“Docket No. 78-0248_78-0250 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, 78-0250AuthorizedEmployee Representative.DecisionBefore: BUCKLEY, Chairman; RADER and Wall, Commissioner.BY THE COMMISSION:This case is before the Occupational Safety and Health Review Commission under 29U.S.C. ?661(j), section 12(j) of the Occupational Safety and Health Act of 1970, 29U.S.C. ??651-678 (\”the Act\”).\u00a0 The Commission is an adjudicatory agency,independent of the Department of Labor and the Occupational Safety and HealthAdministration (\”OSHA\”).\u00a0 It was established to resolve disputes arisingout of enforcement actions brought by the Secretary of Labor under the Act and has noregulatory functions.\u00a0 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 bythe Secretary alleging that, contrary to 29 C.F.R. ?1904.2(a), Amoco Chemical Corporationhad failed to record certain occupational illnesses.\u00a0 The judge also affirmed acitation item alleging that Amoco violated section 5(a)(1) of the Act because it failed toinform one of its employees, Lewis Kofron, of a potentially malignant condition in hislung. \u00a0The judge characterized both violations as \”willful\” and assessedpenalties of $10,000 for each violation.\u00a0 Amoco filed a petition for discretionaryreview, which was granted.\u00a0 We reverse Judge Usher’s decision and vacate bothcitation items.Item 1: Section 1904.2, Recording of Occupational IllnessesItem 1 of the citation alleged that contrary to section 1904.2(a), \”[i]llnessarising from occupational exposure to asbestosis\/asbestos disease) were notrecorded.\” 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 injuriesand illnesses for that establishment; and (2) enter each recordable injury and illness onthe log and summary as early as practicable but no later than 6 working days afterreceiving information that a recordable injury or illness has occurred.\u00a0 For thispurpose form OSHA No. 200 or an equivalent which is as readable and comprehensible to aperson not familiar with it shall be used.\u00a0 The log and summary shall be completed inthe 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) aninjury that is (2) \”occupational\” and (3) \”recordable.\”[[1]]\u00a0 Ourdecision focuses on t he first element of the employer’s duty–that of sertaining that anemployee has an \”illness\” within the meaning of the standard.\u00a0 Although the Secretary’s citation and complaint alleged that asbestosis was notrecorded, they did not state the names of the employees whose illnesses Amoco failed torecord.\u00a0 At the outset of the hearing, however, the Secretary read into the record astipulation that the work activities of eight named employees were restricted.\u00a0 Theemployees were Literal, Mulhern, Strickler, Putnam, Pearson, Betts, Callaway and Kofron.\u00a0The Secretary also established that Kofron had lost workdays.\u00a0 The Secretaryalleged that Amoco should have recorded these work restrictions and lost workdays becausethey resulted from an occupational illness–asbestosis.[[2]]\u00a0 Judge Usher affirmedthe citation item, finding that Amoco’s physician had all the information necessary todiagnose asbestosis but failed to do so.Amoco manufactured polypropylene products at a plant in New Castle,Delaware.\u00a0 The plant opened in 1961 and Amoco purchased the plant from anothercompany in 1968. \u00a0When Amoco took over the plant, it continued the processes theprior owner was using, which involved the use of asbestos.\u00a0 In 1972, Amocodiscontinued the use of asbestos and substituted talc.\u00a0 Some talc containedasbestos.\u00a0 By the middle of 1976, Amoco had switched completely to asbestos freetalc.During this time, many of Amoco’s employee were exposed to asbestos.\u00a0Exposure to asbestos has been linked to several serious illnesses, the most common ofwhich is asbestosis.[[3]]\u00a0 With asbestosis, the lining of the lungs, or pleura,thicken, causing impairment of the lungs’ breathing capacity.\u00a0 Asbestosis isprogressive and, for the most part, irreversible.\u00a0 Respiratory impairment worsenswith time, even if exposure to asbestos has ceased.The most common symptom of asbestosis is\u00a0\u00a0shortness of breath, sometimesaccompanied by a persistent cough.\u00a0 In its early stages, asbestosis is difficult todistinguish from other pulmonary conditions, however.\u00a0 In the later stages of theillness, a person may have calcification of the pleura, clubbing of the hands or cracklingsound in his chest, called rales.\u00a0 In addition to these symptoms, asbestosis commonlyexhibits itself in abnormal chest x-rays and abnormal results of pulmonary functiontests.\u00a0 The hardening of the pleura appears as opaque or \”shaggy\” areas onthe x-ray of the lung.\u00a0 The hardening of pleura causes diminished lung capacity, thatis, the inability to expel a normal amount of air from the lungs.\u00a0 This diminishedcapacity can detected by a pulmonary function test.Because of Amoco’s and the Oil, Chemical Atomic Workers International Union’sconcern about possible health problems at the New castle plant, Amoco retained Dr. AlfredFishman of the University of Pennsylvania to conduct a medical survey at the New Castleplant, concentrating on possible pulmonary problems among the workers.\u00a0 The medicalsurvey consisted of a detailed medical questionnaire and a review of x-rays and theresults of pulmonary function tests supplied by Amoco.Dr. Fishman summarized the results of the study, referred to here as \”thePenn study,\” in January 6, 1976, letter to Dr. Wolkonsky, the medical director ofStandard Oil Company of Indiana, the parent company of Amoco:In summary, we tested 220 subjects of whom 26 had abnormal pulmonary functiontests. \u00a0 Three of these abnormalities were suggestive of asbestosis.\u00a0 On theother hand, seven patients showed evidence of asbestos exposure on chest x-ray independentof 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.\u00a0None of these work restrictions were recorded by Amoco.\u00a0 The Secretary concededat the hearing, however, that the Penn study alone did not furnish Amoco with enoughinformation to conclude its employees had asbestosis.Indeed, Dr. Fishman did not diagnose any Amoco employees as having asbestosis.\u00a0 The purpose of the study was not to make any specific diagnoses, but to surveypossible pulmonary problems at the New Castle plant.\u00a0 Although Dr. Fishman statedthat he suspected \”very strongly\” that the seven employees whose x-rays wereconsistent with asbestosis had asbestosis, [[4]] both Dr. Fishman and his associate in thestudy, Dr. Epstein, agreed that a biopsy would have been necessary for a definitediagnosis.\u00a0 In any event, Amoco cautioned those employees who had abnormal x-rays andpulmonary functions to see personal physicians.\u00a0 Amoco continued to monitor itsemployees’ health by voluntarily conducting annual physical examinations, which includedchest x-rays and pulmonary function tests.\u00a0 In late 1977, the Union engaged several doctors to conduct follow-up studies ofthe health problem at the New Castle plant.\u00a0 These studies were conducted withoutAmoco’s knowledge.Dr. Ruth Lilis examined eleven Amoco employees sent to her by the Union at MountSinai Hospital between October and December of 1977.[[5]]\u00a0 Dr. Lilis is an assistantprofessor teaching occupational and environmental medicine.\u00a0 She has conductedresearch in occupational and environment medicine.\u00a0 She has conducted research inoccupational illnesses including studies of occupational asbestos exposure.\u00a0 Dr.Lilis is also a certified B reader for x-rays for pneumoconiosis, the highest possibleboard certification.\u00a0 There are only 60 such certified x-ray readers in the UnitedStates.The Mount Sinai study seems to have been more thorough than the Penn study.\u00a0The Mount Sinai study included a complete occupational history, medical history, smokinghistory, alcohol intake history, history of present complaints, complete physicalexamination, chest x-ray, pulmonary function test, blood biochemistry and complete bloodcount.\u00a0 As a result of these tests, Dr. Lilis diagnosed eight Amoco employees ashaving asbestosis.\u00a0 The eight employees who Dr. Lilis Amoco employees as havingasbestosis.\u00a0 The eight employees who Dr. Lilis diagnosed were Renniger, Betts,Callaway, Kofron, Mulhern, Litteral, Stirckler and Camisky.\u00a0 Although Dr. Lilis’study was not available to Amoco until the hearing, Dr Lilis testified that Amoco’s annualphysicals, which included chest x-rays and pulmonary function test, would have yieldedsimilar results to her own if those tests were conducted reasonably close in time to hertests.The Union also engages Dr. Lawrence Fine to review pulmonary function tests andchest x-rays of 10 Amoco employees.[[6]] Dr. Fine teaches courses in occupational medicineat Harvard School of Public Health.\u00a0 At the time of the hearing he was developing aset of medical criteria for the \”presumptive\” diagnosis of asbestosis for theDepartment of Labor.\u00a0 Dr. Fine was also a certified x-ray reader.\u00a0 Dr. Fine wasnot told the source of the medical tests he reviewed but assumed that the pulmonaryfunction information, which included smoking histories and some information about theemployees’ symptoms and x-rays, were supplied by the company.\u00a0 From his review of thechest x-rays and the pulmonary function tests, Dr. Fine testified that Renniger, Callaway,Pearson and Kofron had conditions \”consistent with\” a diagnosis of asbestosis.\u00a0Dr. Fine also testified that Strickler and Litteral had conditions \”suggestiveof \” asbestosis.[[7]]Among the employees whom the various studies revealed suffered from the effects ofasbestos exposure was Lewis Kofron.\u00a0 Kofron had been exposed to asbestos from 1967 to1972 while working in the resin department at New Castle.\u00a0 The Penn study said thatKofron had\u00a0 \”heavy exposure\” to asbestos while dumping material into bin.\u00a0The Penn study also noted that Kofron’s x-ray revealed several smallirregularities.[[8]]\u00a0 Kofron was one of the Amoco employees diagnosed by Dr. Lilisand Dr. Fine in late 1977 as having asbestosis.In September 1976, Dr. Olivere, a local radiologist hired by Amoco to perform andinterpret x-ray on Amoco employees, detected a pleural effusion on Kofron’s lung.\u00a0Dr. Olivere made similar interpretation in February 1977.\u00a0 On both occasions,Dr. Olivere conveyed his findings to Dr. McGuire, the Amoco physician on duty at NewCastle plant.[[9]]A pleural effusion is a collection of fluid in the pleural space.\u00a0 Medicaltestimony at hearing established that a pleural effusion can be benign but that it canalso be a sign of lung cancer or mesothelioma.\u00a0 Both the Secretary’s and Amoco’sexperts agree that standard medical practice dictates that a pleural effusion be promptlydiagnosed by performing a biopsy.\u00a0 Dr. McGuire, who knew that Kofron was under careof a personal physician, did not tell Kofron about the pleural effusion.\u00a0 Eventually,Kofron’s doctor referred him to a thoracic surgeon who performed a thoracotomy uponhim.[[10]]\u00a0 This procedure revealed that the pleural effusion was benign.Kofron missed several workdays as a result of this operation.\u00a0 When Kofronreturned to work after the operation, he was transferred to another section of the plantwhere he would not be exposed to dust or talc.\u00a0 Amoco did not record in its OSHA thistransfer or Kofron’s lost workdays due to the operation.The Secretary argues that Amoco should have recorded work restriction and lostworkdays for eight employees during a six-month period from June 29,1977, to December 29,1977.[[11]]\u00a0 First, the Secretary argues that to establish a violation, he need showonly that Amoco’s employees lost workdays or were placed on work restrictions as a resultof a work-related \”condition.\”\u00a0 The Secretary maintains that it isirrelevant what the employer calls the condition or whether the condition is diagnosed asa particular illness.\u00a0 Whether the \”condition\” is asbestosis or pleuraleffusion, the Secretary argues, the employer must record it if it isoccupationally-related and results in lost workdays or work restrictions.Second, the Secretary argues that although Amoco had not received any reporteddiagnosis within the meaning of the last sentence of section 1904.12(c)(3), Amoco hadsufficient medical information to diagnose several employees as having asbestosis. \u00a0In this regard, the Secretary notes that Dr. Fine diagnosed several Amoco employees ashaving conditions \”consistent with\” or \”suggestive of\” asbestosis fromthe results of chest x-rays and pulmonary function tests that Amoco had given to theemployees as part of their annual physicals.\u00a0 The Secretary also notes Dr. Lilis’testimony that Amoco should have diagnosed a number of employees as having asbestosis fromthe results of their annual physical examinations.\u00a0 The Secretary claims that Amoco’sretained physician, Dr. McGuire, had this information available to him and should havediagnosed the same employees as having asbestosis.Amoco argues that an employer is required to record only those illnesses that havebeen diagnosed and reported to the employer.\u00a0 It maintains that the last sentence ofsection 1904.12(c)(3) evinces the Secretary’s intent to not require more of an employer.\u00a0 Amoco notes that section 1904.2(a) does not impose upon an employer a duty to makea diagnosis of an illness.\u00a0 Amoco reasons that the standard was instead intended torequire employers to simply record information that had come to their attention and wasnot intended to impose on employers a duty to exercise medical judgment, a necessary stepin the diagnosis of illness.\u00a0 Amoco points out that the diagnoses’ of asbestosis madeby 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’ personalphysicians.Amoco also argues that even if the standard does require that employers makediagnoses’, the judge erroneously found that it had enough information to diagnoseasbestosis.\u00a0 First, Amoco claims that the record does not reveal that Amoco hadmedical information that was available to Dr. Lilis and Dr. Fine.\u00a0 Second, Amocopoints to the testimony of several medical experts that a biopsy is necessary to make apositive diagnosis of asbestosis.\u00a0 No biopsies were performed on the Amoco employeesduring any of the studies.Discussion\u00a0\u00a0 It is undisputed that eight Amoco employees were restricted and one Amoco employeelost workdays at the New Castle workplace.\u00a0 It is also undisputed that none of theincidents of work restrictions and lost workdays were recorded.\u00a0 Such workrestrictions and lost workdays are recordable under section 1904.12(c)(2) and (3) if theSecretary can establish that the employees were restricted and lost workdays as a resultof occupationally-related illnesses.\u00a0 Since expert testimony established thatasbestosis is almost invariably occupationally-related, the questions raised here arewhether the Amoco employees had asbestosis; whether the standard required Amoco to make ajudgment about whether the employees had asbestosis; and if so, whether Amoco should havedetermined that they did.[[12]]Before we discuss these questions, however, we address the Secretary’s argumentthat he is required only to establish that the employees were suffering from anoccupationally-related \”condition.\”\u00a0 The recording standard veryspecifically states that an employer must record \”occupationally-related injuriesand illnesses.\”\u00a0 (Emphasis added.)\u00a0 The question here, then, is whetherAmoco employees were proven on this record to have had \”illnesses\” or\”injuries.\”\u00a0 Although the Secretary argues that Kofron’s pleural effusionwas recordable because he lost workdays due to diagnostic testing to determine whether itwas malignant or benign, the evidence does not show that a pleural effusion is in and ofitself an illness.\u00a0 Here, the record is limited because the Secretary did not evenattempt to show at the hearing or argue in his post-hearing brief that a pleural effusionis an illness; instead the Secretary introduced this argument for the first time in hissupplemental brief to the Commission.\u00a0 According to the record, a pleural effusionmay be either malignant or benign and a pleural effusion diagnosed as being benignapparently requires no medical care and is eventually absorbed.\u00a0 There is no evidencethat the presence of a benign pleural effusion is harmful in an of itself because, forexample, it impairs an employee’s ability to breathe.\u00a0 Although we are not entirelycomfortable with finding that a pleural effusion was not shown to be an illness, we arenot physicians, and our determination that a condition constitutes an illness is dependenton the medical evidence in the record.\u00a0 Since the record does not establish that apleural 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 arguesshould have been recorded.\u00a0 It bears emphasis that when Amoco had only the Penn studyand the diagnoses’ of Drs. Lilis and Fine or the information developed during theirstudies.\u00a0 Moreover, the Secretary conceded at the hearing that the Penn study alonedid not furnish enough information to warrant conclusion that the employees it covered hadasbestosis.There was no evidence that one employee, Putnam, had asbestosis.\u00a0 Putnam wasexamined by Dr. Lilis, who with more information than Amoco had, declared Putnam not tohave asbestosis.\u00a0 The Secretary presented no other evidence concerning Putnam’scondition.\u00a0 Therefore, the portion of item 1 concerning Putnam is vacated.Concerning the remaining seven Amoco employees, we cannot say on this record thatAmoco’s judgment that these employees did not have asbestosis was, at the time Amoco madethe judgment, unreasonable.\u00a0 We do not reach the question of whether the recordingstandard requires an employer to make a judgment that an employee had an illness. \u00a0Even if the standard places an obligation upon the employer to make such a medicaljudgment, the Secretary has not established that Amoco should have made such a judgmenthere.Drs. Lilis and Fine specifically disagreed about whether two Amoco employees,Betts and Mulhern, had asbestosis.\u00a0 Dr. Lilis diagnosed them as having asbestosiswhile Dr. Fine said they did not have the illness.[[13]]\u00a0 Two other Amoco employees,Litteral and Strickler, had confounding medical histories that made it unclear whether theemployees had asbestosis.\u00a0 Both of them had had incidents of pleurisy, which Dr. Finetestified was among the infections of the pleural space that could cause pleuralthickening similar to asbestosis.\u00a0 Dr. Fine testified that Litteral’s and Strickler’sconditions were merely \”suggestive of\” asbestosis.\u00a0 While Dr. Lilisdiagnosed both Litteral and Strickler as having asbestosis.\u00a0 While Dr, Lilisdiagnosed both Litteral and Strickler as having asbestosis, she also testified that acolleague 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 fouremployees had asbestosis but also underscore the fact that even for experts inoccupational health, such as Drs. Lilis and Fine both diagnosed asbestosis in Callway andKofron, and Dr. Fine testified that Pearson, whom Dr. Lilis did not examine, hadasbestosis.\u00a0 However, the record indicates that even for these employees the diseasewas still in its early stages, when diagnosis is difficult.\u00a0 The pulmonary functiontests for these employees were not worse, and in some cases were better, than foremployees not diagnosed as having asbestosis.\u00a0 Essentially, the critical factordistinguishing these three employees from the others was the presence of somewhat greaterirregularities in their chest x-rays.[[14]]Drs. Lilis and Fine, however, were certified x-ray readers and were uniquelyqualified to diagnose asbestosis based on the types of irregularities present in thex-rays of Callaway, Kofron, and Pearson.\u00a0 Dr. McGuire did not possess similarexpertise. \u00a0 Indeed, Dr. McGuire that Kofron had a pleural effusion.\u00a0 But thereis no evidence that Dr. McGuire was informed of abnormalities on any of the x-rays thatwere suggestive of asbestosis.\u00a0 Nor is there any evidence that the x-rayabnormalities were so striking that any reasonable radiologist or general practitionerwould have reached such a diagnosis.To find Amoco in violation of the recording standard on these facts would meanthat every employer must exercise the same medical judgment as the best qualified expertsin the nation.\u00a0 We cannot interpret the standard to require such a result, whichfinds no support in either its language or its brief legislative history.\u00a0 See 36Fed. Reg. 12612 (July 2, 1971).\u00a0 In the absence of a clear indication of what kind ofmedical review the standard requires, the standard cannot be read to require an employerto do more than make a reasonable judgment based on the information and expertiseavailable to it.\u00a0 The Secretary showed that Dr. McGuire’s medical judgment differedfrom that of the acknowledged experts the Secretary used to second-guess him, but did notshow that Dr. McGuire’s judgment was unreasonable based on his experience and expertiseand on the information available to him.\u00a0 Item 1 of the citation is thereforevacated.Item 2: Section 5(a)(1), Failure to Inform Employee of Serious ConditionItem 2 of the citation\u00a0 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 seriousmedical condition (pleural effusion), under conditions which were likely to cause death orserious physical harm.\”[[15]]\u00a0 At the hearing, the Secretary argued that Amocohad failed to inform employee Kofron of a potentially malignant condition on his lungafter Dr. Olivere had informed Dr. McGuire of the condition.Judge Usher affirmed the item on the ground that Amoco knew of Kofron’s possiblyserious condition but did not tell him and therefore \”squandered Kofron;s chances forearly detection of cancer.\”\u00a0 We reverse.The Secretary claims that there are two grounds upon which to find a violation ofsection 5(a)(1).\u00a0 First, the Secretary contends that Kofron was exposed to possiblepolypropylene dust from the time the pleural effusion was detected to the time it wasremoved.\u00a0 Second, the Secretary claims that Amoco’s failure to inform Kofron of hispotentially dangerous condition exposed him to the possibility that, if the pleuraleffusion 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 wasrecognized 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 materiallyreduced the hazard.\u00a0 See, e.g., National Realty & ConstructionCo. v. OSHRC, 489 F.2d 1257 (D.C. Cir. 1973).\u00a0 Concerning the Secretary’s claimthat Kofron was exposed to polypropylene dust, the record does not indicate what effect,if any, such dust would have had on Kofron’s condition.\u00a0 Thus, the Secretary has notshown that a hazard from polypropylene dust existed at the Amoco plant.\u00a0 Accordingly,this aspect of the citation item must be vacated.The Secretary’s second 5(a)(1) contention must also be dismissed.\u00a0 TheSecretary argues that \”the primary hazardous condition was the passage of time duringwhich the disease progressed.\”\u00a0 The question before the Commission is,therefore, whether the passage of time is an \”occupational hazard\” under thegeneral duty clause. \u00a0 In American Cyanamid Co., 81 OSAHRC 1\/B4, 9 BNA OSHC1596 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 anywomen from 16 to 50 years of age from production jobs in the lead pigments departmentunless they had been sterilized, was not a hazard cognizable under section 5(a)(1) of theAct.\u00a0 The Commission analyzed the legislative history of the Act and concluded the\”Congress conceived of occupational hazards in terms of processes and materials whichcause injury or disease by operating directly upon employees as they engage in work orwork-related activities.\”\u00a0 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 wentuntreated is not a hazard cognizable under the general duty clause of the Act.\u00a0 Thepassage of time is not a process or material which operates directly upon an employee ashe works at his job.\u00a0 In this regard, it is important to note that the\”hazard\” as defined by the Secretary would have occurred to Kofron whether hewas working at Amoco or not.This is not to say that the Secretary may not adopt a standard requiring anemployer to disclose medical information directly to its employees.\u00a0 Our decisionpertains only to the employer’s obligation under the general duty clause.\u00a0 Indeedwith regard to employers using asbestos, the Secretary has addressed the employer’sobligation to provide medical information.\u00a0 In 1977, a provision of the asbestosstandard, 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 of NIOSH, toauthorized physicians and medical consultants of either of them, and, upon the requestof an employee or former employee, to his physician.(Emphasis added).There was no requirement to make records available for copying to employees, norany requirement to bring information to the attention of an employee’s physician if thephysician did not take the initiative to inspect and copy the records.\u00a0 Even whenthis section was amended in 1980, it gave employees access to their medical records butonly \”upon request.\”[[17]] 45 Fed. Reg. 35281 (1980).\u00a0 We cannot find anemployer in violation of the general duty clause for not having done more than required bya specifically applicable standard.We are troubled by Amoco’s failure to inform Kofron, or at least Kofron’s privatephysician, of the discovery of the pleural effusion.\u00a0 While the record does notestablish that a pleural effusion is an illness in and of itself, both the Secretary’s andAmoco’s experts testified that standard medical practices dictate that a pleural effusionbe promptly diagnosed to determine whether the effusion is a symptom of mesothelioma orlung cancer.\u00a0 But we cannot say that its inaction violated the general duty clause ofthe Occupational Safety and Health Act.The judge’s decision is reversed.\u00a0 Item 1 and 2 of the citation are vacated.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED: June 19, 1986The Administrative Law Judge decision in this matter is unavailable in this format. Toobtain a copy of this document, please request one from our Public Information Office bye-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.\u00a0 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, or the lengthof 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 jobor termination of employment, or require medical treatment (other than first aid) orinvolve: loss of consciousness or restriction of work or motion,\u00a0 This category alsoincludes any diagnosed occupational illnesses which are reported to the employer but arenot classified as fatalities or lost workday cases.[[2]]Two expert witnesses testified at the hearing that there is no medicallysignificant difference between the terms \”asbestosis\” and \”asbestosdisease.\”\u00a0 Therefore, we will read the citation as alleging that Amoco failed torecord instances of asbestosis.[[3]]Exposure to asbestos has also been linked to increased incidence of lungcancer and mesothelioma, a cancer of the lung’s lining.[[4]]Seven Amoco employees exhibited some bilateral pleural thickening, which oneof the Secretary’s medical experts testified is indicative of asbestosis.\u00a0 However,is is not clear from the record whether the seven employees with bilateral pleuralthickening were the same employees as the seven employees named in Dr. Fishman’s letterwho \”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 theresults of the Penn study for 92 Amoco employees and concluded that there was a largenumber of abnormalities in the workplace population.\u00a0 Dr. Keogh’s survey was notavailable to Amoco before the hearing.[[8]]In a letter to Dr. Wolkonsky, Dr. Fishman described Kofron’s condition as:\”Right costophrenic sulcus blunting.\u00a0 This man works as a laborer in the filledresin department.\u00a0 He has had heavy exposure to asbestos while dumping material intothe bin since 1967.\u00a0 He has no other occupational or medical history which wouldexplain his findings.\”[[9]]Dr. McGuire had been a practicing physician since 1933.\u00a0 He had workerat the New Castle plant since it opened in 1961.\u00a0 At the time pertinent to this case,he worked for Amoco an average of ten hours per week.\u00a0 His duties included performingpre-employment and annual physical examinations on employees and being available to treatworkers injured in on-the-job accidents. Dr. McGuire was responsible for deciding whatinformation should be recorded in the OSHA log and summary of occupational injuries andillnesses.[[10]]A thoracotomy is an operation where the patient’s pleura is exposed byresectioning the ribs.\u00a0 The fluid of the pleural effusion is withdrawn for diagnosticpurposes. \u00a0 When, as in this case, the pleural effusion is determined to be benignnothing more is done.\u00a0 The pleural effusion is eventually absorbed.[[11]]Many of the work restrictions began but continued through this six-monthperiod. \u00a0 We express no opinion on Amoco’s argument that the six-month limitationsperiod in section 9(c) of the Act requires that the item be vacated as to employeesaffected by those work restrictions.[[12]]In General Motors Corp. (Inland Division), 80 OSAHRC 85\/A2, 8 BNAOSHC 2036, 1980 CCH OSHD (p) 24,743 (No. 76-5033, 1980), the Commission found that GeneralMotors was required to record three instances of lost workdays due to respiratoryillnesses.\u00a0 In General Motors, there was no doubt that the employees weresuffering from an illness.\u00a0 The question considered there was whether the illnesseswere occupationally-related.\u00a0 Therefore, General Motors did not address thequestion of what is considered an \”illness\” under the recording standard and isnot controlling on the question currently before us.[[13]]In addition to the conflicting diagnoses’ concerning Betts, there wastestimony that Betts was restricted to areas without dust because he had one eye and notbecause he had any occupationally-related illness.\u00a0 Testimony indicated that if Bettswas required to wear a face mask or some similar personal protective equipment his visionwould be severely hampered.[[14]]The record indicates that an abnormal pulmonary function test alone does notsuggest a diagnosis of asbestosis.\u00a0 For example, the pulmonary function test ofMulhern was considerably worse than those of Callway, Kofron, and Pearson.\u00a0 Dr. Fine,however, thought that the latter three employees had asbestosis while Mulhern did not.\u00a0 He noted that Mulhern’s chest x-ray was not abnormal and concluded that thepulmonary function abnormalities could therefore not be attributed to asbestosis. \u00a0Moreover, the report from the Penn study said that of 26 employees with abnormal pulmonaryfunction tests, 3 were suggestive of asbestosis.\u00a0 This indicates that the vastmajority of pulmonary function abnormalities are attributable to causes other thanasbestosis.[[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 whichare free from recognized hazards that are causing or are likely to cause death or seriousphysical harm to his employees.[[16]]The Court of Appeals for the District of Columbia Circuit quoted thislanguage with approval.\u00a0 741 F.2d at 449.[[17]]Nothing in our discussion intimates any view on any duty that Amoco or thephysician may have had to Kofron under other federal law or regulations, or access tomedical records, and its preamble, which discusses the obligations of employer-selectedphysicians to employees under state law.\u00a0 45 Fed. Reg. 35212 at p. 35231 (1980).\u00a0″