Administrative Law Judge’s Decision Overturned on Reporting Injury

Hey, did you hear the one about the Administrative Law Judge’s decision being overturned by the Appeals Board?  Unfortunately folks this one doesn’t have a great punch line.

There was an incident where an employee became violently ill at their workplace and was taken to the hospital by ambulance where he died an hour later.  The employer was not notified of the employee’s death until a day later.  The employer was issued a citation by DOSH for not reporting a workplace fatality in a timely matter as per 8 CCR §342.  Section 342 states that an employer must report a death or serious injury or illness, “immediately” which is defined as “as soon as practically possible but not longer than 8 hours after the employer knows or with diligent inquiry would have known of the death or serious injury or illness”.  This time can be extended to 24 hours after the incident under certain circumstances.

The employer appealed the citation, and the matter was then sent to an Administrative Law Judge for review.  The judge filed a decision to dismiss the citation/proposed penalty since the citation was based on not reporting a death at work, which was not the case.  The judge stated that if the employer had been cited for failure to report a serious workplace injury or illness (and not workplace fatality), that the citation would have been upheld.

Subsequently the Appeals Board was petitioned to reconsider the judge’s decision.  Per the State of California, Department of Industrial Relations appeal process a petition for reconsideration must be based upon one or more of these grounds: (1) that by the order or decision the appeals board acted without or in excess of its powers; (2) that the order or decision was procured by fraud; (3) that the evidence does not justify the finding of fact; (4) that the petition has just discovered new material evidence that could not with reasonable diligence have been produced at the hearing; and/or (5) that the findings of fact do not support the decision.

Upon review, the Appeals Board decided the judge took the violation too literally and that the citation was sufficient notice that DOSH was citing the employer for failure to report the incident as a workplace fatality “in connection with any employment”.  The connection here being that the employee had become violently ill at the workplace and was taken by ambulance to the hospital, and then died an hour later (even though there was no industrial cause to his illness and death). The Appeals Board also deemed the employer received due process regarding its defense.

In the end, the Appeals Board decided to reverse the judge’s decision and the employer has been penalized with making a late report.

Incidences like these are a great reminder to please make sure your company has a clear understanding about reporting and protocols in place to comply with reporting procedures as defined in 8 CCR 342.  If you have reporting questions or need guidance please contact us.