When a reportable injury occurs at a mine to an employee of an independent contractor which has no supervisory duty there , the mine operator, not the contractor, must report the injury to MSHA, a federal appeals court in Richmond has made clear.
That decision of the U.S. Court of Appeals for the Fourth Circuit, however, also raises two other issues. First, if the independent contractor does have supervisory responsibility, is it also required to report? The decision is silent on this question. Second, if two or more “operators” meeting the regulatory definition are at a mine, does each have to report the injury even though the employees of neither operator incurred the injury? Here, the answer appears to be “yes.”
The incident triggering the litigation occurred after an employee of Bates Contracting & Construction was injured at Dickenson-Russell Coal (DRC) Co.’s Roaring Fork No. 4 Mine in Virginia. Bates reported the accident on MSHA’s 7000-1 form, but the operator did not because it had a policy at the time of not reporting contract workers’ injuries.
MSHA cited the operator, DRC, for failing to timely report, an alleged violation of its Part 50.20(a) regulation, and assessed a $127 fine. The company appealed, but an administrative law judge ruled the definition of “operator” in the Part 50 regulation was controlling and thus DRC had to report. As for the contractor’s filing, the judge described it as “gratuitous.” After the Federal Mine Safety and Health Review Commission declined to review the decision, DRC appealed to the Fourth Circuit.
The appeals panel noted the judge’s decision was narrow in that he did not consider what Bates’s reporting role would have been had it possessed supervisory responsibility at the mine, which it did not. The panel added that it had no reason to disturb the ALJ’s decision, thus leaving that question unresolved.
But the Court went on to hold that where two or more operators are subject individually to the Part 50 reporting requirement, each one of them must report every qualifying accident or injury. This appears to mean all mine operators on a job site must report an accident even if none of their employees was injured.
The judges were unfazed about the duplicative reporting this interpretation would create. “Coordination between operators is therefore necessary if each operator is to accurately report the injury to MSHA while minimizing the already slight duplication of effort caused when multiple operators gather the same information about a reportable injury before filing separate reports,” they wrote.