FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

July 11, 2013

BEFORE: Jordan, Chairman; Young and Nakamura, Commissioners

DECISION

BY THE COMMISSION: 

            In this proceeding arising under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2006) (“Mine Act”), S & S Dredging Company (“the Dredging Company”) contested a citation issued by the Department of Labor’s Mine Safety and Health Administration (“MSHA”) for an alleged failure to correct a defect in equipment. 33 FMSHRC 1324 (May 2011) (ALJ). Specifically, the Dredging Company contested the Secretary’s allegation that the violation was significant and substantial (“S&S”) and the result of its unwarrantable failure to comply with the mandatory safety standard. Id. at 1325-27. After a hearing, Administrative Law Judge Avram Weisberger vacated both the S&S and unwarrantable failure designations. Id. at 1327. He vacated the S&S designation because he reasoned that the injuries that were reasonably likely to occur due to the violation would not be of a reasonably serious nature. Id. at 1326.

            The Secretary filed a petition for review, which the Commission granted. He contends that the judge erred in overturning the S&S designation by failing to address material evidence in the record and misapplying the Commission’s test for determining whether a violation is S&S. We agree. For the reasons that follow, the judge’s decision is reversed in relevant part, the S&S designation is affirmed, and the citation is remanded for the assessment of an appropriate civil penalty.

I.

Factual and Procedural Background

            The Dredging Company is an independent contractor that dredges sand from a river at the Lithonia mine quarry in DeKalb County, Georgia. 33 FMSHRC at 1324; Tr. 54-55. On May 3, 2007, MSHA inspector Robert Knight visited the quarry and inspected the operator’s wheel loader. Joint Stips. at V.3-V.4; Gov’t Ex. A.

            Knight observed that the steps on the loader were in a defective condition. Gov’t Ex. A. Specifically, the bottom step hung loosely from chains and was unstable. Joint Stip. at V.5; Gov’t Ex. B; Tr. 24, 28-29. While the second step on the ladder was stable, it was three feet high, bent, and caved inward. Joint Stips. at V.6-V.7; Gov’t Ex. B. Patty Schildt, the company’s owner, admitted that the steps had been in this defective condition for approximately two years. Tr. 53, 56-57. The parties later stipulated that “due to the condition of the broken bottom step,” the second step “was the first usable step.” Joint Stip. at V.6.

            The mandatory standard set forth in 30 C.F.R. § 56.14100(b) requires that mine operators correct defects on equipment that affect safety. Inspector Knight determined that the Dredging Company had violated this standard, and accordingly he issued Order No. 7794620 to the operator pursuant to section 104(d)(1) of the Mine Act, 30 U.S.C. § 814(d)(1). Gov’t Ex. A. The Secretary subsequently modified Order No. 7794620 to a section 104(d)(1) citation.

33 FMSHRC at 1324 n.1.

            The Dredging Company contested the citation and the Secretary’s proposed civil penalty. The operator stipulated that it had violated the standard at issue, but contested the S&S designation as well as the allegation that the violation was the result of an unwarrantable failure to comply with the safety standard. Joint Stip. at IV.1.

            On May 23, 2011, the judge issued a decision in which he determined that the violation was not significant and substantial. 33 FMSHRC at 1326. Specifically, the judge concluded that the Secretary failed to establish the fourth element of the test set forth in Mathies Coal Co.,

6 FMSHRC 1, 4 (Jan. 1984), i.e., “a reasonable likelihood that the injuries in question will be of a reasonably serious nature.” The judge concluded that such injuries, which he identified as “sprains, possibly a broken ankle” were not of a reasonably serious nature because there was no evidence that either injury would require “hospitalization,” “surgery,” or “a long period of recuperation.” 33 FMSHRC at 1326. He also noted that “the height at which these steps are located does not appear to be very significant in terms of a contributing factor to a serious injury. The lower step was only one foot off the ground.” Id. The judge then vacated the S&S designation. Id.

II.

Disposition

            A violation is S&S if, based on the particular facts surrounding the violation, there exists a reasonable likelihood that the hazard contributed to by the violation will result in an injury or illness of a reasonably serious nature. See Cement Div., Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981). In Mathies Coal Co., the Commission further explained:

In order to establish that a violation of a mandatory safety standard is significant and substantial under National Gypsum, the Secretary of Labor must prove: (1) the underlying violation of a mandatory safety standard; (2) a discrete safety hazard — that is, a measure of danger to safety — contributed to by the violation; (3) a reasonable likelihood that the hazard contributed to will result in an injury; and (4) a reasonable likelihood that the injury in question will be of a reasonably serious nature.

6 FMSHRC at 3-4 (footnote omitted); accord Buck Creek Coal, Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir. 1995); Austin Power, Inc. v. Sec’y of Labor, 861 F.2d 99, 103 (5th Cir. 1988) (approving Mathies criteria).

            The judge erred in requiring the Secretary to demonstrate that an injury would result in hospitalization, surgery, or a long period of recuperation in order to satisfy the requirement in element four of the Mathies test that the potential injury be “of a reasonably serious nature.” The judge’s decision conflicts with the Commission’s established case law. We have consistently recognized that muscle strains, sprained ligaments, and fractured bones are injuries of a reasonably serious nature for the purposes of the fourth element of the Mathies test.

See, e.g., Maple Creek Mining, Inc., 27 FMSHRC 555, 562-63 (Aug. 2005) (affirming a judge’s conclusion that serious injuries such as a leg or back injury would arise from the failure to maintain an escapeway in a safe condition); Buffalo Crushed Stone Inc., 19 FMSHRC 231, 238 n.9 (Feb. 1997) (concluding that slipping on a walkway would result in reasonably serious injuries such as a finger or a wrist fracture); Southern Ohio Coal Co., 13 FMSHRC 912, 918 (June 1991) (affirming a judge’s conclusion that a trip and fall would result in reasonably serious injuries such as “sprains, strains, or fractures”). In sum, the judge applied an incorrect legal standard in analyzing whether the violation was S&S.

             Furthermore, the judge’s conclusion regarding the third Mathies element is also logically inconsistent with his analysis of the fourth element. When analyzing the third element, the judge found it reasonably likely that a slip and fall from the steps would result in a sprained or broken ankle. 33 FMSHRC at 1326. When analyzing the fourth element, however, the judge stated that because the injury in question was not likely to require a long period of recovery, it was not reasonably serious. Id. These two statements are not reconcilable: a broken ankle obviously would require an extended period of recovery.

            B.        The judge erred by assuming that the loader’s bottom step was in a usable condition. 

            In addition to applying an unduly stringent test when analyzing the fourth element of Mathies, the judge also made a significant factual error. The parties stipulated that “[t]he second step on the Loader . . . which was the first usable step due to the condition of the broken bottom step, was three feet from the ground.” Joint Stip. at V.6. Inspector Knight testified that as a result of being connected by chains, the lower step would flip around if a miner tried to use it. Tr. 28-29. Schildt admitted that the steps had been in this defective condition for about two years. Tr. 56-57. Despite this stipulation and testimony, the judge stated that “[t]he lower step was only one foot off the ground” and that the height of the step “does not appear to be very significant in terms of a contributing factor to a serious injury.” 33 FMSHRC at 1326.

            The judge erred in assuming that a miner could safely use the bottom step. The record evidence unequivocally establishes that the bottom step was not usable and that the first usable step was three feet above the ground. Thus, to the extent that the judge relied on the height of the bottom step as a factor in determining the likelihood of a serious injury, his reliance is not supported by the record.

III.

Conclusion

            We hold that the Secretary is not required to demonstrate that an injury would result in hospitalization, surgery, or a long recovery period in order to establish that a violation is significant and substantial. We further conclude that a sprained or broken ankle, a consequence the judge specifically identified as reasonably likely, is an injury of a reasonably serious nature. Accordingly, the decision of the judge is reversed with regard to whether Citation No. 7794620 should be designated as significant and substantial, and the citation is affirmed as a significant and substantial violation. This proceeding is remanded to an administrative law judge so that an appropriate penalty can be assessed.

/s/ Mary Lu Jordan

Mary Lu Jordan, Commissioner

/s/ Michael G. Young

Michael G. Young, Commissioner

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Commissioner

Distribution

Terry Schildt

S & S Dredging

405 Pope Trail

Covington, GA 30014

Robin Rosenbluth, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA

U.S. Dept. of Labor

1100 Wilson Blvd., 25^th Floor

Arlington, VA 22209-3939

Administrative Law Judge Avram Weisberger (retired)

Federal Mine Safety & Health Review Commission

1331 Pennsylvania Avenue, N. W., Suite 520N

Washington, D.C. 20004-1710

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

1331 Pennsylvania Avenue, N. W., Suite 520N

Washington, D.C. 20004-1710