PHILADELPHIA (CN) — A coal company that waited hours to alert regulators after one of its miners was temporarily crushed between heavy machines struggled Tuesday to contest a citation at the Third Circuit.
Robert Stern was a miner for Consol Pennsylvania Coal Co. in 2013 when he was crushed between a rail car and a scoop operator. The federal Mine Safety and Health Administration has a statute that requires accidents to be reported within 15 minutes once a mine operator knows if there is a potential for death.
Consol did not alert the MSHA until about two hours after the accident. By then, Stern had been removed from in between the machines but was unable to move his legs. EMTs on the scene worried about internal bleeding.
After the MSHA issued a $5,000 penalty, Consol lodged an administrative challenge that was rejected by the Federal Mine Safety and Health Review Commission.
Though the commission determined that Consol should have known the severity of Stern’s injuries, Hardy Pence attorney James McHugh argued for the company Tuesday that officials at the scene did not have cause to see Stern’s injury as life-threatening.
Part of a three-judge panel hearing Consol’s appeal, U.S. Circuit Judge Kent Jordan questioned McHugh on why the miner would be asking co-workers to tell his wife and family he loved them if he did not feel he was likely to die.
McHugh replied that any injured miner would say the same thing, but the argument did not appear to hit the mark.
“You’d say that if you scraped your knee?” asked Judge Jordan. “That’s not logical.”
U.S. Circuit Judge Stephanos Bibas asked McHugh if the potential for death should be measured in the 15 minutes or after.
“Are we supposed to use hindsight here?” Bibas asked.
McHugh argued that, since Stern survived, a medical professional should be allowed to present evidence after the fact to show the injuries were not life-threatening.
Judge Jordan pushed back, saying that it should not take a doctor to say that being crushed is harmful.
“Some things are just so bad that you don’t need an expert to come in and say, ‘Wow, that could kill you,’” said Judge Jordan.
Cheryl Blair-Kuewski, an attorney with the Labor Department, told the panel that the workers at the mine knew these injuries had a potential for death, and should have reported it.
Judge Jordan questioned whether mining operators are entitled to some wiggle room on when they have to report an accident.
“They should be able to say that, when things are unclear in those 15 minutes, you can bring evidence later,” said Judge Jordan.
Blair-Kuewski pushed back on this, however, saying that the request on operators is simple: when someone is injured, call within 15 minutes.
U.S. Circuit Judge Richard Nygaard rounded out Tuesday’s panel, participating in arguments via video call.
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