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Reporting Serious Injuries to Cal/OSHA: An Update

Pursuant to Labor Code section 6409.1(b), Title 8 California Code of Regulations section 342(a) requires employers to “immediately” report the serious injury, illness or death of an employee occurring in a place of employment or in connection with any employment. Failure to do so leads to a $5,000.00 fine.

This mandate was enacted by the Legislature after being told that California employers were deliberately hiding deaths, etc. from Cal/OSHA’s attention. The law’s intent is to ensure that Cal/OSHA is made aware of serious incidents quickly enough to promptly investigate and, if necessary, order changes in the workplace.

“Immediately” means within eight (8) hours of when the employer knows or should know that the injury or illness is serious. “Serious injury or illness” for purposes of this reporting requirement is defined as one that requires inpatient hospitalization for more than 24 hours for other than observation, a loss of a member of the body (amputation) or a serious degree of permanent disfigurement.

But what about those cases when the injury does not become “serious” until much later? That question was addressed seven years ago by the Occupational Safety and Health Appeals Board (OSHAB) in DuBug #7 Cal/OSHA App. 92-1329 Decision After Reconsideration (June 29, 1995). The answer then was that the reporting requirement is triggered when the employer becomes aware of the seriousness of the injury – whenever the injury becomes “serious” and regardless that the employer was not intentionally hiding the fact of the injury. The Board, in other words, upheld the strict language of the law without reference to its purpose.

One of our clients learned their lesson the hard way: A new fire chief discovered an injury report which should have been reported to Cal/OSHA six months before he took over. So he did the right thing. Result? Cal/OSHA chose not to investigate the accident, but gave him a reporting citation and $5,000.00 fine to explain to his City Council.

An Update (of sorts): When the Appeals Board took this issue up again, on its own motion, four years ago we hoped for a change.

    What we expected

The case, Santa Rosa City Transit and Parking Department Cal/OSHA App. 05-1417 Decision After Reconsideration (Oct 6, 2011), involved injury to an employee that was not immediately “serious”. The facts, as stipulated by the parties to the appeal were as follows:

2/22/02: Employee sustains non-serious injury.
6/14/02: Employee has surgery and spends more than 24 hours in hospital
7/22/02: Employer’s workers’ comp unit is made aware of surgery.
10/1/04: Employee reports her own injury to Cal/OSHA.
3/4/05: Cal/OSHA cites the employer for failing to report the hospital stay within 8 hours.

Employer appealed the citation and the case was submitted to an Administrative Law Judge (ALJ) for decision on the agreed facts. On September 14, 2007 the ALJ upheld the citation, based upon the DuBug #7 precedent. The Appeals Board ordered reconsideration of the case on October 19, 2007. Since that time we have watched and waited, and waited some more. The Decision After Reconsideration was finally issued on October 6, 2011.

    What we got

After four years of contemplation, the Appeals Board, in a two page decision, stuck with the DuBug #7 rule and upheld the citation. No explanation provided. What we got, really, was a triumph of form over substance. And the perpetuation of a “gotcha!” for California employers.

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