October 17, 2007
Issue 24

Pop Quiz: Your employee sustained back injury last August. He has been treated with medication and various physical therapy modalities since that time. The employee has continued working, on modified duty, without further incident. Last week your worker's compensation claims summary indicated the employee is scheduled for surgery today. The employee has also notified you that he is set for surgery, will remain in the hospital for three days and will need the rest of the week off to recover.

Question: Must you now call your local Cal/OSHA office to report the employee's injury and surgery?

Answer: If you don't you will be in violation of Title 8 California Code of Regulations section 342(a) AND, if cited. will receive a $5,000 fine.

The Appeals Board has taken (in our opinion) a reasonable approach in allowing reduction of the $5,000 penalty attached to every citation for failure to report a serious occupational injury. Will the Board take a similarly reasonable approach when addressing employers's obligations to report injuries that only become "serious" well after the original injury? The issue is ripe for review and we are hoping for an answer very soon.

California Code of Regulations section 342(a) requires employers to immediately report the serious injuries and illnesses or death of an employee to the Division. "Immediately" means as soon as possible and not longer than 8 hours after the employer knows or should know of the serious nature of the injury. Section 342(a) also provides that if an employer can demonstrate that exigent circumstances exist, the time frame for the report may be made no longer than 24 hours after the incident (emphasis added).

A serious injury is defined in California Code of Regulations section 330(h) as that which (1) results in death; (2) requires hospitalization for more than 24 hours for other than observation; (3) involves the "loss of any member of the body"; or (4) results in permanent disfigurement.

The issue of whether report of a serious injury was required when the injury is not initially "serious" and does not become "serious" within the 24 hours following the injury has been addressed by the Occupational Safety and Health Appeals Board (OSHAB) in Debug # 7, Inc. dba Wood-Ply Forest Products OSHAB 92-1329 Decision After Reconsideration (June 26, 2005). The Appeals Board's response to that inquiry was a resounding YES.

Debug #7 involved an appeal of a citation for failure to report an employee's injury. The employee in that case sustained an injury on May 21, 1991. The injury did not become "serious" until the employee underwent a surgery on October 9, 1991. Employer was advised of the surgery, by its worker's compensation carrier in an insurance claims status report, on October 24, 1991.

Debug #7 argued that because the injury was not "serious" within the 24 hours following the incident, it had no duty to report the injury to the Division. The Appeals Board reject this argument, concluding that it is the date the employer becomes aware of the seriousness of the injury that triggers the reporting requirement and that the date of the incident is not relevant to the reporting time line. Interestingly, the Appeals Board supported this conclusion by explaining that the purpose of the regulation is to provide for timely inspection by the Division of potentially dangerous conditions or equipment that may pose a hazard to other employees. The Appeals Board reasoned that such a risk could be present even though a serious injury is not manifest within the first 24 hours following an incident or exposure.

How the purpose of the regulation was to be served by requiring reporting of a back injury that became surgical, and therefore "serious", five months post injury was not addressed by the Board. Further, the Board provided employer with no guidance as to when its duty to follow its employee's condition ends, if ever.

Fast forward to September, 2007. The Division issued a citation to the City of Santa Rosa for failing to report the serious injury of an employee. (Read our original article on this issue: "When in Doubt, Report: Not So Fast," reprinted on our website with the permission of the Cal/OSHA Reporter. The City's appeal of the citation was submitted to an OSHAB Administrative Law Judge (ALJ) by stipulation of facts and for a decision.

The facts of that case, as agreed upon by the parties, are as follows:

February 22, 2002:		City employee sustains an industrial injury. The injury was not "serious" as defined by Title 8 CCR section 330(h);
June 14, 2002:		Employee undergoes a surgery as a result of the 2/22/02 injury. The surgery required hospitalization for more than 24 hours;
July 22, 2002:		City is advised of Employee's surgery when it receives a copy of a physician's letter summarizing Employee's post-operative examination and referencing the June 14th surgery. City did not report Employee's surgery or hospitalization to the Division;
October 1, 2004:		Employee reported her injury and surgery to the Division.
March 4, 2005:		The Division issues a citation to City for failure to report Employee's injury.

The ALJ's decision, issued September 15, 2007, upholds the citation. Citing the reasoning of Debug #7, the ALJ rejects the City's argument that requiring employers to follow employee conditions indefinitely to ensure that they do not become "serious" in no way serves the purpose of the reporting regulation. The City's argument that the OSHAB should interpret the regulation pursuant to the federal model requiring reporting of injuries that become serious within the first 30 days of the incident was also rejected as being within the authority of the Standards Board, not the Appeals Board.

So, for now, the serious injury reporting requirement is alive and well. The parties, including the full Appeals Board, have 30 days from the date of this decision to file a Petition for Reconsideration. We believe this issue is in need of review. We will be watching to see if we are not the only ones.

Further to our last e-zine, the Occupational Safety and Health Appeals Board has decided, on its own motion, to reconsider the decision issued in Santa Rosa City Transit and Parking Department. That decision upheld the rule that employers are bound to report injuries when they become "serious", even if it is years after the event.