The Injury: An employee is injured on the job. All of the appropriate worker's compensation forms are completed and calls made. But, does the injury require a call to Cal/OSHA (also called the Division or DOSH)? The definite answer is: Possibly. At the least, every occupational injury should trigger an investigation to determine if the injury is reportable to Cal/OSHA.

Employers are only required to report employee fatalities and "serious" occupational injuries and illnesses. A serious injury or illness is defined as that which (1) results in death, (2) requires hospitalization for more than 24 hours for other than medical observation, (3) involves the "loss of any member of the body", or (4) results in permanent disfigurement. (Title 8, Calif. Code of Regulations, sec. 342a.)

The Division's internal guidelines define "loss of a member of the body" as occurring when there is a loss of bone. The Appeals Board has yet to give us a definitive answer. Watch closely for injuries in which the bone occurs after the accident. For example, the very tip of a finger is cut off, resulting in outpatient surgery during which a portion of the fingertip's bone is removed. Also, tissue damage, without loss of bone, may result in permanent scarring or "disfigurement". Both of these results are considered "serious" and are reportable.

The Trigger: Technically, it is not the injury itself that triggers your obligation to report to Cal/OSHA. The reporting requirement is "triggered" when any supervising employee of the company becomes aware, or would have become aware after a reasonable investigation, of facts making the injury or illness "serious".

The death of an employee on the job should be reported immediately. Likewise, the obvious seriousness of some injuries will make the reporting decision easy. But many times the circumstances are more complicated.

The Investigation: In practical terms, the fact that you had no actual knowledge regarding the extent of your employee's injury is no defense to a citation for not reporting an injury. The employer is responsible to make a reasonable, diligent inquiry of the employee's condition and facts which might make the injury or illness reportable.

Frequently an employee suffers a workplace injury that is not immediately recognized as serious. The employee is transported to the hospital as a precaution or for observation. It is not known if an employee will spend more than 24 hours in the hospital, if the stay will be for treatment or merely observation or if the injury, seemingly minor to a lay person, will eventually result in permanent disfigurement or amputation. You must make a reasonable inquiry regarding the employee's condition, and continue to monitor the employee's condition until it is clear that the serious injury "trigger" will or will not occur.

Medical privacy laws make directly communication with hospitals and other health care providers difficult. However, the calls should be made and documented. It may also be wise to keep a record of all employees=s emergency contacts. The designated contact can then be used to obtain information regarding the medical condition of your employee. These calls, even if unsuccessful, should be documented.

The Decision: Under legislation passed in 2002, the penalty for failing to report a death or "serious injury" is now $5,000.00. The penalty will be multiplied by 2, 4 and 10 for first, second and third repeat violations respectively. Neither the Division nor the Appeals Board has any discretion to reduce this penalty. Multiple violations may also support a decision to issue a willful citation.

In deciding whether to report, bear in mind that employee injuries will be reported to the Division by paramedics, hospital staff, fire and police, and any number of other sources. But even in light of the increased penalties, a blanket policy of reporting all employee injuries if there is any indication that the injury is reportable is not the best practice. Remember, when you report an injury the Division becomes obligated to investigate, opening up the possibility that other, even unrelated, violations will be discovered and cited.

The Call: Once the reporting obligation is "triggered", the call must be made to the nearest district office of the Division "immediately." That means within eight hours, even on weekends and state holidays. DOSH is equipped to receive reports 24/7. Do not assume that you can wait to the following business day to report!

A Final Note: DOSH's folks will swear to you that employers must report deaths and injuries resulting from motor vehicle accidents, even though they admit they have no jurisdiction over those accidents. That sounds right when you consider only the language of section 342a. But when you look at the definition of "serious injury or illness" in section 330(h), you find this language: [Serious injury or illness] "...does not include injury or illness or death caused by ... an accident on a public street or highway." We are fighting this issue right now. The Board's decision will pe reported here when it is received.

Please call or e-mail us if you have any questions on this topic.