A citation issued to Northshore Mining Co. for failing to report an eye injury was upheld by the Commission where evidence showed the employee took time off from work to have debris removed from his eye, and could not work the remainder of the shift. The decision reverses an Oct. 21, 2015, decision by ALJ David Barbour (22 MSHN D-2382).
The violation stemmed from a 2013 Part 50 audit, which found six unreported incidents, five of which were challenged. At issue in the case was whether a miner with an eye problem suffered from an “occupational injury” as defined in §50.2(e).
Under this section, “Occupational injury means any injury to a miner which occurs at a mine for which medical treatment is administered, or which results in death or loss of consciousness, inability to perform all job duties on any day after an injury, temporary assignment to other duties, or transfer to another job.”
In this case, the employee was working on an oiling station when a piece of debris got into his eye. He tried to unsuccessfully flush it out, and after seeing a doctor, used eye drops for seven days, but the eye remained irritated. On May 29, the miner worked for four hours, and then took off six hours of personal time and he visited a medical clinic. The doctor’s report stated that a particle was removed from his eye using a spud, and he was treated with a tetracaine anesthetic. He returned to work on May 30 with no limitations. The time off to see the doctor on the second visit was charged to him as personal time.
Violation Not Proved
Judge Barbour said the Secretary did not prove a violation. First, “taking time off from work to visit a doctor does not necessarily make an injury reportable,” Judge Barbour wrote. It is the reason for taking the time off that is important. In this case, the secretary did not prove that the miner received “medical treatment.”
In distinguishing between “medical treatment” and “first aid” for eye injuries, §50.20-3(a)(5) specifies that the removal of foreign material that is embedded in the eye is “medical treatment” and the removal of foreign material that is not embedded is “first aid.”
Judge Barbour said he “recognizes that at first blush there is something bizarre about holding a corneal foreign body that is impervious to flushing and artificial tears and that remains on the cornea for six days and is removed with a “blunt triangular knife” is not “reportable.” However, it is a fact that there are two types of corneal foreign bodies, those that lie on the surface of the eye’s cornea and those that are embedded in the cornea, and the Secretary has legally recognized the distinction.”
In this case, the judge said, “There is no way to definitively conclude from the record whether the foreign body that afflicted the employee’s right eye was lodged on the surface of his cornea or was imbedded in it. The medical records do not say and treating physicans’ were not called as witnesses and apparently were not deposed. Thus, there is no way to determine whether the treatment he received on May 29 was “medical treatment” and his absence from work was reportable.”
In overturning the judge’s decision, the Commission found the evidence was uncontroverted “that the miner was unable to work on the day of his second visit to the doctor. The judge erred by failing to consider this evidence.”
The judge focused on “medical treatment” in making his determination but should have focused on the miner’s inability to work the remainder of his shift. The miner’s discharge instructions after the procedure stated the miner was to stay out of the wind, keep his eye closed as much as possible, and try to sleep.
The commissioners agreed that they did not have to make a decision on whether the particle was imbedded in the miner’s eye or lodged on the surface. The inability to work for the rest of the miner’s shift established a reportable occupational injury under §50.2(e), which must be reported. It did not matter if the miner used his personnel time to take the rest of the day off, and Northshore was required to report the injury.
Northshore was fined $117 under §50.20(a) for failing to report, and a fine of $100 under §50.11(b) for failing to include information required in the company’s investigation report.
NORTHSHORE MININC CO., 01/11/2017, FMSJRC No. LAKE 2014-219-M; 24 MSHN D-6 (previous decision: 22 MSHN D-2382)