“SECRETARY OF LABOR,Complainant,v.AMOCO CHEMICAL CORPORATION,Respondent.OIL, CHEMICAL AND ATOMIC WORKERSINTERNATIONAL UNION and itsLOCAL 8–732,OSHRC Docket Nos.78-0248, 78-0250AuthorizedEmployee Representative._Decision_Before: BUCKLEY, Chairman; RADER and Wall, Commissioner.BY THE COMMISSION:This case is before the Occupational Safety and Health Review Commissionunder 29 U.S.C. ?661(j), section 12(j) of the Occupational Safety andHealth Act of 1970, 29 U.S.C. ??651-678 (\”the Act\”). The Commission isan adjudicatory agency, independent of the Department of Labor and theOccupational Safety and Health Administration (\”OSHA\”). It wasestablished to resolve disputes arising out of enforcement actionsbrought by the Secretary of Labor under the Act and has no regulatoryfunctions. See section 10(c) of the Act, 29 U.S.C. ?659(c).Administrative Law Judge Benjamin Usher affirmed an item of a citationissued by the Secretary alleging that, contrary to 29 C.F.R. ?1904.2(a),Amoco Chemical Corporation had failed to record certain occupationalillnesses. The judge also affirmed a citation item alleging that Amocoviolated section 5(a)(1) of the Act because it failed to inform one ofits employees, Lewis Kofron, of a potentially malignant condition in hislung. The judge characterized both violations as \”willful\” and assessedpenalties of $10,000 for each violation. Amoco filed a petition fordiscretionary review, which was granted. We reverse Judge Usher’sdecision 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\/asbestosdisease) 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 thissection, (1) maintain in each establishment a log and summary of allrecordable occupational injuries and illnesses for that establishment;and (2) enter each recordable injury and illness on the log and summaryas early as practicable but no later than 6 working days after receivinginformation that a recordable injury or illness has occurred. For thispurpose form OSHA No. 200 or an equivalent which is as readable andcomprehensible to a person not familiar with it shall be used. The logand summary shall be completed in the detail provided in the form andinstructions 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]] Ourdecision focuses on t he first element of the employer’s duty–that ofsertaining that an employee has an \”illness\” within the meaning of thestandard. Although the Secretary’s citation and complaint alleged that asbestosiswas not recorded, they did not state the names of the employees whoseillnesses Amoco failed to record. At the outset of the hearing,however, the Secretary read into the record a stipulation that the workactivities of eight named employees were restricted. The employees wereLiteral, Mulhern, Strickler, Putnam, Pearson, Betts, Callaway andKofron. The Secretary also established that Kofron had lost workdays. The Secretary alleged that Amoco should have recorded these workrestrictions and lost workdays because they resulted from anoccupational illness–asbestosis.[[2]] Judge Usher affirmed thecitation item, finding that Amoco’s physician had all the informationnecessary 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 fromanother company in 1968. When Amoco took over the plant, it continuedthe processes the prior owner was using, which involved the use ofasbestos. In 1972, Amoco discontinued the use of asbestos andsubstituted 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, themost common of which is asbestosis.[[3]] With asbestosis, the lining ofthe 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 ifexposure to asbestos has ceased.The most common symptom of asbestosis is shortness of breath, sometimesaccompanied by a persistent cough. In its early stages, asbestosis isdifficult to distinguish from other pulmonary conditions, however. Inthe later stages of the illness, a person may have calcification of thepleura, clubbing of the hands or crackling sound in his chest, calledrales. In addition to these symptoms, asbestosis commonly exhibitsitself in abnormal chest x-rays and abnormal results of pulmonaryfunction tests. The hardening of the pleura appears as opaque or\”shaggy\” areas on the x-ray of the lung. The hardening of pleura causesdiminished lung capacity, that is, the inability to expel a normalamount of air from the lungs. This diminished capacity can detected bya pulmonary function test.Because of Amoco’s and the Oil, Chemical Atomic Workers InternationalUnion’s concern about possible health problems at the New castle plant,Amoco retained Dr. Alfred Fishman of the University of Pennsylvania toconduct a medical survey at the New Castle plant, concentrating onpossible pulmonary problems among the workers. The medical surveyconsisted of a detailed medical questionnaire and a review of x-rays andthe 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, themedical director of Standard Oil Company of Indiana, the parent companyof Amoco:In summary, we tested 220 subjects of whom 26 had abnormal pulmonaryfunction tests. Three of these abnormalities were suggestive ofasbestosis. On the other hand, seven patients showed evidence ofasbestos exposure on chest x-ray independent of those with suggestivepulmonary function changes.As a result of Penn study, Amoco employees Literal, Mulhern, Strickler,Koria, Putnam, Pearson and Kerr were restricted to areas where theywould not be exposed to dust. None of these work restrictions wererecorded by Amoco. The Secretary conceded at the hearing, however, thatthe Penn study alone did not furnish Amoco with enough information toconclude its employees had asbestosis.Indeed, Dr. Fishman did not diagnose any Amoco employees as havingasbestosis. The purpose of the study was not to make any specificdiagnoses, but to survey possible pulmonary problems at the New Castleplant. Although Dr. Fishman stated that he suspected \”very strongly\”that the seven employees whose x-rays were consistent with asbestosishad asbestosis, [[4]] both Dr. Fishman and his associate in the study,Dr. Epstein, agreed that a biopsy would have been necessary for adefinite diagnosis. In any event, Amoco cautioned those employees whohad abnormal x-rays and pulmonary functions to see personal physicians. Amoco continued to monitor its employees’ health by voluntarilyconducting annual physical examinations, which included chest x-rays andpulmonary function tests. In late 1977, the Union engaged several doctors to conduct follow-upstudies of the health problem at the New Castle plant. These studieswere conducted without Amoco’s knowledge.Dr. Ruth Lilis examined eleven Amoco employees sent to her by the Unionat Mount Sinai Hospital between October and December of 1977.[[5]] Dr.Lilis is an assistant professor teaching occupational and environmentalmedicine. She has conducted research in occupational and environmentmedicine. She has conducted research in occupational illnessesincluding studies of occupational asbestos exposure. Dr. Lilis is alsoa certified B reader for x-rays for pneumoconiosis, the highest possibleboard certification. There are only 60 such certified x-ray readers inthe United States.The Mount Sinai study seems to have been more thorough than the Pennstudy. The Mount Sinai study included a complete occupational history,medical history, smoking history, alcohol intake history, history ofpresent 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 ashaving asbestosis. The eight employees who Dr. Lilis Amoco employees ashaving asbestosis. The eight employees who Dr. Lilis diagnosed wereRenniger, Betts, Callaway, Kofron, Mulhern, Litteral, Stirckler andCamisky. Although Dr. Lilis’ study was not available to Amoco until thehearing, Dr Lilis testified that Amoco’s annual physicals, whichincluded chest x-rays and pulmonary function test, would have yieldedsimilar results to her own if those tests were conducted reasonablyclose in time to her tests.The Union also engages Dr. Lawrence Fine to review pulmonary functiontests and chest x-rays of 10 Amoco employees.[[6]] Dr. Fine teachescourses in occupational medicine at Harvard School of Public Health. Atthe time of the hearing he was developing a set of medical criteria forthe \”presumptive\” diagnosis of asbestosis for the Department of Labor. Dr. Fine was also a certified x-ray reader. Dr. Fine was not told thesource of the medical tests he reviewed but assumed that the pulmonaryfunction information, which included smoking histories and someinformation about the employees’ symptoms and x-rays, were supplied bythe company. From his review of the chest x-rays and the pulmonaryfunction tests, Dr. Fine testified that Renniger, Callaway, Pearson andKofron 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 theeffects of asbestos exposure was Lewis Kofron. Kofron had been exposedto asbestos from 1967 to 1972 while working in the resin department atNew Castle. The Penn study said that Kofron had \”heavy exposure\” toasbestos while dumping material into bin. The Penn study also notedthat Kofron’s x-ray revealed several small irregularities.[[8]] Kofronwas one of the Amoco employees diagnosed by Dr. Lilis and Dr. Fine inlate 1977 as having asbestosis.In September 1976, Dr. Olivere, a local radiologist hired by Amoco toperform and interpret x-ray on Amoco employees, detected a pleuraleffusion on Kofron’s lung. Dr. Olivere made similar interpretation inFebruary 1977. On both occasions, Dr. Olivere conveyed his findings toDr. 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 bebenign but that it can also be a sign of lung cancer or mesothelioma. Both the Secretary’s and Amoco’s experts agree that standard medicalpractice dictates that a pleural effusion be promptly diagnosed byperforming a biopsy. Dr. McGuire, who knew that Kofron was under careof a personal physician, did not tell Kofron about the pleuraleffusion. Eventually, Kofron’s doctor referred him to a thoracicsurgeon who performed a thoracotomy upon him.[[10]] This procedurerevealed that the pleural effusion was benign.Kofron missed several workdays as a result of this operation. WhenKofron returned to work after the operation, he was transferred toanother section of the plant where he would not be exposed to dust ortalc. Amoco did not record in its OSHA this transfer or Kofron’s lostworkdays due to the operation.The Secretary argues that Amoco should have recorded work restrictionand lost workdays for eight employees during a six-month period fromJune 29,1977, to December 29, 1977.[[11]] First, the Secretary arguesthat to establish a violation, he need show only that Amoco’s employeeslost workdays or were placed on work restrictions as a result of awork-related \”condition.\” The Secretary maintains that it is irrelevantwhat the employer calls the condition or whether the condition isdiagnosed as a particular illness. Whether the \”condition\” isasbestosis or pleural effusion, the Secretary argues, the employer mustrecord it if it is occupationally-related and results in lost workdaysor work restrictions.Second, the Secretary argues that although Amoco had not received anyreported diagnosis within the meaning of the last sentence of section1904.12(c)(3), Amoco had sufficient medical information to diagnoseseveral employees as having asbestosis. In this regard, the Secretarynotes that Dr. Fine diagnosed several Amoco employees as havingconditions \”consistent with\” or \”suggestive of\” asbestosis from theresults of chest x-rays and pulmonary function tests that Amoco hadgiven to the employees as part of their annual physicals. The Secretaryalso notes Dr. Lilis’ testimony that Amoco should have diagnosed anumber of employees as having asbestosis from the results of theirannual physical examinations. The Secretary claims that Amoco’sretained physician, Dr. McGuire, had this information available to himand should have diagnosed the same employees as having asbestosis.Amoco argues that an employer is required to record only those illnessesthat have been diagnosed and reported to the employer. It maintainsthat the last sentence of section 1904.12(c)(3) evinces the Secretary’sintent to not require more of an employer. Amoco notes that section1904.2(a) does not impose upon an employer a duty to make a diagnosis ofan illness. Amoco reasons that the standard was instead intended torequire employers to simply record information that had come to theirattention and was not intended to impose on employers a duty to exercisemedical judgment, a necessary step in the diagnosis of illness. Amocopoints out that the diagnoses’ of asbestosis made by Drs. Lilis and Finehad not been reported to it when the alleged violations occurred, thatthe Penn study included no diagnosis of asbestosis from its employees’personal physicians.Amoco also argues that even if the standard does require that employersmake diagnoses’, the judge erroneously found that it had enoughinformation to diagnose asbestosis. First, Amoco claims that the recorddoes not reveal that Amoco had medical information that was available toDr. Lilis and Dr. Fine. Second, Amoco points to the testimony ofseveral medical experts that a biopsy is necessary to make a positivediagnosis of asbestosis. No biopsies were performed on the Amocoemployees during any of the studies._Discussion_ It is undisputed that eight Amoco employees were restricted and oneAmoco employee lost workdays at the New Castle workplace. It is alsoundisputed that none of the incidents of work restrictions and lostworkdays were recorded. Such work restrictions and lost workdays arerecordable under section 1904.12(c)(2) and (3) if the Secretary canestablish that the employees were restricted and lost workdays as aresult of occupationally-related illnesses. Since expert testimonyestablished that asbestosis is almost invariably occupationally-related,the questions raised here are whether the Amoco employees hadasbestosis; whether the standard required Amoco to make a judgment aboutwhether the employees had asbestosis; and if so, whether Amoco shouldhave determined that they did.[[12]]Before we discuss these questions, however, we address the Secretary’sargument that he is required only to establish that the employees weresuffering from an occupationally-related \”condition.\” The recordingstandard 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 thisrecord to have had \”illnesses\” or \”injuries.\” Although the Secretaryargues that Kofron’s pleural effusion was recordable because he lostworkdays due to diagnostic testing to determine whether it was malignantor benign, the evidence does not show that a pleural effusion is in andof itself an illness. Here, the record is limited because the Secretarydid not even attempt to show at the hearing or argue in his post-hearingbrief that a pleural effusion is an illness; instead the Secretaryintroduced this argument for the first time in his supplemental brief tothe Commission. According to the record, a pleural effusion may beeither malignant or benign and a pleural effusion diagnosed as beingbenign apparently requires no medical care and is eventually absorbed. There is no evidence that the presence of a benign pleural effusion isharmful in an of itself because, for example, it impairs an employee’sability to breathe. Although we are not entirely comfortable withfinding that a pleural effusion was not shown to be an illness, we arenot physicians, and our determination that a condition constitutes anillness is dependent on the medical evidence in the record. Since therecord does not establish that a pleural effusion is an illness, wecannot say that Amoco was obligated to record it.Turning to the eight Amoco employees whose work restrictions theSecretary argues should have been recorded. It bears emphasis that whenAmoco had only the Penn study and the diagnoses’ of Drs. Lilis and Fineor the information developed during their studies. Moreover, theSecretary conceded at the hearing that the Penn study alone did notfurnish enough information to warrant conclusion that the employees itcovered had asbestosis.There was no evidence that one employee, Putnam, had asbestosis. Putnamwas examined by Dr. Lilis, who with more information than Amoco had,declared Putnam not to have asbestosis. The Secretary presented noother evidence concerning Putnam’s condition. Therefore, the portion ofitem 1 concerning Putnam is vacated.Concerning the remaining seven Amoco employees, we cannot say on thisrecord that Amoco’s judgment that these employees did not haveasbestosis was, at the time Amoco made the judgment, unreasonable. Wedo not reach the question of whether the recording standard requires anemployer to make a judgment that an employee had an illness. Even ifthe standard places an obligation upon the employer to make such amedical judgment, the Secretary has not established that Amoco shouldhave made such a judgment here.Drs. Lilis and Fine specifically disagreed about whether two Amocoemployees, Betts and Mulhern, had asbestosis. Dr. Lilis diagnosed themas having asbestosis while Dr. Fine said they did not have theillness.[[13]] Two other Amoco employees, Litteral and Strickler, hadconfounding medical histories that made it unclear whether the employeeshad asbestosis. Both of them had had incidents of pleurisy, which Dr.Fine testified was among the infections of the pleural space that couldcause pleural thickening similar to asbestosis. Dr. Fine testified thatLitteral’s and Strickler’s conditions were merely \”suggestive of\”asbestosis. While Dr. Lilis diagnosed both Litteral and Strickler ashaving asbestosis. While Dr, Lilis diagnosed both Litteral andStrickler as having asbestosis, she also testified that a colleague ofhers at Mount Sinai was of the opinion that Litteral did not haveasbestosis.These differing diagnoses not only cast serious doubt on whether thesefour employees had asbestosis but also underscore the fact that even forexperts in occupational health, such as Drs. Lilis and Fine bothdiagnosed asbestosis in Callway and Kofron, and Dr. Fine testified thatPearson, whom Dr. Lilis did not examine, had asbestosis. However, therecord indicates that even for these employees the disease was still inits early stages, when diagnosis is difficult. The pulmonary functiontests for these employees were not worse, and in some cases were better,than for employees not diagnosed as having asbestosis. Essentially, thecritical factor distinguishing these three employees from the others wasthe presence of somewhat greater irregularities in their chest x-rays.[[14]]Drs. Lilis and Fine, however, were certified x-ray readers and wereuniquely qualified to diagnose asbestosis based on the types ofirregularities present in the x-rays of Callaway, Kofron, and Pearson. Dr. McGuire did not possess similar expertise. Indeed, Dr. McGuirethat Kofron had a pleural effusion. But there is no evidence that Dr.McGuire was informed of abnormalities on any of the x-rays that weresuggestive of asbestosis. Nor is there any evidence that the x-rayabnormalities were so striking that any reasonable radiologist orgeneral practitioner would have reached such a diagnosis.To find Amoco in violation of the recording standard on these factswould mean that every employer must exercise the same medical judgmentas the best qualified experts in the nation. We cannot interpret thestandard to require such a result, which finds no support in either itslanguage or its brief legislative history. See 36 Fed. Reg. 12612 (July2, 1971). In the absence of a clear indication of what kind of medicalreview the standard requires, the standard cannot be read to require anemployer to do more than make a reasonable judgment based on theinformation and expertise available to it. The Secretary showed thatDr. McGuire’s medical judgment differed from that of the acknowledgedexperts the Secretary used to second-guess him, but did not show thatDr. McGuire’s judgment was unreasonable based on his experience andexpertise and on the information available to him. Item 1 of thecitation 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 theAct, \”[a]n employee was required to work, after the employer’s diagnosisof a serious medical condition (pleural effusion), under conditionswhich were likely to cause death or serious physical harm.\”[[15]] Atthe hearing, the Secretary argued that Amoco had failed to informemployee Kofron of a potentially malignant condition on his lung afterDr. Olivere had informed Dr. McGuire of the condition.Judge Usher affirmed the item on the ground that Amoco knew of Kofron’spossibly 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 aviolation of section 5(a)(1). First, the Secretary contends that Kofronwas exposed to possible polypropylene dust from the time the pleuraleffusion was detected to the time it was removed. Second, the Secretaryclaims that Amoco’s failure to inform Kofron of his potentiallydangerous condition exposed him to the possibility that, if the pleuraleffusion was malignant and not treated immediately, the disease couldprove fatal.In order to establish a section 5(a)(1) violation, the Secretary mustprove that: (1) the employer failed to render its workplace free of ahazard, (2) the hazard was recognized either by the cited employer orgenerally within the employer’s industry, (3) the hazard was causing orwas likely to cause death or serious physical harm, and (4) there was afeasible means by which the employer could have eliminated or materiallyreduced the hazard. _See_, _e.g_., _National Realty & Construction Co.v. OSHRC_, 489 F.2d 1257 (D.C. Cir. 1973). Concerning the Secretary’sclaim that Kofron was exposed to polypropylene dust, the record does notindicate what effect, if any, such dust would have had on Kofron’scondition. Thus, the Secretary has not shown that a hazard frompolypropylene dust existed at the Amoco plant. Accordingly, this aspectof the citation item must be vacated.The Secretary’s second 5(a)(1) contention must also be dismissed. TheSecretary argues that \”the primary hazardous condition was the passageof time during which the disease progressed.\” The question before theCommission is, therefore, whether the passage of time is an\”occupational hazard\” under the general duty clause. In _AmericanCyanamid 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), theCommission held that an employer’s fetus protection plan that excludedany women from 16 to 50 years of age from production jobs in the leadpigments department unless they had been sterilized, was not a hazardcognizable under section 5(a)(1) of the Act. The Commission analyzedthe legislative history of the Act and concluded the \”Congress conceivedof occupational hazards in terms of processes and materials which causeinjury or disease by operating directly upon employees as they engage inwork or work-related activities.\” 9 BNA OSHC at 1600, 1981 CCH OSHD atp. 31,431.[[16]]Under this definition, the passage of time during which Kofron’scondition went untreated is not a hazard cognizable under the generalduty clause of the Act. The passage of time is not a process ormaterial which operates directly upon an employee as he works at hisjob. In this regard, it is important to note that the \”hazard\” asdefined by the Secretary would have occurred to Kofron whether he wasworking at Amoco or not.This is not to say that the Secretary may not adopt a standard requiringan employer to disclose medical information directly to its employees. Our decision pertains only to the employer’s obligation under thegeneral duty clause. Indeed with regard to employers using asbestos,the Secretary has addressed the employer’s obligation to provide medicalinformation. In 1977, a provision of the asbestos standard,1910.1001(j)(6)(ii), required only that records of required medicalexaminations:…be _made available_, _for inspection and copying_, to the AssistantSecretary of Labor for Occupational Safety and Health, the Director ofNIOSH, to authorized physicians and medical consultants of either ofthem, and, _upon_ the _request_ of an employee or former employee, tohis physician.(Emphasis added).There was no requirement to make records available for copying toemployees, nor any requirement to bring information to the attention ofan employee’s physician if the physician did not take the initiative toinspect and copy the records. Even when this section was amended in1980, it gave employees access to their medical records but only \”uponrequest.\”[[17]] 45 Fed. Reg. 35281 (1980). We cannot find an employerin violation of the general duty clause for not having done more thanrequired by a specifically applicable standard.We are troubled by Amoco’s failure to inform Kofron, or at leastKofron’s private physician, of the discovery of the pleural effusion. While the record does not establish that a pleural effusion is anillness in and of itself, both the Secretary’s and Amoco’s expertstestified that standard medical practices dictate that a pleuraleffusion be promptly diagnosed to determine whether the effusion is asymptom of mesothelioma or lung cancer. But we cannot say that itsinaction violated the general duty clause of the Occupational Safety andHealth Act.The judge’s decision is reversed. Item 1 and 2 of the citation are vacated.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED: June 19, 1986————————————————————————The Administrative Law Judge decision in this matter is unavailable inthis format. To obtain a copy of this document, please request one fromour Public Information Office by e-mail ( [email protected] ), 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 \”occupationalinjuries or illnesses which result in\”:(1) Fatalities, regardless of the time between the injury and death, orthe length of the illness; or(2) Lost workday cases, other than fatalities, that result in lostworkdays; or(3) Nonfatal cases without lost workdays which result in transfer toanother job or termination of employment, or require medical treatment(other than first aid) or involve: loss of consciousness or restrictionof work or motion, This category also includes any diagnosedoccupational illnesses which are reported to the employer but are notclassified as fatalities or lost workday cases.[[2]]Two expert witnesses testified at the hearing that there is nomedically significant difference between the terms \”asbestosis\” and\”asbestos disease.\” Therefore, we will read the citation as allegingthat Amoco failed to record instances of asbestosis.[[3]]Exposure to asbestos has also been linked to increased incidence oflung 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 ofasbestosis. However, is is not clear from the record whether the sevenemployees with bilateral pleural thickening were the same employees asthe seven employees named in Dr. Fishman’s letter who \”showed evidenceof 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, Putnamand Verdensky.[[6]]The ten employees whose records Dr. Fine reviewed were Renniger,Callaway, Strickler, Kofron, Pearson, Litteral, Camisky, Betts, Suttonand Mulhern.[[7]]Dr. James Keogh, another physician consulted by the Union, reviewedthe results of the Penn study for 92 Amoco employees and concluded thatthere 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’scondition as: \”Right costophrenic sulcus blunting. This man works as alaborer in the filled resin department. He has had heavy exposure toasbestos while dumping material into the bin since 1967. He has noother occupational or medical history which would explain his findings.\”[[9]]Dr. McGuire had been a practicing physician since 1933. He hadworker at the New Castle plant since it opened in 1961. At the timepertinent to this case, he worked for Amoco an average of ten hours perweek. His duties included performing pre-employment and annual physicalexaminations on employees and being available to treat workers injuredin on-the-job accidents. Dr. McGuire was responsible for deciding whatinformation should be recorded in the OSHA log and summary ofoccupational injuries and illnesses.[[10]]A thoracotomy is an operation where the patient’s pleura isexposed by resectioning the ribs. The fluid of the pleural effusion iswithdrawn for diagnostic purposes. When, as in this case, the pleuraleffusion is determined to be benign nothing more is done. The pleuraleffusion is eventually absorbed.[[11]]Many of the work restrictions began but continued through thissix-month period. We express no opinion on Amoco’s argument that thesix-month limitations period in section 9(c) of the Act requires thatthe item be vacated as to employees affected by those work restrictions.[[12]]In _General Motors Corp. (Inland Division)_, 80 OSAHRC 85\/A2, 8BNA OSHC 2036, 1980 CCH OSHD (p) 24,743 (No. 76-5033, 1980), theCommission found that General Motors was required to record threeinstances of lost workdays due to respiratory illnesses. In _GeneralMotors_, there was no doubt that the employees were suffering from anillness. The question considered there was whether the illnesses wereoccupationally-related. Therefore, _General Motors_ did not address thequestion of what is considered an \”illness\” under the recording standardand is not controlling on the question currently before us.[[13]]In addition to the conflicting diagnoses’ concerning Betts, therewas testimony that Betts was restricted to areas without dust because hehad one eye and not because he had any occupationally-related illness. Testimony indicated that if Betts was required to wear a face mask orsome similar personal protective equipment his vision would be severelyhampered.[[14]]The record indicates that an abnormal pulmonary function testalone does not suggest a diagnosis of asbestosis. For example, thepulmonary function test of Mulhern was considerably worse than those ofCallway, Kofron, and Pearson. Dr. Fine, however, thought that thelatter three employees had asbestosis while Mulhern did not. He notedthat Mulhern’s chest x-ray was not abnormal and concluded that thepulmonary function abnormalities could therefore not be attributed toasbestosis. Moreover, the report from the Penn study said that of 26employees with abnormal pulmonary function tests, 3 were suggestive ofasbestosis. This indicates that the vast majority of pulmonary functionabnormalities 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 ofemployment which are free from recognized hazards that are causing orare likely to cause death or serious physical harm to his employees.[[16]]The Court of Appeals for the District of Columbia Circuit quotedthis language with approval. 741 F.2d at 449.[[17]]Nothing in our discussion intimates any view on any duty thatAmoco or the physician may have had to Kofron under other federal law orregulations, or access to medical records, and its preamble, whichdiscusses the obligations of employer-selected physicians to employeesunder state law. 45 Fed. Reg. 35212 at p. 35231 (1980). “