1) An ALJ ruled that an employee's heart attack at a mine did not constitute an "injury" requiring immediate reporting under MSHA regulations, creating a split with previous ALJ decisions. 2) The regulations require immediate reporting of accidents involving injury with a potential for death; the ALJ found a heart attack was an illness, not an injury. 3) However, the ALJ distinguished cases where CPR was required or the victim was unresponsive, requiring immediate reporting in those scenarios still. The full Commission has yet to address this issue definitively.

1. PattonBoggs.com Health and Safety Law Client Alert 1
SEPTEMBER 30, 2013
This Alert provides only general
information and should not be
relied upon as legal advice. This
Alert may be considered attorney
advertising under court and bar
rules in certain jurisdictions.
For more information, contact your
Patton Boggs LLP attorney or the
authors listed below.
PETER S. GOULD
pgould@pattonboggs.com
ERIK M. DULLEA
edullea@pattopnboggs.com
ANNE D. HARRINGTON
aharrington@pattonboggs.com
GREGORY M. LOUER
glouer@pattpnbopggs.com
CHRISTA LEE ROCK
crock@pattonboggs.com
WESLYN P. REED-RICE
wreed@pattonboggs.com
MAXINE MARTIN
msmartin@pattonboggs.com
ABU DHABI
ANCHORAGE
DALLAS
DENVER
DOHA
DUBAI
NEW JERSEY
NEW YORK
RIYADH
WASHINGTON DC
HEALTH AND SAFETY LAW CLIENT ALERT
ALJ RULING ON HEART ATTACK
REPORTING REQUIREMENTS
CREATES SPLIT OF AUTHORITY
In Vulcan Construction, decided August 3, 2013, Federal Mine Safety and Health
Review Commission Administrative Law Judge Gill held that an employee’s heart
attack did not constitute an immediately reportable accident because it was not an
“injury” under 30 C.F.R. § 50.10(b). This decision creates a split of authority
among ALJs, as previous decisions have upheld citations and penalties for failure
to immediately report heart attacks.
30 C.F.R. § 50.10 requires that an operator must immediately contact MSHA
within 15 minutes after the operator knows or should know that an accident has
occurred involving (a) a death at the mine, (b) an injury that has the reasonable
potential to cause death, (c) an entrapment that has a reasonable potential to cause
death, or (d) any other accident.
In Vulcan, Judge Gill concluded that a heart attack is a disease and an illness,
which are different from an “injury” which triggers the reporting requirements
under 50.10(b). Co-workers saw Vulcan’s employee in physical distress; he had
chest pain, and became faint and discolored. He never lost consciousness and he
never received CPR. Vulcan’s plant manager drove the employee to the hospital
where doctors diagnosed him as having suffered a heart attack while working at
the mine. Vulcan reported the heart attack seven days later when it submitted a
Form 7000-1, within the 10 day deadline to for report accidents, injuries, and
illnesses. Vulcan was later cited for failing to immediately report the heart attack.
Judge Gill vacated the citation because the unambiguous, plain text of 50.10(b)
does not include illness or disease. Judge Gill stated, “[i]f the immediate accident
notification requirement were read to include heart attacks within the meaning of
injury, the result would be an overlap of the concepts of injury and illness….”

2. PattonBoggs.com Health and Safety Law Client Alert 2
Initially, Judge Gill’s decision appears to contradict other ALJ holdings that upheld citations for failure to immediately
report an employee’s heart attack. See E.S. Stone & Structure, Inc., 33 FMSHRC 515 (ALJ Augustine, 2011); Standard
Sand & Silica Co., 2011 WL 68880704, FMSHRC (ALJ McCarthy, 2011); Pennsy Supply, Inc., 2012 FMSHRC LEXIS
201 (ALJ Koutras, 2012). But in each of these cases, the heart attack victim was found unresponsive, CPR was
administered, and the victim was later pronounced dead.
Judge Gill distinguished these cases because of the need for CPR and the presence of an unresponsive
victim. Beginning in 2003, operators were required to immediately report any injury treated with CPR because the
need for CPR indicates that the injury has a reasonable potential to result in death. Additionally, when an employee is
found unconscious and in need of CPR, there is no way for the operator to know whether mine activities or
conditions caused the injury or illness until there is a diagnosis or, in some cases, an autopsy. Because of this, Judge
Gill reasoned that the best policy is to require immediate reporting in these circumstances. If an unknown or hidden
mine hazard caused the harm to the miner, valuable time would have been wasted during the operator’s delay in
reporting.
Although Judge Gill decided that a heart attack is not an immediately reportable injury, under his reasoning operators
are really left with only the narrowest window: immediate reporting is not required for heart attacks, only when the
employee remains conscious and CPR is not required. One may view Vulcan to contradict prior ALJ rulings, and the
Commission has yet to weigh in on the issue. Thus, it is unclear how heart attacks will ultimately be treated under
MSHA’s reporting requirements until the full Commission weighs in.