46 COR 40-8161 [¶22,946R]

Cal. Code Regs, tit. 8, § 342(a) (2019) – The Appeals Board concluded the death of an employee that occurred in a hospital, about an hour after he became visibly ill at Employer’s worksite, was reportable under because it had a sufficient connection to the employment.

Digest of COSHAB’s Decision After Reconsideration and Order of Remand dated May 16, 2019, Inspection No. 1200858.

Ed Lowry, Chair.

Judith S. Freyman, Board Member.


Background. The Division issued one citation to Employer, a manufacturer of computer equipment, for failure to timely report a workplace fatality to the Division. An ALJ decision dated October 4, 2018 [¶22,876] vacated the citation and proposed penalty. The Board ordered reconsideration on its own motion.

Decision after reconsideration and order of remand. The safety order provides, “Every employer shall report immediately by telephone or telegraph to the nearest District Office of the Division of Occupational Safety and Health any serious injury or illness, or death, of an employee occurring in a place of employment or in connection with any employment.

“Immediately means 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. If the employer can demonstrate that exigent circumstances exist, the time frame for the report may be made no longer than 24 hours after the incident.”

Section 330(h) provides that “serious injury or illness” means “any injury or illness occurring in a place of employment or in connection with any employment which requires inpatient hospitalization for a period in excess of 24 hours for other than medical observation or in which an employee suffers a loss of any member of the body or suffers any serious degree of permanent disfigurement ….”

The ALJ dismissed the citation on grounds that no death occurred in the workplace, noting the parties’ stipulation that the death occurred in the hospital and not in a place of employment. A footnote in the ALJ decision indicated the ALJ would have affirmed the citation had it been issued for a failure to report a serious injury or illness; but it was issued for failure to report a death.

The Appeals Board found the ALJ focused too literally on the alleged violation description language. Administrative proceedings are not bound by strict rules of pleading; liberal rules of administrative pleading require only that the appellant be informed of the substance of the charge and afforded the basic, appropriate elements of procedural due process (citation omitted). Here, the alleged violation description stated Employer failed to report a fatality in the workplace, while the employee actually died in hospital approximately an hour after vomiting blood in the workplace. The Appeals Board concluded the citation was sufficient to put Employer on notice that the Division charged Employer for failing to report incident as a death “in connection with any employment.” The Board declined to find that Employer failed to receive due process sufficient to allow it to defend itself.

Further, the employee’s death had a sufficient connection to his employment to warrant a report, the Board stated. The employee had been coughing up blood at work, and was taken from work by ambulance to the hospital, where he died just over an hour later. Employer learned of the death the following day. The ultimate determination that his death did not have an industrial cause did not mean that no report was required or that no connection existed, the Board stated.

To warrant a report, the connection between the workplace and the employee’s death need not necessarily be causal. Here, a sufficient connection existed because the employee vomited blood in the workplace, his employer called paramedics to transport him to the hospital, and he died about an hour later in the hospital. The reporting requirement is separate from, not a determination that, the employer is liable for the injury or death (Dubug #7, Cal/OSHA App. 92-1329, DAR (June 26, 1995) [Digest ¶ 18,775R]).

A death occurring in the workplace is reportable even if it is ultimately determined to be non-industrial (Orange County Fire Authority, Cal/OSHA App. 10-3667, DAR (Jan. 3, 2013) [Digest ¶ 22,145R]; Honeybaked Hams, Cal/OSHA App. 13-0941, DDAR (June 25, 2014) [Digest ¶ 22,375R]). The same reasoning underlying those decisions applies to deaths that have multiple circumstantial and temporal connections with employment, the Board stated.

Requiring reports of illnesses, injuries and deaths occurring at work, or that have a tangible connection to work, even if not ostensibly work-related, provides the Division with the opportunity to acquire data that may allow it to recognize patterns indicating workplace hazards that employers might not have sufficient expertise or experience to recognize on their own (Orange County Fire Authority, supra; Honeybaked Hams, supra). Any doubts about whether a death is related to a workplace must be resolved in favor of a report, in order to allow the Division to quickly respond (Dubug #7, supra).

Finally, the Board noted the citation sufficiently alleged, and the facts warranted a finding, of failure to timely report a serious illness occurring in a place of employment. The objective indicators would have required a reporting of serious illness (Burbank Recycling, Inc., Cal/OSHA App. 10-0562, DAR (June 30, 2014) [Digest ¶ 22,379R]). The Appeals Board reversed the ALJ decision, and affirmed the cited violation of §342(a).

Penalty. Employer made a late report. There was no evidence as to the factors that would allow for modification of the $5,000 penalty, pursuant to Central Valley Engineering & Asphalt, Inc., Cal/OSHA App. 08-5001, DAR (Dec. 4, 2012) [Digest ¶ 22,124R]. The Board, thus, remanded the matter to the presiding ALJ for consideration of the appropriate penalty for a late report and to take further evidence on adjustment factors.