GENERAL MOTORS CORPORATION, INLAND DIVISION

OSHRC Docket No. 76-5033

Occupational Safety and Health Review Commission

August 29, 1980

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Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.  

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

William S. Kloepfer, Assoc. Regional Sol.

M. Alice McCann, General Motors Corp., for the employer

OPINION:

DECISION

BY THE COMMISSION:

This is a case under the Occupational Safety and Health Act of 1970, 29 U.S.C. § §   651-678 ("the Act").   A decision of Administrative Law Judge Frank B. Zinn is before the Commission for review under section 12(j) of the Act, 29 U.S.C. §   661(i).   In his decision, Judge Zinn found that Respondent, General Motors Corporation, Inland Division, had violated 29 C.F.R. §   1904.2 by not recording certain incidents in its OSHA Form No. 100. n1 He assessed a $90 penalty.   The incidents involved three employees of Respondent who were exposed to a toxic chemical, Toluene Diisocyanate ("TDI"), and subsequently were hospitalized for respiratory illnesses. Chairman Cleary granted Respondent's petition for review on the issue of whether the administrative law judge erred in finding that Respondent had violated section 1904.2 by failing to record these incidents.   The Commission affirms Judge Zinn's decision.

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n1 At the time of the alleged violation in this case, section 1904.2 provided, in pertinent part:

§   1904.2 Log and summary of occupational injuries and illnesses.

(a) Each employer shall, except as provided in paragraph (b) of this section, (1) maintain in each establishment a log and summary of all recordable occupational injuries and illnesses for that establishment . . .   For this purpose, Occupational Safety and Health Administration OSHA Form No. 100 or any private equivalent may be used.   OSHA Form No. 100 or its equivalent shall be completed in the detail provided in the form and the instruction contained in OSHA Form No. 100 . . . .

The definition of Occupational Illness on the reverse side of Form No. 100 reads as follows:

Occupational Illness of an employee is any abnormal condition or disorder, other than one resulting from an occupational injury, caused by exposure to environmental factors associated with employment.   It includes acute and chronic illnesses or diseases which may be caused by inhalation, absorption, ingestion, or direct contact.   (Emphasis added.)

On December 30, 1977, OSHA Forms Nos. 100 and 101 were consolidated and replaced, with no substantive changes, by OSHA Form No. 200. 42 Fed. Reg. 65164 (1977).

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I

The Inland Division of General Motors operates a complex of factories that manufacture automotive products.   Approximately two thousand of the eight thousand employees at its plant in Vandalia, Ohio are exposed to TDI, which is used to manufacture the urethane foam contained in car seats and molding.   It is well established in the record that exposure to sufficient quantities of TDI can have adverse effects on human beings.   Exposure to TDI can affect the respiratory system and cause wheezing, shortness of breath, tightness in the chest, and prolonged coughing, which may include coughing blood.

The three employees in this case, Mary Reed, Sonya Trimble, and Homer Porter, all worked in sections of the Vandalia plant which used TDI.   When the employees began their jobs at Inland, they received medical examinations to measure their suitability for work in areas using TDI.   Because none of the employees had respiratory disorders which TDI is known to aggravate, such as asthma or bronchitis, they were cleared to work in TDI areas.   Shortly after beginning work in areas containing TDI, each of the employees [*4]   began to suffer respiratory problems.   They experienced difficulty breathing, tightness in the chest, and coughing.   Each employee went to his or her family doctor to seek medical advice.   Eventually, all three employees were hospitalized for about a week on the advice of their family doctors.

Ms. Reed was told by her doctor that she had bronchitis. Ms. Reed's doctor gave her a note to give to her employer, describing her condition.   In part, the note read:

It is felt that the bronchitis is due, particularly to the patient's smoking, but seems to be aggravated by working with the material that she does at Inland.   The patient's condition is obviously aggravated by her smoking and possibly aggravated by the chemical.

Ms. Trimble and Mr. Porter also received notes from their doctors to give to their employer which explained their illnesses. Ms. Trimble's illness was described by her doctor as allergic bronchitis caused by fume inhalation.   Mr. Porter's doctor said that Mr. Porter's condition was a "reversible destructive airway disease, probably related to exposure to TDI."

After returning to work, each employee went to Respondent's medical department.   There, they were interviewed [*5]   by a staff person but were not examined by a doctor. Although none of the family doctors had specifically cited TDI as the sole cause of the employees' respiratory problems, the Respondent transferred the three employees to departments which did not use TDI.   This was done under Respondent's liberal transfer policy, in which employees were routinely transferred to other sections of the plant whenever they experienced any problems with their work situation.   After the transfers, the health of all three employees showed marked improvement, and based on the record, they experienced no similar problems after their transfers.   None of these incidents were reported on the Company's OSHA Form No. 100 for Industrial Illnesses and Accidents.

II

In its brief to the administrative law judge, Respondent argued that it had to record only those occupational illnesses that it had determined were caused by the occupational environment.   Respondent based its argument upon its interpretation of the regulations and the instructions contained in OSHA Form No. 100.   Section 1904.2, note 1 supra, in pertinent part provides that,

OSHA Form No. 100 or its equivalent shall be completed in the   [*6]    detail provided in the form and the instruction contained in OSHA Form No. 100. (Emphasis added by Respondent)

The instructions to OSHA Form No. 100 require that all occupational illnesses be recorded and defines occupational illness:

Occupational illness of an employee is any abnormal condition or disorder, other than one resulting from an occupational injury, caused by exposure to environmental factors associated with employment.   It includes acute and chronic illness or diseases which may be caused by inhalation, absorption, ingestion, or direct contact.   (Emphasis added by Respondent)

Respondent contended that it had not determined that the three illnesses in this case were caused by the occupational environment and so it was under no obligation to record the incidents.   At best, the exposure to TDI merely aggravated a previous condition of the employees but aggravations of existing conditions, Respondent contended, do not have to be recorded. In its defense, Respondent noted that Ms. Reed's own doctor said that her illness was not caused by TDI.   Similarly, Ms. Trimble's doctor said she had bronchitis, and a Workman's Compensation Board found that her sickness was not [*7]   work related.   In Mr. Porter's case, Respondent claimed that a strong possibility existed that his condition was caused by the pollen and pollutants in the area.

In its brief to Judge Zinn, the Secretary argued that the Act and its regulations place a much broader obligation on employers to report occupational illnesses. Section 8(c)(2) of the Act, the Secretary argued, requires that "all work-related injuries and diseases" be reported. n2 Furthermore, the Secretary contended, the regulations specifically require that illnesses which result in lost workdays, job transfers, or diagnosed occupational illnesses which are reported to the employer must be recorded. n3 According to the Secretary, a broad interpretation of the employer's obligation to record occupational illnesses is substantiated further by looking at the legislative history of the Act and the interpretations of the regulations promulgated by the Secretary of Labor in a pamphlet, What Every Employer Needs to Know About Recordkeeping. n4

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n2 Section 8(c)(2), 29 U.S.C. §   657(c)(2), provides:

The Secretary, in cooperation with the Secretary of Health, Education, and Welfare, shall prescribe regulations requiring employers to maintain accurate records of, and to make periodic reports on, work-related deaths, injuries and illnesses other than minor injuries requiring only first aid treatment and which do not involve medical treatment, loss of consciousness, restriction of work or motion, or transfer to another job.

n3 Section 1904.12(c) provides:

§   1904.12 Definitions.

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(c) "Recordable occupational injuries or illnesses" are any occupational injuries or illnesses which result in:

(1) Fatalities, regardless of the time between the injury and death, or the length of the illness; or (2) Lost workday cases, other than fatalities, that result in lost workdays; or, (3) Nonfatal cases without lost workdays which result in transfer to another job or termination of employment, or require medical treatment (other than first aid) or involve: loss of consciousness or restriction of work or motion.   This category also includes any diagnosed occupational illnesses which are reported to the employer but are not classified as fatalities or lost workday cases.   (Emphasis added)

n4 The following question and answer from the pamphlet is particularly pertinent to this case:

Q.   What are the reporting requirements of pre-existing physical deficiencies so far as the OSH Act is concerned?

A.   None.   However, each case which involves aggravation of pre-existing physical deficiency must be examined to determine whether or not the employee's work was a contributing factor.   If a work accident or exposure in the work environment contributed to the aggravation, the case is work related.   It must be recorded if it meets the other requirements of recordability.

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Judge Zinn concluded that the Respondent should have recorded the illnesses of the three employees.   The judge essentially found that the uncontroverted evidence giving Respondent notice that the illnesses were probably connected to the occupational environment was sufficient to make the illnesses recordable. A standard of definite causation was not required.   In his decision, Judge Zinn said:

The information that the Inland medical department had on each of the employees indicated that the physician who had treated them believed that they should be transferred away from work involving chemical fumes. Each of the physicians indicated the worker's ailment was related to either TDI or fumes. While it is true that none of these were declarative statements labelling the disease precisely and judging them to be job caused illnesses, they were enough to have put the Respondent on notice of probable connection between their employment and their ailments. Respondent should have logged the incidents in the Form 100.

The judge also emphasized that the Respondent's doctor had decided that the illnesses were [*9]   not caused by exposure to TDI without examining any of the sick employees.   As the judge's decision pointed out:

. . . there was no determination by Inland's medical department that the illnesses were not job related.   The information from the treating physicians was all that the employer had when the employees returned to work.   This should have been accepted and the illnesses logged unless medical opinion to the contrary based on actual examination and evaluation of the workers involved had been obtained.

Essentially, the parties have put forward the same arguments to the Review Commission on review of the judge's decision that they did to the administrative law judge.   For the reasons that follow, we affirm Judge Zinn's decision.

III

Section 8(c)(1) of the Act, 29 U.S.C. §   657(c)(1), requires all employers to keep such records as the Secretary of Labor and the Secretary of Health, Education, and Welfare might require by regulation. Section 8(c)(2), 29 U.S.C. §   657(c)(2), requires the Secretaries of the two departments to prescribe regulations requiring employers to keep records of work-related injuries and illnesses.

Examination of the legislative history of these provisions [*10]   shows a clear congressional intent that this reporting requirement be interpreted broadly in order to develop information for future scientific use.   First, the Senate Committee Report accompanying the bill (S.2193) that was reported to the floor recognized the crucial role of the recording and reporting function.

Full and accurate information is a fundamental precondition for meaningful administration of an occupational safety and health program. n5

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n5 Subcommittee on Labor of the Committee on Labor and Public Welfare of the United States Senate, 92d Cong., 1st Sess., Legislative History of the Occupational Safety and Health Act of 1970, (Comm. Print, 1971) at p. 156.

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Then, the Senate frankly stated that occupational and non-occupational illnesses no longer fell into neat catagories.

Recent scientific knowledge points to hitherto unsuspected cause-and-effect relationships between occupational exposures and many of the so-called chronic diseases-cancer, respiratory ailments, allergies, heart disease, and others.   [*11]   In some instances, the relationship appears to be direct: asbestos, ionizing radiation, chromates, and certain dye intermediaries, among others, are directly involved in the genesis of cancer.   In other cases, occupational exposures are implicated as contributory factors.   The distinction between occupational and non-occupational illnesses is growing increasingly difficult to define. n6 (Emphasis added)

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n6 Id. at 142.

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With these considerations in mind, both the Senate and the House Committees clearly stated that the reporting requirement should be a broad one, encompassing all work-related occupational illnesses and injuries and not just injuries and illnesses caused by the work environment.   Both reports expressed the hope that employers would err on the side of overreporting rather than underreporting occupational injuries and illnesses. The Senate Report said:

The Committee recognized the fact that some work-related injuries or ailments may involve only a minimal loss of work time or perhaps none at   [*12]   all, and may not be of sufficient significance to the Government to require their being recorded or reported.   However, the Committee was also unwilling to adopt statutory language which in practice might result in underreporting. The Committee believes that records and reports prescribed by the Secretary should include such occurrences as work-related injuries and illnesses requiring medical treatment or restriction or reassignment of work activity, as well as work-related loss of consciousness. n7 (Emphasis added)

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n7 Id. at 157.

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The House Report echoed this sentiment when it spoke of "the greater peril of underreporting" and said, "The Committee . . . intends that its language of 'all work-related injuries, diseases and ailments' should be treated as a minimum floor . . ." n8

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n8 Id. at 860.

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In promulgating the regulations   [*13]   at 29 C.F.R. Part 1904, the Secretary mirrored the same concerns as the Congress.   The scope and purpose section indicates the Secretary's interest in developing information for future scientific use.   Section 1904.1 says the reporting requirement is ". . . for developing information regarding the causes and prevention of occupational accidents and illnesses . . ." Furthermore, the broad definition of recordable occupational injuries and illnesses in section 1904.12(c), note 3 supra, shows the Secretary's concern that injuries and illnesses not be underreported.   The definition includes injuries and illnesses which result in lost workdays or job transfers and any diagnosed illnesses which are reported to the employer.

The illnesses in this case were sufficiently serious to be recordable. Each illness resulted in lost workdays and a transfer to another job.   This places the incidents squarely under the definition in 29 C.F.R. §   1904.12(c)(3).   The only question that remains is whether the illnesses were sufficiently connected to the employees' occupation so that they had to be recorded.

In each case, a physician diagnosed the illnesses to be at least related to chemical fumes [*14]   or TDI.   And although Respondent's chief medical officer, Dr. Gibson, questioned the expertise of the diagnosing physicians, at the time the employees were transferred he did not directly challenge the physicians' diagnoses or develop a diagnosis of his own.   Also, the symptoms exhibited by the employees were symptoms associated with exposure to TDI.   The effects of TDI are well known and well established in the record.   All the evidence available to the Respondent should have led it to the conclusion that the illnesses were related to the occupational environment.   Under these circumstances, the Respondent had an obligation to record the illnesses.

Respondent has argued that it was only responsible to record illnesses which it found were directly caused by the occupational environment.   We reject this narrow interpretation of the recording obligation.   To accept Respondent's interpretation would impose a static view of scientific knowledge.   Only illnesses in which the known cause was the occupational environment would be recorded. Unknown medical correlations between disease and the workplace would be obscured by this inadequate recording obligation.   Under this interpretation [*15]   of the statute and regulations, OSHA and NIOSH would be significantly restrained from fulfilling their statutory obligation of making the workplace healthier.

As our discussion of the legislative history of the Act indicates, the primary purpose of the recording obligation is to develop information for future scientific use.   Moreover, Congress showed a clear preference for overreporting injuries and illnesses rather than underreporting them.   Given this background, employers must record illnesses in which the occupational environment either was a contributing factor to the illness or aggravated a preexisting condition.   Furthermore, employers must record illnesses when, as in this case, there is medical evidence from personal physicians linking the illness and the occupational environment and no other medical evidence contradicts this demonstrated relationship. n9

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n9 Respondent contends on review that Judge Zinn should not have relied on the pamphlet, What Every Employer Needs to Know About Recordkeeping, in making his decision.   As our discussion indicates, we believe that the language of the statute and regulations, along with the legislative history of the Act, provides more than enough support to affirm Judge Zinn's determination that Respondent violated §   1904.2 when it failed to record the illnesses in this case.   We therefore need not consider whether the judge's partial reliance on the pamphlet was proper.

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Respondent also argued that any violation in this case must be classified as de minimis. Violations have been classified as de minimis when the Commission has found that the violations were so "trifling" that the entry of an abatement order or the assessment of a penalty was inappropriate. n10 However, this decision demonstrates that the Commission does not consider the reporting requirements of the Act to be a trifling matter.   Those requirements are a cornerstone of the Act and play a crucial role in providing the information necessary to make workplaces safer and healthier.   Therefore, such violations cannot be properly classified as de minimis, for to do so would weaken significantly the reporting requirements of the Act and the Secretary's regulations.

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n10 Continental Oil Co., 79 OSAHRC 42/C3, 7 BNA OSHC 1432, 1979 CCH OSHD P23,626 (No. 13750, 1979), and cases cited therein.

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For the reasons stated above,   [*17]   we conclude that Judge Zinn properly found Respondent in violation of 29 C.F.R. §   1904.2.   We also conclude that the penalty of $90 assessed by the judge is appropriate.   Accordingly, the judge's decision is affirmed.   SO ORDERED.