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The First Responder’s Dilemma Part II

In the last episode of the First Responder’s Dilemma we learned that Cal/OSHA is now penalizing first responders as “employers” for failure to report serious injures encountered during accident response calls as required by Title 8 CCR section 342(b). We left you wondering if first responders have a duty to follow an injury to determine its “serious” nature. (see Title 8 CCR section 330(h))

A case, specifically on that issue, has had us pretty worried.  It involves the Orange County Fire Authority (yes, again) and an injured teacher.  In this case, the OCFA responded to a call involving a teacher who had fallen down while redirecting a student.  There was some swelling of the ankle and the first responder opined that the teacher had sustained either a sprain or fracture.  The teacher refused intravenous pain medication. The OCFA provided ice, immobilization and then transferred care to a private ambulance service for transportation to the hospital.

End of story?  No.  The teacher did sustain an ankle fracture, opted for surgery instead of long term immobilization and was hospitalized for more than 24 hours.  And, the OCFA was cited for failure to report the event.  The Cal/OSHA Administrative Law Judge (ALJ) upheld the citation based upon conclusions that the teacher had sustained a serious injury and that the injury was not reported by the OCFA.  The issues of OCFA’s knowledge of or duty to inquire as to the nature of the injury following the care they provided were not addressed.

The Occupational Safety and Health Appeals Board (OSHAB) took the matter under review and, on April 9, 2013, issued a Decision After Reconsideration reversing the ALJ’s Decision. The OSHAB wrote that it does recognize the first responders’ serious injury report as part of a dual reporting regime but does not read the statute as requiring first responders to further investigate events to which they respond and can’t reasonably conclude are “serious” at the time of the call.

There is sure to be further discussion (and litigation) as to the “reasonable conclusions” reached in future cases.  For now, here is what we have to work with:

1. First responders must exercise their best judgement and expertise in determining whether an injury or illness is serious;

2. First responders should be conservative and error toward reporting;

3. The evaluation need only be based upon facts known at the time aid is rendered and during the time the injured person is in the custody and care of the first responder; and,

4. There is no obligation to investigate events or information not evident at the time of the response.




Comment from Dave Smith
Time May 30, 2013 at 2:47 pm

I would expect that any fire department or public agency EMS will report ANY case where they are called to a workplace, regardless of injury severity. That has been my experience in Alameda County.

Comment from admin
Time June 6, 2013 at 1:56 pm

Dave’s experience is valid for a lot of public agencies. You can bet that the OCDF will be in that category from now on.

Comment from Stephen Brooks
Time June 3, 2014 at 9:45 am

SFFD has erred on the side of caution and calls in all workplace injuries they are called to. Recently we recieved a call from the District Manager shorlty after the last ‘serious accident’ we had and well before we were required to call in the injury.

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