by a preponderance of the credible evidence that Cemex violated 30 C.F.R. § 50.10(b) by failing to immediately report an injury of an individual at its mine which has a reasonable potential to cause death.

IV. ORDER

            For the reasons set forth above, Citation No. 8553410 is VACATED, and this proceeding is DISMISSED.  

                                                                                    /s/ Thomas P. McCarthy

                                                                                    Thomas P. McCarthy                                                                                                             Administrative Law Judge

Distribution:

Yasmin K. Yanthis-Bailey, Esq. and Kristin Murphy, Esq., U.S. Department of Labor, Office of the Solicitor, 61 Forsyth Street SW, Suite 7T10, Atlanta, GA 30303

Laura E. Beverage, Esq., Jackson Kelly, PLLC, 1099 18th St., Suite 2150, Denver, CO 80202