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The First Responder’s Dilemma: Part I:

The Orange County Fire Authority has had a bad couple of years, OSHA-wise.  Since March 15, 2011, the agency has been cited for at least six alleged violations of the reporting rule found at Title 8 Code of California Regulations section 342(b).  This is the public agency counterpart to the employer’s duty found in section 342(a) to report serious injuries and illnesses to Cal/OSHA. It requires police and fire agencies to report any “accident” which results in a serious injury, illness or death to an employee.

The Cal/OSHA Appeals Board, in a January 3, 2013 decision, concluded that the Orange County Fire Authority is an “employer” subject to penalty for failure to comply with the reporting requirement.  The Board further held that a heart attack qualifies as an “accident” if it happens to an employee while at work. The Board reached this conclusion by referring to the definition of an “accident” as “an event or condition occurring by chance or arising from unknown or remote causes”.  They concluded that a myocardial infarction is a random event which cannot be predicted, and thus qualifies as an accident. Would my cardiologist agree? No more heart healthy diet required?!  Please pass the Fritos.

Since that decision, a Cal/OSHA judge has upheld the penalties (repeat penalties no less) against the agency in two other cases.  At least two additional appeals are still making their way through the system.

Yes, the Orange County Fire Authority is having a rough time.  The implications of these cases may mean a rough ride for other public agencies as well.  These cases, taken together, suggest that fire and police personnel must add these questions to their emergency response protocols and make each decision correctly or face citation by the Division.

Is this an “accident,” as the Board would define one?

Is this situation “occupational”?

Is the injury or illness “serious” as defined in Title 8, CCR section 330(h)?

One more thing: Do first responders have a duty to follow up with the hospital, as employers do, to determine if the “accident” has become “serious” even if it does not seem so at the scene?  Stay tuned for the First Responder’s Dilemma: Part II

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