SECRETARY OF LABOR,
Complainant,

v.

AMOCO CHEMICAL CORPORATION,
Respondent.

OIL, CHEMICAL AND ATOMIC WORKERS
INTERNATIONAL UNION and its
LOCAL 8--732,

OSHRC Docket Nos.
78-0248, 78-0250

Authorized
Employee Representative.

Decision

Before: BUCKLEY, Chairman; RADER and Wall, Commissioner.
BY THE COMMISSION:

This case is before the Occupational Safety and Health Review Commission under 29 U.S.C. 661(j), section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act").  The Commission is an adjudicatory agency, independent of the Department of Labor and the Occupational Safety and Health Administration ("OSHA").  It was established to resolve disputes arising out of enforcement actions brought by the Secretary of Labor under the Act and has no regulatory functions.  See section 10(c) of the Act, 29 U.S.C. 659(c).

Administrative Law Judge Benjamin Usher affirmed an item of a citation issued by the Secretary alleging that, contrary to 29 C.F.R. 1904.2(a), Amoco Chemical Corporation had failed to record certain occupational illnesses.  The judge also affirmed a citation item alleging that Amoco violated section 5(a)(1) of the Act because it failed to inform one of its employees, Lewis Kofron, of a potentially malignant condition in his lung.  The judge characterized both violations as "willful" and assessed penalties of $10,000 for each violation.  Amoco filed a petition for discretionary review, which was granted.  We reverse Judge Usher's decision and vacate both citation items.

Item 1: Section 1904.2, Recording of Occupational Illnesses

Item 1 of the citation alleged that contrary to section 1904.2(a), "[i]llness arising from occupational exposure to asbestosis/asbestos disease) were not recorded." Section 1904.2(a) states:

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; and (2) enter each recordable injury and illness on the log and summary as early as practicable but no later than 6 working days after receiving information that a recordable injury or illness has occurred.  For this purpose form OSHA No. 200 or an equivalent which is as readable and comprehensible to a person not familiar with it shall be used.  The log and summary shall be completed in the detail provided in the form and instructions on form OSHA No. 200.

By the standard's term, an employer is obligated only to enter into log (1) an injury that is (2) "occupational" and (3) "recordable."[[1]]  Our decision focuses on t he first element of the employer's duty--that of sertaining that an employee has an "illness" within the meaning of the standard. 

Although the Secretary's citation and complaint alleged that asbestosis was not recorded, they did not state the names of the employees whose illnesses Amoco failed to record.  At the outset of the hearing, however, the Secretary read into the record a stipulation that the work activities of eight named employees were restricted.  The employees were Literal, Mulhern, Strickler, Putnam, Pearson, Betts, Callaway and Kofron.  The Secretary also established that Kofron had lost workdays.  The Secretary alleged that Amoco should have recorded these work restrictions and lost workdays because they resulted from an occupational illness--asbestosis.[[2]]  Judge Usher affirmed the citation item, finding that Amoco's physician had all the information necessary to diagnose asbestosis but failed to do so.

Amoco manufactured polypropylene products at a plant in New Castle, Delaware.  The plant opened in 1961 and Amoco purchased the plant from another company in 1968.  When Amoco took over the plant, it continued the processes the prior owner was using, which involved the use of asbestos.  In 1972, Amoco discontinued the use of asbestos and substituted talc.  Some talc contained asbestos.  By the middle of 1976, Amoco had switched completely to asbestos free talc.

During this time, many of Amoco's employee were exposed to asbestos.  Exposure to asbestos has been linked to several serious illnesses, the most common of which is asbestosis.[[3]]  With asbestosis, the lining of the lungs, or pleura, thicken, causing impairment of the lungs' breathing capacity.  Asbestosis is progressive and, for the most part, irreversible.  Respiratory impairment worsens with time, even if exposure to asbestos has ceased.

The most common symptom of asbestosis is  shortness of breath, sometimes accompanied by a persistent cough.  In its early stages, asbestosis is difficult to distinguish from other pulmonary conditions, however.  In the later stages of the illness, a person may have calcification of the pleura, clubbing of the hands or crackling sound in his chest, called rales.  In addition to these symptoms, asbestosis commonly exhibits itself in abnormal chest x-rays and abnormal results of pulmonary function tests.  The hardening of the pleura appears as opaque or "shaggy" areas on the x-ray of the lung.  The hardening of pleura causes diminished lung capacity, that is, the inability to expel a normal amount of air from the lungs.  This diminished capacity can detected by a pulmonary function test.

Because of Amoco's and the Oil, Chemical Atomic Workers International Union's concern about possible health problems at the New castle plant, Amoco retained Dr. Alfred Fishman of the University of Pennsylvania to conduct a medical survey at the New Castle plant, concentrating on possible pulmonary problems among the workers.  The medical survey consisted of a detailed medical questionnaire and a review of x-rays and the results of pulmonary function tests supplied by Amoco.

Dr. Fishman summarized the results of the study, referred to here as "the Penn study," in January 6, 1976, letter to Dr. Wolkonsky, the medical director of Standard Oil Company of Indiana, the parent company of Amoco:

In summary, we tested 220 subjects of whom 26 had abnormal pulmonary function tests.   Three of these abnormalities were suggestive of asbestosis.  On the other hand, seven patients showed evidence of asbestos exposure on chest x-ray independent of those with suggestive pulmonary function changes.

As a result of Penn study, Amoco employees Literal, Mulhern, Strickler, Koria, Putnam, Pearson and Kerr were restricted to areas where they would not be exposed to dust.  None of these work restrictions were recorded by Amoco.  The Secretary conceded at the hearing, however, that the Penn study alone did not furnish Amoco with enough information to conclude its employees had asbestosis.

Indeed, Dr. Fishman did not diagnose any Amoco employees as having asbestosis.   The purpose of the study was not to make any specific diagnoses, but to survey possible pulmonary problems at the New Castle plant.  Although Dr. Fishman stated that he suspected "very strongly" that the seven employees whose x-rays were consistent with asbestosis had asbestosis, [[4]] both Dr. Fishman and his associate in the study, Dr. Epstein, agreed that a biopsy would have been necessary for a definite diagnosis.  In any event, Amoco cautioned those employees who had abnormal x-rays and pulmonary functions to see personal physicians.  Amoco continued to monitor its employees' health by voluntarily conducting annual physical examinations, which included chest x-rays and pulmonary function tests. 

In late 1977, the Union engaged several doctors to conduct follow-up studies of the health problem at the New Castle plant.  These studies were conducted without Amoco's knowledge.

Dr. Ruth Lilis examined eleven Amoco employees sent to her by the Union at Mount Sinai Hospital between October and December of 1977.[[5]]  Dr. Lilis is an assistant professor teaching occupational and environmental medicine.  She has conducted research in occupational and environment medicine.  She has conducted research in occupational illnesses including studies of occupational asbestos exposure.  Dr. Lilis is also a certified B reader for x-rays for pneumoconiosis, the highest possible board certification.  There are only 60 such certified x-ray readers in the United States.

The Mount Sinai study seems to have been more thorough than the Penn study.  The Mount Sinai study included a complete occupational history, medical history, smoking history, alcohol intake history, history of present complaints, complete physical examination, chest x-ray, pulmonary function test, blood biochemistry and complete blood count.  As a result of these tests, Dr. Lilis diagnosed eight Amoco employees as having asbestosis.  The eight employees who Dr. Lilis Amoco employees as having asbestosis.  The eight employees who Dr. Lilis diagnosed were Renniger, Betts, Callaway, Kofron, Mulhern, Litteral, Stirckler and Camisky.  Although Dr. Lilis' study was not available to Amoco until the hearing, Dr Lilis testified that Amoco's annual physicals, which included chest x-rays and pulmonary function test, would have yielded similar results to her own if those tests were conducted reasonably close in time to her tests.

The Union also engages Dr. Lawrence Fine to review pulmonary function tests and chest x-rays of 10 Amoco employees.[[6]] Dr. Fine teaches courses in occupational medicine at Harvard School of Public Health.  At the time of the hearing he was developing a set of medical criteria for the "presumptive" diagnosis of asbestosis for the Department of Labor.  Dr. Fine was also a certified x-ray reader.  Dr. Fine was not told the source of the medical tests he reviewed but assumed that the pulmonary function information, which included smoking histories and some information about the employees' symptoms and x-rays, were supplied by the company.  From his review of the chest x-rays and the pulmonary function tests, Dr. Fine testified that Renniger, Callaway, Pearson and Kofron had conditions "consistent with" a diagnosis of asbestosis.  Dr. Fine also testified that Strickler and Litteral had conditions "suggestive of " asbestosis.[[7]]

Among the employees whom the various studies revealed suffered from the effects of asbestos exposure was Lewis Kofron.  Kofron had been exposed to asbestos from 1967 to 1972 while working in the resin department at New Castle.  The Penn study said that Kofron had  "heavy exposure" to asbestos while dumping material into bin.  The Penn study also noted that Kofron's x-ray revealed several small irregularities.[[8]]  Kofron was one of the Amoco employees diagnosed by Dr. Lilis and Dr. Fine in late 1977 as having asbestosis.

In September 1976, Dr. Olivere, a local radiologist hired by Amoco to perform and interpret x-ray on Amoco employees, detected a pleural effusion on Kofron's lung.  Dr. Olivere made similar interpretation in February 1977.  On both occasions, Dr. Olivere conveyed his findings to Dr. McGuire, the Amoco physician on duty at New Castle plant.[[9]]

A pleural effusion is a collection of fluid in the pleural space.  Medical testimony at hearing established that a pleural effusion can be benign but that it can also be a sign of lung cancer or mesothelioma.  Both the Secretary's and Amoco's experts agree that standard medical practice dictates that a pleural effusion be promptly diagnosed by performing a biopsy.  Dr. McGuire, who knew that Kofron was under care of a personal physician, did not tell Kofron about the pleural effusion.  Eventually, Kofron's doctor referred him to a thoracic surgeon who performed a thoracotomy upon him.[[10]]  This procedure revealed that the pleural effusion was benign.

Kofron missed several workdays as a result of this operation.  When Kofron returned to work after the operation, he was transferred to another section of the plant where he would not be exposed to dust or talc.  Amoco did not record in its OSHA this transfer or Kofron's lost workdays due to the operation.

The Secretary argues that Amoco should have recorded work restriction and lost workdays for eight employees during a six-month period from June 29,1977, to December 29, 1977.[[11]]  First, the Secretary argues that to establish a violation, he need show only that Amoco's employees lost workdays or were placed on work restrictions as a result of a work-related "condition."  The Secretary maintains that it is irrelevant what the employer calls the condition or whether the condition is diagnosed as a particular illness.  Whether the "condition" is asbestosis or pleural effusion, the Secretary argues, the employer must record it if it is occupationally-related and results in lost workdays or work restrictions.

Second, the Secretary argues that although Amoco had not received any reported diagnosis within the meaning of the last sentence of section 1904.12(c)(3), Amoco had sufficient medical information to diagnose several employees as having asbestosis.   In this regard, the Secretary notes that Dr. Fine diagnosed several Amoco employees as having conditions "consistent with" or "suggestive of" asbestosis from the results of chest x-rays and pulmonary function tests that Amoco had given to the employees as part of their annual physicals.  The Secretary also notes Dr. Lilis' testimony that Amoco should have diagnosed a number of employees as having asbestosis from the results of their annual physical examinations.  The Secretary claims that Amoco's retained physician, Dr. McGuire, had this information available to him and should have diagnosed the same employees as having asbestosis.

Amoco argues that an employer is required to record only those illnesses that have been diagnosed and reported to the employer.  It maintains that the last sentence of section 1904.12(c)(3) evinces the Secretary's intent to not require more of an employer.   Amoco notes that section 1904.2(a) does not impose upon an employer a duty to make a diagnosis of an illness.  Amoco reasons that the standard was instead intended to require employers to simply record information that had come to their attention and was not intended to impose on employers a duty to exercise medical judgment, a necessary step in the diagnosis of illness.  Amoco points out that the diagnoses' of asbestosis made by Drs. Lilis and Fine had not been reported to it when the alleged violations occurred, that the Penn study included no diagnosis of asbestosis from its employees' personal physicians.

Amoco also argues that even if the standard does require that employers make diagnoses', the judge erroneously found that it had enough information to diagnose asbestosis.  First, Amoco claims that the record does not reveal that Amoco had medical information that was available to Dr. Lilis and Dr. Fine.  Second, Amoco points to the testimony of several medical experts that a biopsy is necessary to make a positive diagnosis of asbestosis.  No biopsies were performed on the Amoco employees during any of the studies.

Discussion

  

It is undisputed that eight Amoco employees were restricted and one Amoco employee lost workdays at the New Castle workplace.  It is also undisputed that none of the incidents of work restrictions and lost workdays were recorded.  Such work restrictions and lost workdays are recordable under section 1904.12(c)(2) and (3) if the Secretary can establish that the employees were restricted and lost workdays as a result of occupationally-related illnesses.  Since expert testimony established that asbestosis is almost invariably occupationally-related, the questions raised here are whether the Amoco employees had asbestosis; whether the standard required Amoco to make a judgment about whether the employees had asbestosis; and if so, whether Amoco should have determined that they did.[[12]]

Before we discuss these questions, however, we address the Secretary's argument that he is required only to establish that the employees were suffering from an occupationally-related "condition."  The recording standard very specifically states that an employer must record "occupationally-related injuries and illnesses."  (Emphasis added.)  The question here, then, is whether Amoco employees were proven on this record to have had "illnesses" or "injuries."  Although the Secretary argues that Kofron's pleural effusion was recordable because he lost workdays due to diagnostic testing to determine whether it was malignant or benign, the evidence does not show that a pleural effusion is in and of itself an illness.  Here, the record is limited because the Secretary did not even attempt to show at the hearing or argue in his post-hearing brief that a pleural effusion is an illness; instead the Secretary introduced this argument for the first time in his supplemental brief to the Commission.  According to the record, a pleural effusion may be either malignant or benign and a pleural effusion diagnosed as being benign apparently requires no medical care and is eventually absorbed.  There is no evidence that the presence of a benign pleural effusion is harmful in an of itself because, for example, it impairs an employee's ability to breathe.  Although we are not entirely comfortable with finding that a pleural effusion was not shown to be an illness, we are not physicians, and our determination that a condition constitutes an illness is dependent on the medical evidence in the record.  Since the record does not establish that a pleural effusion is an illness, we cannot say that Amoco was obligated to record it.

Turning to the eight Amoco employees whose work restrictions the Secretary argues should have been recorded.  It bears emphasis that when Amoco had only the Penn study and the diagnoses' of Drs. Lilis and Fine or the information developed during their studies.  Moreover, the Secretary conceded at the hearing that the Penn study alone did not furnish enough information to warrant conclusion that the employees it covered had asbestosis.

There was no evidence that one employee, Putnam, had asbestosis.  Putnam was examined by Dr. Lilis, who with more information than Amoco had, declared Putnam not to have asbestosis.  The Secretary presented no other evidence concerning Putnam's condition.  Therefore, the portion of item 1 concerning Putnam is vacated.

Concerning the remaining seven Amoco employees, we cannot say on this record that Amoco's judgment that these employees did not have asbestosis was, at the time Amoco made the judgment, unreasonable.  We do not reach the question of whether the recording standard requires an employer to make a judgment that an employee had an illness.   Even if the standard places an obligation upon the employer to make such a medical judgment, the Secretary has not established that Amoco should have made such a judgment here.

Drs. Lilis and Fine specifically disagreed about whether two Amoco employees, Betts and Mulhern, had asbestosis.  Dr. Lilis diagnosed them as having asbestosis while Dr. Fine said they did not have the illness.[[13]]  Two other Amoco employees, Litteral and Strickler, had confounding medical histories that made it unclear whether the employees had asbestosis.  Both of them had had incidents of pleurisy, which Dr. Fine testified was among the infections of the pleural space that could cause pleural thickening similar to asbestosis.  Dr. Fine testified that Litteral's and Strickler's conditions were merely "suggestive of" asbestosis.  While Dr. Lilis diagnosed both Litteral and Strickler as having asbestosis.  While Dr, Lilis diagnosed both Litteral and Strickler as having asbestosis, she also testified that a colleague of hers at Mount Sinai was of the opinion that Litteral did not have asbestosis.

These differing diagnoses not only cast serious doubt on whether these four employees had asbestosis but also underscore the fact that even for experts in occupational health, such as Drs. Lilis and Fine both diagnosed asbestosis in Callway and Kofron, and Dr. Fine testified that Pearson, whom Dr. Lilis did not examine, had asbestosis.  However, the record indicates that even for these employees the disease was still in its early stages, when diagnosis is difficult.  The pulmonary function tests for these employees were not worse, and in some cases were better, than for employees not diagnosed as having asbestosis.  Essentially, the critical factor distinguishing these three employees from the others was the presence of somewhat greater irregularities in their chest x-rays.[[14]]

Drs. Lilis and Fine, however, were certified x-ray readers and were uniquely qualified to diagnose asbestosis based on the types of irregularities present in the x-rays of Callaway, Kofron, and Pearson.  Dr. McGuire did not possess similar expertise.   Indeed, Dr. McGuire that Kofron had a pleural effusion.  But there is no evidence that Dr. McGuire was informed of abnormalities on any of the x-rays that were suggestive of asbestosis.  Nor is there any evidence that the x-ray abnormalities were so striking that any reasonable radiologist or general practitioner would have reached such a diagnosis.

To find Amoco in violation of the recording standard on these facts would mean that every employer must exercise the same medical judgment as the best qualified experts in the nation.  We cannot interpret the standard to require such a result, which finds no support in either its language or its brief legislative history.  See 36 Fed. Reg. 12612 (July 2, 1971).  In the absence of a clear indication of what kind of medical review the standard requires, the standard cannot be read to require an employer to do more than make a reasonable judgment based on the information and expertise available to it.  The Secretary showed that Dr. McGuire's medical judgment differed from that of the acknowledged experts the Secretary used to second-guess him, but did not show that Dr. McGuire's judgment was unreasonable based on his experience and expertise and on the information available to him.  Item 1 of the citation is therefore vacated.

Item 2: Section 5(a)(1), Failure to Inform Employee of Serious Condition

Item 2 of the citation  alleged that contrary to section 5(a)(1) of the Act, "[a]n employee was required to work, after the employer's diagnosis of a serious medical condition (pleural effusion), under conditions which were likely to cause death or serious physical harm."[[15]]  At the hearing, the Secretary argued that Amoco had failed to inform employee Kofron of a potentially malignant condition on his lung after Dr. Olivere had informed Dr. McGuire of the condition.

Judge Usher affirmed the item on the ground that Amoco knew of Kofron's possibly serious condition but did not tell him and therefore "squandered Kofron;s chances for early detection of cancer."  We reverse.

The Secretary claims that there are two grounds upon which to find a violation of section 5(a)(1).  First, the Secretary contends that Kofron was exposed to possible polypropylene dust from the time the pleural effusion was detected to the time it was removed.  Second, the Secretary claims that Amoco's failure to inform Kofron of his potentially dangerous condition exposed him to the possibility that, if the pleural effusion was malignant and not treated immediately, the disease could prove fatal.

In order to establish a section 5(a)(1) violation, the Secretary must prove that: (1) the employer failed to render its workplace free of a hazard, (2) the hazard was recognized either by the cited employer or generally within the employer's industry, (3) the hazard was causing or was likely to cause death or serious physical harm, and (4) there was a feasible means by which the employer could have eliminated or materially reduced the hazard.  See, e.g., National Realty & Construction Co. v. OSHRC, 489 F.2d 1257 (D.C. Cir. 1973).  Concerning the Secretary's claim that Kofron was exposed to polypropylene dust, the record does not indicate what effect, if any, such dust would have had on Kofron's condition.  Thus, the Secretary has not shown that a hazard from polypropylene dust existed at the Amoco plant.  Accordingly, this aspect of the citation item must be vacated.

The Secretary's second 5(a)(1) contention must also be dismissed.  The Secretary argues that "the primary hazardous condition was the passage of time during which the disease progressed."  The question before the Commission is, therefore, whether the passage of time is an "occupational hazard" under the general duty clause.   In American Cyanamid Co., 81 OSAHRC 1/B4, 9 BNA OSHC 1596 1981 CCH OSHD (p) 25,338 (No. 76-5792, 1981), aff'd 741 F.2d 444 (D.C. Cir. 1984), the Commission held that an employer's fetus protection plan that excluded any women from 16 to 50 years of age from production jobs in the lead pigments department unless they had been sterilized, was not a hazard cognizable under section 5(a)(1) of the Act.  The Commission analyzed the legislative history of the Act and concluded the "Congress conceived of occupational hazards in terms of processes and materials which cause injury or disease by operating directly upon employees as they engage in work or work-related activities."  9 BNA OSHC at 1600, 1981 CCH OSHD at p. 31,431.[[16]]

Under this definition, the passage of time during which Kofron's condition went untreated is not a hazard cognizable under the general duty clause of the Act.  The passage of time is not a process or material which operates directly upon an employee as he works at his job.  In this regard, it is important to note that the "hazard" as defined by the Secretary would have occurred to Kofron whether he was working at Amoco or not.

This is not to say that the Secretary may not adopt a standard requiring an employer to disclose medical information directly to its employees.  Our decision pertains only to the employer's obligation under the general duty clause.  Indeed with regard to employers using asbestos, the Secretary has addressed the employer's obligation to provide medical information.  In 1977, a provision of the asbestos standard, 1910.1001(j)(6)(ii), required only that records of required medical examinations:

...be made available, for inspection and copying, to the Assistant Secretary of Labor for Occupational Safety and Health, the Director of NIOSH, to authorized physicians and medical consultants of either of them, and, upon the request of an employee or former employee, to his physician.

(Emphasis added).

There was no requirement to make records available for copying to employees, nor any requirement to bring information to the attention of an employee's physician if the physician did not take the initiative to inspect and copy the records.  Even when this section was amended in 1980, it gave employees access to their medical records but only "upon request."[[17]] 45 Fed. Reg. 35281 (1980).  We cannot find an employer in violation of the general duty clause for not having done more than required by a specifically applicable standard.

We are troubled by Amoco's failure to inform Kofron, or at least Kofron's private physician, of the discovery of the pleural effusion.  While the record does not establish that a pleural effusion is an illness in and of itself, both the Secretary's and Amoco's experts testified that standard medical practices dictate that a pleural effusion be promptly diagnosed to determine whether the effusion is a symptom of mesothelioma or lung cancer.  But we cannot say that its inaction violated the general duty clause of the Occupational Safety and Health Act.

The judge's decision is reversed.  Item 1 and 2 of the citation are vacated.

FOR THE COMMISSION

Ray H. Darling, Jr.

Executive Secretary

DATED: June 19, 1986


The Administrative Law Judge decision in this matter is unavailable in this format. To obtain a copy of this document, please request one from our Public Information Office by e-mail ( lwhitsett@oshrc.gov ), telephone (202-606-5398), fax (202-606-5050), or TTY (202-606-5386).



FOOTNOTES:

[[1]]Although "injury," "illness" and "occupational" are not defined, "recordable" is indirectly defined.  Section 1904.12(c) defines "recordable occupational injuries or illnesses" as "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.

[[2]]Two expert witnesses testified at the hearing that there is no medically significant difference between the terms "asbestosis" and "asbestos disease."  Therefore, we will read the citation as alleging that Amoco failed to record instances of asbestosis.

[[3]]Exposure to asbestos has also been linked to increased incidence of lung cancer and mesothelioma, a cancer of the lung's lining.

[[4]]Seven Amoco employees exhibited some bilateral pleural thickening, which one of the Secretary's medical experts testified is indicative of asbestosis.  However, is is not clear from the record whether the seven employees with bilateral pleural thickening were the same employees as the seven employees named in Dr. Fishman's letter who "showed evidence of asbestos exposure on their chest x-ray...."

[[5]]The eleven employees examined by Dr. Lilis were Renniger, Betts, Callaway, Kofron, Mulhern, Litteral, Strickler, Camisky, Sutton, Putnam and Verdensky.

[[6]]The ten employees whose records Dr. Fine reviewed were Renniger, Callaway, Strickler, Kofron, Pearson, Litteral, Camisky, Betts, Sutton and Mulhern.

[[7]]Dr. James Keogh, another physician consulted by the Union, reviewed the results of the Penn study for 92 Amoco employees and concluded that there was a large number of abnormalities in the workplace population.  Dr. Keogh's survey was not available to Amoco before the hearing.

[[8]]In a letter to Dr. Wolkonsky, Dr. Fishman described Kofron's condition as: "Right costophrenic sulcus blunting.  This man works as a laborer in the filled resin department.  He has had heavy exposure to asbestos while dumping material into the bin since 1967.  He has no other occupational or medical history which would explain his findings."

[[9]]Dr. McGuire had been a practicing physician since 1933.  He had worker at the New Castle plant since it opened in 1961.  At the time pertinent to this case, he worked for Amoco an average of ten hours per week.  His duties included performing pre-employment and annual physical examinations on employees and being available to treat workers injured in on-the-job accidents. Dr. McGuire was responsible for deciding what information should be recorded in the OSHA log and summary of occupational injuries and illnesses.

[[10]]A thoracotomy is an operation where the patient's pleura is exposed by resectioning the ribs.  The fluid of the pleural effusion is withdrawn for diagnostic purposes.   When, as in this case, the pleural effusion is determined to be benign nothing more is done.  The pleural effusion is eventually absorbed.

[[11]]Many of the work restrictions began but continued through this six-month period.   We express no opinion on Amoco's argument that the six-month limitations period in section 9(c) of the Act requires that the item be vacated as to employees affected by those work restrictions.

[[12]]In General Motors Corp. (Inland Division), 80 OSAHRC 85/A2, 8 BNA OSHC 2036, 1980 CCH OSHD (p) 24,743 (No. 76-5033, 1980), the Commission found that General Motors was required to record three instances of lost workdays due to respiratory illnesses.  In General Motors, there was no doubt that the employees were suffering from an illness.  The question considered there was whether the illnesses were occupationally-related.  Therefore, General Motors did not address the question of what is considered an "illness" under the recording standard and is not controlling on the question currently before us.

[[13]]In addition to the conflicting diagnoses' concerning Betts, there was testimony that Betts was restricted to areas without dust because he had one eye and not because he had any occupationally-related illness.  Testimony indicated that if Betts was required to wear a face mask or some similar personal protective equipment his vision would be severely hampered.

[[14]]The record indicates that an abnormal pulmonary function test alone does not suggest a diagnosis of asbestosis.  For example, the pulmonary function test of Mulhern was considerably worse than those of Callway, Kofron, and Pearson.  Dr. Fine, however, thought that the latter three employees had asbestosis while Mulhern did not.   He noted that Mulhern's chest x-ray was not abnormal and concluded that the pulmonary function abnormalities could therefore not be attributed to asbestosis.   Moreover, the report from the Penn study said that of 26 employees with abnormal pulmonary function tests, 3 were suggestive of asbestosis.  This indicates that the vast majority of pulmonary function abnormalities are attributable to causes other than asbestosis.

[[15]]Section 5(a)(1), 29 U.S.C. 654(a)(1), provides:

Sec. 5(a)(1) Each employer--

(a) shall furnish each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.

[[16]]The Court of Appeals for the District of Columbia Circuit quoted this language with approval.  741 F.2d at 449.

[[17]]Nothing in our discussion intimates any view on any duty that Amoco or the physician may have had to Kofron under other federal law or regulations, or access to medical records, and its preamble, which discusses the obligations of employer-selected physicians to employees under state law.  45 Fed. Reg. 35212 at p. 35231 (1980).