“SECRETARY OF LABOR,Complainant,v.GENERAL MOTORS CORPORATION,ELECTRO-MOTIVE DIVISION,Respondent.LOCAL UNION 719, UNITEDAUTOMOBILE, AEROSPACE &AGRICULTURAL IMPLEMENTWORKERS OF AMERICA,INTERNATIONAL UNION,Authorized EmployeeRepresentative.DOCKET NOS. 82-0630, 84-0781, 84-0816_DECISION_Before: MONTOYA and WISEMAN, Commissioners.[[1\/]]BY THE COMMISSION:Certain employees of General Motors Corporation, Electro Motive Division(\”GM\”), filed requests with GM for access to its medical and exposurerecords concerning them. Those requests were made pursuant to therecords access rule, 29 C.F.R. ? 1910.20, promulgated by the Secretaryof Labor’s Occupational Safety and Health Administration (\”OSHA\”). GMdenied the requests on the ground that they related to pending worker’scompensation (\”WC\”) claims that those employees had brought against itin Illinois. We now review the merits of the Secretary’s citationsissued to GM based on those access denials.GM claims that the access requests were invalid because they effectivelychange Illinois’ WC law, in violation of ? 4(b)(4) of the OccupationalSafety and Health Act, 29 U.S.C. ? 653(b)(4). That section states,\”[n]othing in this Act shall be construed to supersede or in any manneraffect, any workmen’s compensation law …\”[[2\/]] GM contends that theresult of enforcing the employees’ requests would be to give employeesgreater rights than GM has to pretrial disclosure of informationrelevant to their pending WC proceedings. GM also argues that itsrefusal to provide access is at most a _de minimis_ violation of therecords access rule, warranting no penalty or abatement requirement.Former Commission Administrative Law Judge Edward A. Bobrick rejectedGM’s arguments, found a willful and serious violation in all threecases, and assessed a $10,000 penalty in each case. We affirm thejudge’s findings of violations, but find them non-willful and impose a$1000 penalty in each case, for the reasons that follow.I. _Background_The 1982 case involves William Havell, an employee at GM’s La Grange,Illinois, facility. Havell had filed a claim against GM in 1979 underthe Illinois Worker’s Compensation Act. 111. Rev. Stat. Ch. 480 ? 138.The basis for that claim was that Havell \”injured his body while working.\”In March 1982, Havell submitted to GM, through the law firm thatrepresented him in the WC claim, a signed request for access to \”[a]llmedical and exposure records\” concerning him. The stated purpose of therequest was \”Investigation and legal representation.\” Havell alsospecifically authorized release of the records to the law firm.Upon receipt of the records access request, GM sought an opinion fromits legal counsel about whether to comply. GM’s legal counsel advisedthat the request was invalid under ? 4(b)(4) of the Act because the\”obvious purpose of this request under OSHA is to gather information foruse in the [WC] matter that cannot be gathered under the IllinoisCompensation law.\” In support, the counsel noted that the Illinois lawallows no prehearing discovery regarding pending WC claims. In denyingthe records access request, GM set forth the reasons supplied by itscounsel.The Secretary issued a one-item citation to GM in June 1982, with asingle $480 proposed penalty. Item 1A alleged a failure to provideHavell’s designated representative with access to GM’s, medical recordson him, contrary to ? 1910.20(e)(1)(i).[[3\/]] Item 1B alleged a failureto provide the representative with access to requested exposure recordsthat GM kept concerning Havell, contrary to ? 1910.20(e)(2)(i).[[4\/]]In June 1983, shortly before the hearing on the merits, the Secretarymoved to amend the citation to allege that the item was both willful andserious, and to amend the proposed penalty to $4800. The judge grantedthe motion.There is no dispute that GM failed to comply with the rule.[[5\/]]Accordingly, the Secretary and GM submitted the case for resolution ofonly the following issues:….the parties desire to limit this case to the questions of whetherMr. Havell’s request for access to medical and exposure records can bevalid in view of Section 4(b)(4) of the Occupational Safety and HealthAct, the characterization [sic] of the violation, if any, and thepenalty, if any….The two 1984 cases arose out of similar requests for records access,filed by, or on behalf of, two other employees at the same facility. Theparties have agreed to be bound in those cases by the final decision inthe 1982 case, except that GM has the option of presenting additionalarguments on the alleged willfulness and proposed penalties in the 1984cases.II. _Whether ? 1910.20 violates ? 4(b)(4), as applied here _The language of ? 4(b)(4) (quoted above at n. 2) is quite broad.However, we believe that the United States Court of Appeals for the D.C. Circuit properly interpreted that language in its comprehensivedecision in the lead standard case. _United Steel- workers of America v.Marshall,_ 647 F.2d 11891 1234-36 (D.C. Cir. 1980). _cert. denied_,453U.S. 913, 101 S. Ct. 3148 (1981). It essentially held that ? 4(b)(4)means only that the Act and OSHA regulations are not to be interpretedto alter the terms of any WC law.[[6]] _Accord, Pratico v. PortlandTerminal Co.,_ 783 F.2d 255, 264-67 (1st Cir. 1985).The OSHA records access rule does not change the terms of eitherIllinois’ WC Act or its Occupational Diseases Act. Ill. Rev. Stat. Ch.48, ? 138, 172.36 _et. seq._ (\”Illinois Acts\”). Nor must the IllinoisIndustrial Commission (IIC), which governs the adjudication of casesunder both Acts, do anything inconsistent with their terms, as a resultof ? 1910.20.[[7\/]] Thus, ? 4(b)(4) has not been violated.[[8\/]]Our reading of the court’s decision in _Steelworkers_ supports thisconclusion. The issue in _Steelworkers_ was whether the medical removalprotection (\”MRP\”) benefits for employees provided by the lead standardsuperseded or affected WC laws in violation of ? 4(b)(4). The employersargued that because MRP benefits exceeded the benefit levels under WClaws for lead exposure, MRP in effect impermissibly modified those laws.The court held that \”though MRP may indeed have a great practical effecton workmen’s compensation claims, it leaves the state schemes whollyintact as a legal matter, and so does not violate Section 4(b)(4).\” 647F. 2d at 1236 (emphasis in original). If MRP, which largely negated theWC limitations on employees’ recovery for lead-related illness, does not\”affect\” WC laws for purposes of ? 4(b)(4), certainly the records accessrule that is now before us does not \”affect\” them.There was testimony that pretrial \”discovery\” _per se_ is not providedfor under the Illinois Acts.[[9\/]] However, those Acts provide ampleopportunity for both WC claimants and their employers to obtain medicaland exposure records for use in WC proceedings. For example, theIllinois Acts require that every person rendering treatment or servicesin connection with a claim must turn over their records to any party onwritten request. _Id.,_ ? 138.8(a).[[10]] The IIC may permit pre-trialdepositions of any person whose testimony is deemed necessary by eitherparty, for use as evidence at trial. Id., ? 138.16.[[11\/]] The IIC isrequired to issue subpoenas at the request of either party for theattendance of witnesses and production of documents._Id_.[[12\/]]Havell’s effort to obtain information about his health through therecords access rule violates neither the letter nor the spirit of theIllinois Acts. Procedures under those Acts are designed to minimizecosts and to simplify and speed the process, so that an eligibleemployee may gain prompt and equitable compensation. E.g., ?? 138.16,.16a. _See Kelsay v. Motorola, _74 Ill. 2d 172, 180-81, 384 N.E.2d 353,355-57 (1978). As a result, those Acts do not provide for the pretrialdiscovery allowed in certain other civil proceedings. Records accessunder ? 1910.20, however, does not conflict with these objectivesbecause such access does not slow down or otherwise interfere withIllinois WC proceedings. The Illinois Acts are not intended to negateinformation rights that employers or employees have under other laws.It is also noteworthy that Congress did not anticipate that the requireddisclosure of employer records on toxic materials or harmful physicalagents would violate ? 4(b)(4). The Act instructs the Secretary to issueregulations requiring employers to maintain accurate records of allmonitoring or measuring mandated under the Secretary’s standards. ?8(c)(3) of the Act, 29 U.S.C. ? 657(c)(3). It further states:Such regulations shall also make appropriate provision for _each_employee or former employee to have access to such records as willindicate his own exposure to toxic materials or harmful physical agents._Id. _(emphasis added). Section 8(c)(3) of the Act requires appropriateprovisions for access by each employee to medical and exposure records.Also, we agree with OSHA’s formal interpretation that the rule is notrendered unenforceable by the mere fact that an access request isrelated to private litigation, including WC litigation._Access toEmployee Exposure and Medical Records; Partial Stay; Interpretations,_46 Fed. Reg. 40,490 (Aug. 7, 1981).[[13\/]] That interpretation wasissued long before the citations in these cases, and it is consistentwith the specific mandate of records access in the Act.That interpretation shows that ? 1910.20 was not intended to change WCdiscovery provisions. OSHA made clear that the rule does not requiredisclosure of records created by the employer in anticipation oflitigation and which would be unavailable to the employee in WCproceedings for that reason. Here, GM does not claim that the requestedrecords fall under that exception to discovery (the so-called \”workproduct\” doctrine), or under any other specific exemption fromdiscovery. It merely claims that ? 1910 20 unavoidably conflicts with ?4(b)(4), whenever there is a pending WC claim. Such a notion lacks merit.Although the access required by the Act may have an indirect, practicalimpact on the timing of certain disclosures in WC proceedings, it has nolegal effect on them. It does not change the terms of the Illinois Acts,or require actions inconsistent with those terms in WC proceedings. Wetherefore conclude that the rule does not violate ? 4(b)(4).[[14\/]]In a related argument, GM claims that the records access rule violatesits due process rights. It relies on _Wardius v. Oregon,_ 412 U.S. 470,93 S.Ct. 2208 (1973). There, the Supreme Court held that a statecriminal statute regarding discovery denied the defendant due process oflaw. That statute required the defendant to disclose, before trial, theidentity of alibi witnesses he planned to have testify. It did notexplicitly require the state to disclose the identity of witnesses itplanned to call to refute the alibi. The Court stated:It is fundamentally unfair to require a (criminal) defendant to divulgethe details of his own case while at the same time subjecting him to thehazard of surprise concerning refutation of the very pieces of evidencewhich he disclosed to the State.412 U.S. at 476, 93 S.Ct. at 2212-13. However, we conclude that thisdecision does not control the cases before us, because it is based onconcern for the rights of criminal defendants. The special protectionsgiven a criminal defendant are simply not required in civil cases likeWC proceedings. The Supreme Court has held that \”due process is flexibleand calls for such procedural protections as the particular situationdemands.\” _Morrissey v. Brewer,_ 408 U.S. 471, 481, 92A S.Ct. 2593, 2600(1972) (full panoply of rights given to criminal defendant does notapply to parole revocations). _Accord,_ _e.g.,_ _Mathews v. Eldridge,_424 U.S. 319, 334, 96 S.Ct. 893, 902 (1976) (proceedings to terminateSocial Security disability benefit payments). WC proceedings need notadhere to the strictures of criminal or even civil judicial proceedings,so long as the substantial rights of the parties are notinfringed._E.g.,_ _Crowell v. Benson,_ 285 U.S. 22, 48, 52 S.Ct. 285,291 (1932) (rejecting claims that summary administrative proceduresunder Federal WC law, Longshore and Harbor Workers’ Compensation Act(LHWCA), violate due process).Section 1910.20 does not infringe the substantial rights of parties inIllinois WC proceedings. Those rights are not infringed by the mere factthat one party may obtain information from the other under another law,without having to provide reciprocal information. The law that wasunsuccessfully challenged in _Crowell v. Benson_ permitted an imbalanceof prehearing information. That imbalance was essentially similar to theimbalance that might exist in an Illinois WC proceeding, with or withouta related records access request under ? 1910.20.[[15\/]] The Court heldthat due process was preserved nevertheless, because it was implicitunder the law that all \”facts…and their sources shall be shown in therecord and be open to challenge and opposing evidence.\” Id. The samerights are preserved under the Illinois Acts.[[16\/]]Thus, ? 1910.20 does not deprive parties due process in Illinois WCcases, and GM’s due process argument is rejected. We affirm a violationin each of these three cases.III._Whether the violations were willful_A willful violation is one committed with intentional, knowing orvoluntary disregard for the requirements of the Act, or with plainindifference to employee safety._E.g.,_ _Williams Enterprises,_ Inc., 13BNA OSHC 1249, 1256-57, 1986-87 CCH OSHD ? 27,893, p. 36,589 (No.85-355, 1987). It is differentiated from other types of violations by a\”heightened awareness — of the illegality of the conduct or conditions– and by a state of mind — conscious disregard or plain indifference.\”Id., However, a violation is not willful if the employer had a goodfaith belief that it was not in violation. The test of good faith forthese purposes is an objective one — whether the employer’s beliefconcerning a factual matter, or concerning the interpretation of a rule,was reasonable under the circumstances. Id. 13 BNA OSHC at 1259, 1986-87CCH OSHD at p. 36,591; _Mel Jarvis Construction Co.,_ 10 BNA OSHC 1052,1053, 1981 CCH OSHD ? 25,713, p. 32,060 (No. 77-2100, 1981).[[17\/]]Based on the particular circumstances here, we find that GM had anobjective, good faith basis for believing that it was not required tocomply with the terms of the records access rule. That basis includes,but is not limited to, its reasonable, although in our view incorrect,interpretation of ? 4(b)(4). We cannot find, on the state of theserecords, that GM’s refusal to comply actually was based on anunderlying, willful motive. Thus, we find that the violations are notproperly classified as willful.Initially, we note that the issue before us is limited, due to theparticular stipulations between the Secretary and GM.[[18\/]] As notedabove, the Secretary stipulated that she would be bound in the 1984cases by the final decision regarding the 1982 case. Thus, if the 1982violation is found non-willful, the 1984 violations also should be foundnon-willful. Our determination of whether the 1982 violation was willfuldepends on GM’s motives at the time the alleged violation occurred,which of course was before the citation was issued. Events occurringafter the citation may be relevant in determining what GM’s motives werefor violating the regulation, but they could not be the basis for afinding of willfulness in and of themselves.We therefore first examine GM’s initial basis for failing to comply withHavell’s request in 1982. The Secretary stipulated that GM routinelycomplies with records access requests that it deems consistent with thecited regulation, and that GM provided access in response to all of therequests it received in 1982 (approximately 10), except for Havell’s.When it received Havell’s request, GM sought the opinion of itsattorneys on whether to disclose the documents requested, in light ofthe pending WC claim.As our earlier response to GM’s ? 4(b)(4) arguments indicates, itsattorneys had a substantial legal question to answer. The language of ?4(b)(4) is ambiguous, as the D.C. Circuit noted in _Steelworkers. _Atthat time, the Commission had not addressed the permissible effects ofthe Act on WC cases, and _Steelworkers_ involved a somewhat different issue.We therefore conclude that it was not imprudent for GM’s attorneys tocounsel it to ask the Commission to clarify the effect of ? 4(b)(4),before turning over documents relevant to the WC claim to Havell’sattorneys. The fact that GM acted consistently with the advice of itslegal counsel is also relevant to whether its noncompliance waswillful._E.g.,_ _Trans World Airlines, Inc. v. Thurston, _469 U.S. 111,128-30, 105 S.Ct. 613, 625-26 (1985). Thus, although GM’s suggestedinterpretation of ? 4(b)(4) may seem a bit \”strained,\” as the judgefound, there was an objective, good faith basis for GM to believe thatit was excused from compliance with the records access rule in thecontext of Havell’s records access request.In the judge’s opinion, the violations were willful because GM singledout employees who had filed WC claims by refusing them access to allmedical and exposure records, regardless of whether the records relatedto those claims. He found that the fact that GM had sought and relied onits legal counsel’s opinion did not negate willfulness, because GM didnot offer to turn over documents unrelated to Havell’s WC claim.We note, however, that there is no evidence that GM knew, at the timethe 1982 citation was issued, that it had records on Havell that wereunrelated to the WC claim. When the 1982 violation occurred, the statedbasis for Havell’s WC claim was merely that he had \”injured his bodywhile working.\” GM’s counsel concluded that the records access requestarose out of that claim, and that its \”obvious purpose\” was to gatherinformation for use regarding the WC claim. The fact that the recordsaccess request was filed by the attorneys who represented Havell in theWC case underscores the plausibility of that conclusion.The Secretary contends that GM’s willfulness is demonstrated by itsfailure to provide Havell access to all medical and exposure records,even when the WC claim was amended, a few months after GM contested thecitation, to specify that the alleged injury was to the \”lower back.\”This argument is without merit. We cannot base a finding of willfulnesson the mere fact that GM did not abate a cited violation during thependency of these proceedings. Employers are not required to abatealleged violations until their contest is finally decided by theCommission, where the contest is \”initiated by the employer in goodfaith and not solely for delay and avoidance of penalties . . . .\” ?10(b) of the Act, 29 U.S.C. ? 659(b).Moreover, GM still had good faith bases for believing that compliancewas not required, even after Havell’s WC claim was amended. GM claimedthat Havell’s jobs never involved exposure to hazards about whichrecords must be disclosed under the regulation — \”toxic substances orharmful physical agents.\” _See,_ _e.g._, ? 1910.20(b)(1).[[19\/]] Thereis no contention that this position was not held in good faith, althoughGM subsequently waived that position as part of the stipulations. GMalso preserved the right to rely on the legal claims of industry in acase then pending, which challenged the validity of the records accessrule. _Louisiana Chemical Ass’n v. Bingham,_ 550 F.Supp. 1136 (W.D. La.1982),_aff’d per curiam,_ 731 F.2d 280 (5th Cir. 1984). There is noclaim that GM’s reliance on the industry’s arguments in that case wasnot maintained in good faith, although those claims were rejected by theDistrict Court following GM’s notice of contest, and were rejected bythe Fifth Circuit in May 1984. GM’s actions after the 1982 citation donot demonstrate that its initial noncompliance was willful.[[20\/]]Thus, we cannot conclude that the 1982 violation was willful.[[21\/]]Because the Secretary has agreed to abandon the claim that the 1984violations were willful if the determination is made that the 1982violation was not willful, we find that none of the violations should beclassified as willful.IV. _Whether the alleged violations should be termed de minimis_The basis for GM’s argument that these alleged violations are _deminimis_ is certain_dicta_ in a footnote to a Commission decisioninvolving a similar records access request. _Johnson & Johnson Products,Inc., _11 BNA OSHC 2097, 1984-85 CCH OSHD ? 26,988 (No. 81-1339, 1984).There, the Commission vacated citations issued to two companies fordenial of employee requests for access to exposure records on the groundthat the employees had only requested access to medical records. In therelevant footnote, the commission majority apparently concluded that,even if the employees had included exposure records in their requestsfor access, the employers’ failure to comply with these requests wouldonly have been a _de minimis _violation of the Act, because the purposeof the requests was to obtain records for use in WC proceedings and WCproceedings are unrelated to the safety and health purposes of theAct.[[22\/]]We must disagree with that _dicta_. Congress declared in the Act that WClaws serve a similar purpose to the Act:the full protection of American workers from job-related injury or deathrequires an adequate, prompt, and equitable system of workman’scompensation as well as an effective program of occupational health andsafety regulation . . . .Former 29 U.S.C. ? 676 (1971). (That section of the Act established aNational Commission on State Workmen’s Compensation Laws, charged withevaluating whether those laws were adequate, prompt, and equitable.)WC laws promote occupational safety and health because they provide asure financial recovery for an employee accidentally injured on the job,and make the employer responsible for paying the costs. _See S. G.Borello & Sons, Inc. v. Dep’t of Industrial Relations,_ 48 Cal. 341, 769P.2d 399, 406 (1989) (California WC law). The Federal LHWCA is acomparable WC law. _See Calbeck v. Travelers Ins. Co.,_ 370 U.S. 114,124, 82 S.Ct. 1196, 1202 (1962). That Act is designed to motivateemployers to provide \”the fullest measure of on-the-job safety\” fortheir employees._Bath Iron Works Corp. v. White,_ 584 F.2d 569, 575 (1stCir. 1978). _See also Alaska Packers Ass’n v. Industrial AccidentCommission of California,_ 294 U.S. 532, 541, 55 S.Ct. 518, 521 (1935).We therefore conclude that the purposes of the Act and of WC laws arecomplementary.We cannot adopt a general classification of _de minimis_ fornoncompliance with records access requirements, although a particulardeparture from the rule’s terms conceivably could be so minor as toqualify as _de minimis. _The Act’s recordkeeping requirements \”play acrucial role in providing the information necessary to make workplacessafer and healthier.\” _General Motors Corp., Inland Div.,_ 8 BNA OSHC2036, 2040-41, 1980 CCH OSHD ? 24,743, p. 30,470 (No. 76-5033, 1980).Employee access to medical and exposure records also can play a crucialrole in protecting the employee’s health. _See,_ _e.g.,_ _AmocoChemicals Corp.,_ 12 BNA OSHC 1849, 1852, 1856, 1986 CCH OSHD ? 27,621,p. 35,901 (No. 78-250, 1986) (employer had medical records indicatingthat employee had pleural effusion — a symptom of possible cancer –but failed to inform employee of condition).Lastly, we conclude that GM’s argument lacks merit because the requestsin these cases were not expressly limited to records relevant to the WCclaims, and the parties’ submissions do not show that only such recordswere covered by the requests. Havell had worked for GM for 20 years. GMdoes not dispute in this case that he was exposed to toxic substancesand harmful physical agents within the scope of the records access rule.Its job descriptions for the positions held by Havell show that he wouldhave been subject to exposure to carbon monoxide, welding smoke andfumes, dust from grinders, as well as noise from air hammers. Havellalso told OSHA’s inspector that he had been exposed to caustic chemicalsolutions in tanks near his work area. GM has not indicated that itattempted at any time to determine whether it has medical or exposurerecords relative to Havell that go beyond his lower back injury claim.For these reasons, the violations here are not properly classified as_de minimis._V._Whether the violations are serious_The judge found the violations to be serious because access to therecords covered by ? 1910.20 is \”paramount as a first step in avoidingserious illness and injury caused by exposure in the workplace to thetoxic substance.\” However, the record does not indicate what records GMhad relevant to Havell, or whether they related to a serious illness orinjury. No evidence was introduced that GM monitored the areas where heworked for toxic substances or harmful physical agents. As the Secretarynotes, the rule does not require employers to make records, but merelyto provide access to existing records. Thus, the issue is whether afailure to turn over records covered by the rule should be consideredserious _per_ _se._The definition of a serious violation under the Act is as follows:[A] serious violation shall be deemed to exist in a place of employmentif there is a substantial probability that death or serious physicalharm could result from a condition which exists, or from one or morepractices, means, methods, operations, or processes which have beenadopted or are in use, in such place of employment unless the employerdid not, and could not with the exercise of reasonable diligence, knowof the presence of the violation.29 U.S.C. ? 666(k). There have been divergent views expressed on whetherviolations similar to the violations we affirm here are serious underthe definition in the Act. In one case, an employer’s failure to pay formedical examinations was termed a serious violation of the inorganicarsenic standard (29 C.F.R. ? 1910.1018). _Phelps Dodge Corp, v. OSHRC_725 F.2d 1237 (9th Cir. 1984), _aff’ing,_ 11 BNA OSHC 1441, 1448-49,1983-84 CCH OSHD ? 26,552 (No. 80-3203, 1983). The court affirmed theCommission’s reasoning on the issue, stating:Phelps Dodge interprets the statute to require that to be serious, theviolation must potentially _cause_ physical harm. This interpretation iserroneous. Rather, the court looks to the harm the regulation wasintended to prevent, and if that harm is death or serious physicalinjury, a violation of the regulation is serious _per_ _se_.725 F.2d at 1240 (emphasis in original). In a later case, the Commissionheld that the fact that a regulation is designed to protect against aserious hazard does not make every violation of its provisionsserious._Duquesne Light Co.,_ 11 BNA OSHC 2033, 2038-39, 1984-85 CCHOSHD ? 26,959, pp. 34,602-03 (No. 79-1682, 1984) (isolated, one-dayasbestos removal operation involving excessive asbestos exposure was notshown to be sufficient to cause serious physical harm).Thus, a complex issue is presented. However, we do not find it necessaryto resolve the issue at this time, as its resolution here would notaffect the abatement requirements or penalties involved and none of theparties’ rights will be adversely affected by our decision not toresolve this issue. We hereby limit the effect of the judge’s findingthat the violations were serious to these cases. That finding is not tobe used, for example, as a basis for imposing greater liability on GM inany other case. Nor will the Secretary be constrained in other cases.The Secretary may propose appropriate penalty, classification andabatement requirements in any future citation, and may rely on theunderlying facts found here. Also, the union party’s rights under theAct are not prejudiced. (For example, the abatement date is unaffected.)There being no harm to any parties, the Commission exercises itsdiscretion not to decide the question of seriousness here._See,_ _e.g.,__Williams Construction Co.,_ 6 BNA OSHC 1093, 1095 1977-78 CCH OSHD ?22,325, p. 26,895 (No. 11526, 1977) (Commission need not decide whetherjudge erred in finding violation repeated, where penalty would beappropriate for nonserious violation); _Westburne Drilling. Inc._, 5 BNAOSHC 1457, 1977-78 CCH OSHD ? 21,814 (No. 15631, 1977). _See also_,_Leone Construction Co.,_ 3 BNA OSHC 1979, 1981, 1975-76 CCH OSHD ?20,387, p. 24,322 (No. 4090, 1976) (unreviewed part of judge’s decisiondoes not constitute binding Commission precedent).VI. _Penalties_Having found the violations non-willful, we conclude that a $1000penalty is appropriate for each case. Before the citations were amendedto allege willfulness, the Secretary had proposed a penalty of $480 forthe 1982 case and $1000 for each of the 1984 cases. After the amendment,the Secretary’s proposal was to assess $10,000 in each case. The maximumallowable penalty for either a serious or nonserious violation has been$1000 throughout these proceedings, under 29 U.S.C. ? 666(b) and (c)._Cf.,_ Omnibus Budget Reconciliation Act of 1990, Pub. L. No. 101-508, ?3101 (Nov. 5, 990) (OSHA penalty limits increased seven-fold).Penalties are to be assessed in light of the gravity of the violation,the employer’s size, good faith, and history of violations. 29 U.S.C. ?666(j). The gravity of the violations is substantial. As noted above,the cited provisions derive from an express requirement in the Act thatemployees have access to medical and exposure records concerning them.The purpose of that requirement is to allow employees to assess theirhealth and factors affecting it._E.g.,_ S.Rep. No. 91-1282 91st Cong.,2d Sess. 17 (1970), _reprinted in Legislative History of theOccupational Safety and Health Act, _157 (1971). Records access can playa crucial role in an employee’s protection of his or her health, asdiscussed above.Also, GM is among the nation’s largest corporations, and has a historyof violations. As to good faith, although we have found an objective,good faith basis for GM’s noncompliance, its failure to provide accessafter it knew that the requests were not limited to the subject of theWC claims does not indicate a high degree of good faith.Thus, the citation in each case before us is affirmed as a non-willfulviolation, and a total penalty of $3000 is assessed, representing $1000for each case.Velma MontoyaCommissionerDonald G. WisemanCommissionerDated: February 15, 1991————————————————————————SECRETARY OF LABOR,Complainant,v.ELECTRO-MOTIVE DIVISION,GENERAL MOTORS CORPORATION,Respondent.OSHRC Docket No. 82-0630_DECISION AND ORDER_Appearance:FRANCIS X. LILLY, Esq., Solicitor of Labor,JOHN SECARAS, Regional Solicitor,KENNETH HENRY, Esq., Office of the Solicitor,Chicago, Illinois forRaymond J. Donovan, Secretaryof Labor, U.S. Department of Labor, Complainant.Charles M. Chadd, Esq., Pope, Ballard, Sheppard& Rowle, Ltd.for Electro-Motive Division,General Motors Corporation, Respondent.Jerome Schur, Esq., Katz, Friedman, Schur & EagleAttorney for Local 719, United Automobile,Aerospace and Agricultural ImplementWorkers of America (UAW), theAuthorized Employee Representative.BOBRICK, JudgeThis proceeding was commenced pursuant to Section 10(c) of theOccupational Safety and Health Act of 1970, 29 U.S.C. 651,_et_ _seq._,(hereinafter referred to as the \”Act\”), wherein Respondent,Electro-Motive Division, General Motors Corporation, contested aCitation issued by Complainant, Raymond J. Donovan, Secretary of Labor,U.S. Department of Labor.[[1\/]]The Citation charged Respondent with a serious violation of theOccupational Safety and Health Standards, Subpart C-General Safety andHealth Provisions, 29 C.F.R. ?1910.20, entitled Access to EmployeeExposure and Medical records (hereinafter referred to as the\”Standard\”). The Citation alleged violations of 29 C.F.R. ?1910.20e(1)(i) and (e)(2)(1) [[2\/]] as follows:1A. 29 C.F.R. ? 1910.20(e)(1)(i): The employer did not, whenever anemployee or designed representative requests access to a record, assurethat access is provided in a reasonable time, place and manner but in noevent later that fifteen (15) days after the request for access is made:On March 18, 1982, the representative of William Havell requested accessto all of Mr. Havell’s medical records. None were provided.1B. 29 C.F.R. 1910.20(e)(2)(i): The employer did not, upon request,assure the access of each employee and designated representative toemployees exposure records relevant to the employees:On March 18, 1982, the representative of William Havell requested accessto all of Mr. Havell’s exposure records. None were provided.The Citation was issued as a result of an investigation prompted by acomplaint made by an employee to the Occupational Safety and HealthAdministration (hereinafter \”OSHA\”) concerning a denial by Respondent ofa request by the employee for his medical and exposure records._FACTS OF CASE_The relevant facts in this case are fairly straightforward and, to agreat extent, have been stipulated by the parties. [[3\/]]Electro-Motive Division, General Motors Corporation, is and at allrelevant times hereto was, engaged in a business affecting interstatecommerce, to wit, the manufacture of diesel engines and relatedactivities (Complaint, Par. Il and III; Answer, Par. II and III). At alltimes relevant to this matter, Respondent had kept and maintainedemployee exposure records and employee medical records as such terms aredefined by 29 C.F.R. ? 1910.20(c)(2)(5) and (6) (Stip. Par. 2).William Havell, an employee of Electro-Motive since 1962, and during alltimes mentioned herein, filed a claim against Respondent on or aboutApril 3, 1979, pursuant to the Illinois Workers’ Compensation Act (Stip.Par. 2, 3 and Ex. A and G). The employee subsequently filed an amendedclaim in September, 1982. The injury alleged by the employee in hiscompensation claim was for an injury to his lower back suffered onJanuary 24, 1979. This workers’ compensation claim was pending allduring relevant times involving these proceedings (Stip. Par. 3 andExhibit B). The employee retained a law firm to represent him withrespect to his claim for workers’ compensation benefits (Stip. Par. 4).In March 1982, the employee executed an \”Authorization for Release ofMedical Record Information Pursuant to 29 C.F.R. ? 1910.20\” authorizingthe release by Respondent of \”any and all medical and exposure records\”to the attorneys retained by him as his \”designated representative\” assaid term is defined by 29 C.F.R. ? 1910.20(e)(3) (Stip. Par. 6 andExhibit D). At the same time, the employee executed a \”Request forAccess to Medical or Exposure Records\” requesting that his designatedrepresentative, his attorneys, be provided access to \”all medical andexposure records\” (Stip. Par. 7 and Exhibit E). This request wasapparently made pursuant to 29 C.F.R. ? 1910.20 and to joint guidelinesdeveloped and agreed to by Respondent and the employees CollectiveBargaining Representative, such guidelines being entitled, \”GuidelinesImplementing the OSHA Standard on Access to Employee Exposure andMedical Records.\” The request was made on a form provided by theRespondent pursuant to these guidelines (Stip. Par. 5 and 7 and ExhibitsC and E). The stated purpose of the request for the records was\”investigation and legal representation\” (Stip. Par. 6 and 7, Exhibits Dand E). Nothing in the authorization or the request for access limitedthe use of the records sought by the employee or his attorneys (Stip.Par. 7).Copies of the above mentioned forms were sent by the employees’ attorneyon March 18, 1982 to Respondent along with a request for all of theemployees medical and exposure records. Said request was received byRespondent on March 19, 1982 (Stip. Par. 8 and Exhibit F). SubsequentlyRespondent, after obtaining a letter from its attorney advising it onmatters dealing with access to medical and exposure records under theStandard, refused to comply with the employees request and continues torefuse to comply with the aforementioned request (Stip. Par. 10, 11, Ex. H).Respondent had granted its other employees, and their designatedrepresentatives, access to medical and exposure records and hadguidelines for that purpose (Stip. Par. 5). For example, in 1982Respondent processed approximately ten requests for access in itsElectro-Motive Division and provided access in all but the present case(Stip. Par. 5). In this case, upon receipt of employee’s request foraccess, Respondent obtained a legal opinion from its counsel as to thevalidity of the request (Stip. Par. 5 and 11, Ex. H). Respondent’sCounsel’s opinion was that the request was invalid because it was madewhile the employee had a pending workers’ compensation claim, and thatit sought to gather information, by use of the cited standard, that wasdenied him under Illinois Law (Stip. Exhibit H). Respondent denied therequest and did not provide the employees attorney with the employeesmedical and exposure records (Stip. Par. 10).The laws in Illinois relating to injuries or diseases arising out of thecourse of employment are the Illinois Workers’ Compensation Act, Ill.Rev. Stat. Ch. 48, ?? 138 _et_ _seq.,_ and the Illinois OccupationalDisease Act, Ill. Rev. Stat. Ch. 48, ?? 172.36 et. seq. (hereinaftercollectively referred to as the \”Workers’ Compensation Law\”).The Illinois Workers Compensation Law does not provide for the type ofdiscovery usually associated with proceedings in the Federal DistrictCourts or before Administrative bodies such as the Occupational Safetyand Health Review Commission. However, both the Workers Compensation Lawand the rules governing practice before the Industrial Commission doprovide their own form of discovery.The Illinois Workers’ Compensation Law provides that the \”Commission …or…Arbitrator _shall _on written request of either party… issuesubpoenas for the attendance of such witnesses and production of suchbooks, papers, records, and documents as shall be designated in saidapplication…\” (Ill. Rev. Stat. Ch.48, ? 138.16). Moreover, Section 8of the Workers’ Compensation Law specifically provides for access tomedical records:Every hospital, physician, surgeon, or other person rendering treatmentor services in accordance with the provisions of this Section shall uponwritten request furnish full and complete reports thereof to, and permittheir records to be copied by, the employer, the employee or hisdependents, as the case may be, or any other party to any proceeding forcompensation before the Commission, or their attorneys. (I11. Rev. Stat.Ch. 48, ?138.8(a).This is a form of discovery for both parties (Tr. 86-88, 90, 91).Following the Workers Compensation Law are the rules governing practicesbefore the Industrial Commission. These rules provide for the issuanceof subpoenas to compel witnesses and\/or documents to be produced at timeof hearing (Resp. Ex. No. 1, Rule No. 3(4). Evidence dispositions can betaken before or after hearings; this includes the use of interrogatories(Resp. Ex. No. 1, Rule No. 3(5). Lastly a claimant \/employee must submithimself to an examining physician, as properly arranged by the employer(Resp. Ex. No. 1. Rule No. 2(10).As a result of Respondent’s refusal to provide the medical and exposurerecords to the employee, as requested, a complaint was filed with theComplainant alleging a violation of 29 C.F.R. ? 1910.20 _et_. _seq._ Aninspection was thereupon conducted of Respondent. A Citation andNotification of Penalty was issued on May 17, 1982, as a result of theinspection, alleging a two-part, single, serious violation of 29 C.F.R.?1910.20 and its subparts, along with a proposed penalty of $480.00(Complaint, Par. IV(c); Answer, Par. IV(c). Respondent duly contestedthe Citation, giving rise to this case. On August 3, 1982, pursuant toits request, the Authorized Employee Representative, Local Union 719,United Automobile Aerospace and Agricultural Implement Workers ofAmerica (UAW), was granted party status in this case.On June 10, 1983, the Complainant filed a Motion which sought to amendhis Complaint and the Citation to allege a Willful-Serious violation ofthe Act and the regulations promulgated thereunder. This Motion furthersought to amend the proposed penalty to $4,800.00. The Motion wasaddressed at the hearing held herein on June 22, 1983. By reason of thefact that both parties indicated that neither of them would alter orchange their planned introduction of evidence, whether the Motion wasgranted or not, (Tr. 8), the Motion was held in abeyance and taken underadvisement for later disposition at the conclusion of the case after allthe parties had filed their post trial brief and had an opportunity tobrief the issue (Tr. 8)._FINDINGS OF FACT AND CONCLUSIONS OF LAW_I._WHETHER THE SECRETARY’S MOTION TO AMEND HIS COMPLAINT _ _AND THE UNDERLYING CITATION AND NOTIFICATION_ _OF PENALTY SHOULD BE GRANTED _On June 10, 1982, 12 days before trial, the Complainant filed a Motionto Amend his Complaint, which in essence sought to change the nature ofthe alleged violation from serious to willful-serious, and which amendedthe proposed penalty to $4,800. Respondent objected to the amendment onthe grounds that the case had been pending for approximately a year, theamendment was proffered less then two weeks before trial, and that itseriously changed the nature of the case.We find that since the Complainant has the burden of proving, by apreponderance of the evidence, the existence of its allegations andsince both parties indicated that their proofs offered at hearing wouldnot be affected one way or the other by granting the amendment (Tr. 8),we see no prejudice coming to Respondent by allowing the filing of saidamendment.Case law is quite clear on the matter that in the absence of prejudice,motions to amend are to be freely granted. _Miller Brewing Co., _7 BNAOSHC 2.55, 1980 CCH OSHD ? 24,168 (1980); _United Cotton Goods, Inc.,_10 BNA OSHC 1389, 1982 CCH OSHD ? 25,928 (1982); _Brown & Root, Inc.,_ 8BNA OSHC 1055, 1980 CCH OSHD ? 24,275 (1980). Accordingly, Complainant’sMotion to Amend his Complainant is hereby GRANTED.II. _WHETHER 29 C.F.R. ? 1910.20 et. seq. VIOLATES SECTION _ 4(b)(4) OF THE ACT, 29 U.S.C. ? 653 (b)(4)Respondent raises as the principal issue in this case, and as itsprimary defense to the Citation, that enforcement of the cited standard,by way of the Citation, under the facts of this case runs afoul ofSection 4(b)(4) of the Act. Section 4(b)(4) specifically mandates that:Nothing in this Act shall be construed to supercede or in any manneraffect any workmen’s compensation law or to enlarge or diminish oraffect in any other manner the common law or statutory rights, duties,or liabilities of employers and employees under any law with respect toinjuries, diseases, or death of employees arising out of, or in thecourse of, employment.In its factual context Respondent raises the argument whether 29 C.F.R.? 1910.20, _et._ _seq.,_ \”on access to employee records can validlypermit an employee with a pending workers’ compensation claim to haveaccess to his employer’s medical and exposure records for use asdiscovery in that case at a time when he is denied those records understate workers’ compensation law.\”Respondent essentially argues that the Illinois Workers Compensation Lawdoes not permit pretrial discovery by one party, the employee in thiscase, against the other, that being the Respondent; and that if theemployee (or his attorney) is allowed use of 29 C.F.R. ? 1910.20 to gainaccess to these records, the employee would be granted a right that isdenied him under Illinois compensation law and give him an unfairadvantage not otherwise provided for in the Workers’ Compensation Law.Respondent views the employee obtaining his medical and exposure recordsunder 29 C.F.R. ? 1910.20 prior to the compensation hearing, when as italleges there is no such right available under the Illinois Workers’Compensation Laws, as the granting of a right that\”would upset the careful balance that exists in the Illinois law in thetrial of workers’ compensation cases and would grant rights to employeesthat they do not possess under state compensation law.\”Respondent sites his expert witness in compensation law as support forthis effect (Tr. 80, 81, 89). Thus goes Respondents argument that torequire it to produce the medical and exposure records would run againstthe very prohibition of Section 4(b)(4) of the Act since allowing therequest for access in this case would both enlarge the rights ofemployees and diminish the rights of employers under the Workers’Compensation Law. This in Respondent’s mind is a preemption of state lawrelating to workman’s compensation. Respondent in support of itsargument cites: _United Steelworkers of America v. Marshall, _647 F. 2d1189, 1235-36 (D.C. Cir. 1980); _cert._ _denied,_ 453 U.S. 913 (1981).We disagree with Respondent’s position for several reasons.The thrust of Respondent’s argument in this case is that the citedStandard upsets what it perceives as a balance struck by the IllinoisWorkers’ Compensation Law between employers and employees, and thusapplication of the Standard violates the underlying enabling statute.The Standard does this, according to Respondent, by granting rights toemployees which they do not have under Illinois law. We fail to see thisresult.In finding our way in resolving the issues herein it is important tostart at that modicum of legislative history that might impact upon ourunderstanding of the full implications of Section 4(b)(4) of the Act. Itappears that all that is known about 4(b)(4) is that at the time of thepassage of the Act, all fifty states had legislated some form ofworkers’ compensation system that applied to work related accidents andinjuries (A. Larson, _1 Larson’s Workmen’s Compensation, Desk Edition,_Section 5.30, at 2-17 (1980 with 1983 Cumulative Supplement). We seethat Congress, being concerned about state workers’ compensationbenefits, had no intention of infringing upon states’ rights in thisarea; and this is about all we know about Congress’ intentions. (_See,__e.g._, S. Rep. No. 1282, 91st Cong., 2d Sess. 2 (1970), at 18 and note55 at 25; _Legislative History of the Occupational Safety and Health Actof 1970,_ 92nd Cong., 1st Sess. (June, 1971) note 53 at 165).The United States Court of Appeals, in _United Steelworkers of America,AFL-CIO-CLC v. Marshall, et al.,_ 647 F. 2d 1189 (D.C. Cir. 1980),_cert._ _denied, _101 S. Ct. 3148 (1981) examined Section 4(b)(4) in thecourse of its review of the Secretary’s newly promulgated lead standard(29 C.F.R. ? 1910.1025, _et._ _seq.)_. Finding the legislative historyto be of little value in its review of this section (647 F. 2d, at n.70, 1234), the Court proceeded to seek the best reading of the section.The Court followed this path as a result of its opinion that a literalreading of it would indicate that \”any health standard that reduces thenumber of workers who become disabled will of course ‘affect’ and even’supersede’ workers’ compensation by ensuring that those workers neverseek or obtain workmen’s compensation benefits\” (647 F. 2d, at1234-1235). What the Court did recognize here, as a general proposition,was that almost everything associated with the Act would have somepractical effect on state workers’ compensation laws.The court then turned its attention to just \”what does Section 4(b)(4)mean,…\” 647 F. 2d at 1235. The Court in this regard stated:We see two plausible meanings. First, as courts have already held,Section 4(b)(4) bars workers from asserting a private cause of actionagainst employers under OSHA standards. _Jeter v. St. Regis Paper Co.,_507 F. 2d (5th Cir. 1975); _Byrd. v. Fieldcrest Mills, Inc., _496 F. 2d1323 (4th Cir. 1974). Second, when a worker actually asserts a claimunder workmens’ compensation law or some other state law, Section4(b)(4) intends that neither the worker nor the party against whom theclaim is made can assert that any OSHA regulation or the OSH Act itselfpreempts any element of the state law. For example, where OSHA protectsa worker against a form of disablement not compensable under state law,the worker cannot obtain state relief for that disablement. Conversely,where state law covers a wider range of disablements than OSHA aims toprevent, an employer cannot escape liability under state law for adisablement not covered by OSHA. In short, OSHA cannot legally preemptstate compensation law, even if it practically preempts it in somesituations. (647 F. 2d, at 1235-1236)The Court concluded that although the lead standard’s Medical RemovalPrograms may \”have a great practical effect on workmens’ compensationclaims, it leaves the state schemes wholly intact as a legal matter, andso does not violate Section 4(b)(4).\” 647 F. 2d at 1236. The Court thustook the position that only substantive intrusions into state workers’compensation laws would be violative of Section 4(b)(4). We likewisewill follow this general principal. As will be discussed below we failto find any substantive intrusions into the Illinois Workmens’Compensation Laws, as argued by Respondent, which would justify ourfinding any involvement of Section 4(b)(4) in the enforcement of theCitation herein. At best Respondent’s claim rest upon a procedural rulehaving little, if anything, to do with the basic rights and obligationswithin the Workmans’ Compensation Law, and has little impact upon thedisposition of a workman compensation claim which may go to hearing.Respondent makes much of the proposition that some documents used at aworkman’s compensation hearing are only available to each party at the\”time of hearing\” and not before. In Respondent’s view \”the IllinoisWorkers’ Compensation Laws do not permit pretrial discovery by one partyfrom the other,\” and that \”the OSHA rule on access to records cannot beused to override rights existing under state workers’ compensation law.\”We find that the facts of this case and the implications reached fromthese facts are not consistent with Respondent’s view.Under the rules governing practice before Illinois IndustrialCommission, subpoenas for documents, depositions and interrogatories,prior to trial are allowed (Ex. R-1, Rules 3-(4) and (5). Anotherexample of prehearing discovery is Commission Rule No. 11-(7)(A)(3) and(C). This rule requires that, where an employer claims insufficientinformation to determine liability for the payment of temporary totalcompensation, said employer shall have the responsibility of seeking outsaid information. The employee is required to provide the appropriateauthorizations to the employer to facilitate this release of medicalinformation (Resp. Ex. No. 1). Additionally, the statute empowersemployers to require employees to undergo physical examinations, at theemployer’s expense, and receive the results from said examination. Allof which is prior to hearing (Ill. Rev. Stat. Ch. 48, Sections 138.12and 19(c). True, Illinois Workmens’ Compensation Law does provide forthe production of some documents only at time of hearing but theseprovisions have the sole purpose of making sure that \”the process andprocedure before the Commission (shall) be as simple and summary asreasonably may be.\” (Ill. Rev. Stat. Ch. 48, Section 138.16). Lastly, ofcourse, Section 8 of the Illinois Workmans’ Compensation Lawspecifically provides for access to medical records, without anyreference to the date of the compensation hearing.In view of the prehearing discovery allowed under the Worker’sCompensation Law, among its other provisions, Respondent’scharacterization that the timing of the production of a medical recordis some sort of substantive right rings a hollow note; we believeRespondent incorrectly eschews what is clearly a minor procedural matterso as to achieve a particular result herein. This we find isparticularly true since as a matter of custom and practice in workman’scompensation proceedings the very documents which now forms the basis ofthis case are generally exchanged by parties prior to the compensationhearing (Tr. 90-91).We fail to find any substantive intrusions, as a matter of fact and law,into the Illinois Workmens’ Compensation Law, as alleged by Respondent,(or otherwise under any other set of facts), in having an employercomply with the cited Standard. Looking directly to the Standard we findan absence of any provision providing workers with greater or lesserbenefits in state workmen’s compensation claims, nor can such an effectbe attributed to this Standard. Additionally, we find no provisionproviding benefits for illnesses and injuries not recognized under somestate’s workers’ compensation laws. The only right that is provided bythe cited Standard is the right of an employee to control his owndestiny by granting him the tools through which he can ascertain whateffects his work environment may have had, is having, or will have, onhis body.True we do find some practical effects upon the timing of the exchangeof some documents that _may_ or _may not_ be used in a workmancompensation hearing, but as a matter of law, this has no substantivesignificance whatsoever and is nothing more than incidental in nature.Indeed the Courts recognize that the Standard may have some practicalaffect on compensation laws, but that this is of no legal significancesince the cited Standard, as written and as enforced, leaves theUnitedSteelwor compensation law wholly intact. _United Steelworkers ofAmerica,AFL-CIO-CLC v. Marshall, et al, supra,_ at 1236. Additionallythe Courts have recognized that incidental intrusions into other areasof interest, resulting from compliance with the Standard, does notaffect the validity of the Standard or render the Standard unenforceableor flawed. This is so because the Standard \”is a duly authorizedregulation, reasonably related to its underlying statute\”…and its goalis to promote healthful working conditions.\” _Louisiana ChemicalAssociation v. Bengham et al,_ 550 F. Supp. 1136, at 1145 (W.D. La.1982), affirmed 731 F. 2d 280 (5th Cir. 1984).Within a practical setting it is interesting to note, as abovementioned, that the early production of the documents, which Respondentso dearly and assiduously claims to be a violation of Section 4(b)(4)are, prior to the hearing, customarily exchanged between the parties(Tr. 90, 91).The obvious conclusion to be drawn is that enforcement of 29 C.F.R. ?1910.20 does not violate Section 4(b)(4). Although there may be somepractical affects on state workers’ compensation proceedings, and inthis case such practical affects appear minimal, the early production ofthe requested records by way of the Standard has no substantive effectswhatsoever. The Standard grants to parties under Illinois law no greaterrights than already possessed. Respondent’s argument that 29 C.F.R. ?1910.20 is in violation of Section 4(b)(4) of the Act, as a matter oflaw, is found in error.Respondent makes much of the fact that the employee, who had requestedhis medical or health records, had filed a workmens’ compensation claimfor an injury to his back…and that he would get and use the records,prior to the compensation hearing.Indeed, Respondent’s arduously proclaims that by reason of this, to findthe Standard enforceable and require production of the medical recordsto the employee\/claimant, would be tantamount to making employers\”helpless\” in preparing their defenses to claims, thus \”materiallychanging the structure and fabric of Illinois Law\” and finally creatinga \”one sided proceeding\” violating \”the dictates of due process of law.\”We find it difficult to grasp the enormity of the situation, asproclaimed by Respondent, for several reasons. First, as abovementioned, there is significant pre-hearing discovery provided by theIllinois Compensation Law and Rules Governing Practice used before theIndustrial Commission hearing these cases (pp. 12, _supra_). Secondlyeven assuming, arguendo, that everything Respondent claimed the employeewas going to do with the records he in fact did do, and the employee hadgained an advantage, we would still, nonetheless, find Respondent’sargument without persuasion since the Courts have recognized that suchadvantage is incidental and of no legal consequence when looking to thepromotion of healthful working conditions under the Standard and Actitself. _Louisiana Chemical Association v. Bingham et al, supra_ at1145[[4\/]]. Lastly Respondent’s argument carefully omits or glosses oversome of the vital facts of this case, and the practical and significantramifications which would result if we were to acquiesce to it’s argument.Looking to the record of this case, we find respondent carefullyomitting any reference to the fact that the employee from the startrequested both his \”medical and exposure\” records (Stipulation of Fact,Para. 7 and 8, Ex. D, E, F). Respondent’s response to this request wasthat _no _documents of any kind were to be provided to the employee, andindeed none were provided (Stipulation of Fact, Para. 10, 11, Ex. H). With respect to Respondent’s failure to provide exposure records, theserecords hardly seem relevant to a back injury claim. Health recordswhich might show health problems by reason of exposure to toxicsubstances is also hardly a type of record which might relate to anemployee’s back injury. That the employees request was made solely forthe purpose of getting medical records for use in his compesation caseis not clear from this record, and was certainly _not _definitely knownto Respondent. [[5\/]] The request came approximately three years afterthe filing of the workmans’ compensation claim. The employee informedthe Compliance Officer who investigated the case of his carobn monoxideexposure (Tr. 37). He complained of chemical exposure in his complaintto OSHA. He worked near tanks holding caustic chemicals and was exposedto welding fumes (Tr. 37,44).It would hardly seem reasonable to any fair minded person that under thecircumstances of this case, General Motors Corporation is a \”helpless\”employer, as it characterizes itself, being put through the paces by anemployee who, for whatever reason, sought to obtain his medical andexposure records, as did the employee in this case. Respondent’s logicseems a bit askew in its position that the Illinois law on workmens’compensation would be turned on its head if enforcement of the Standardallowed for an employee to get his medical and exposure records prior toa compensation hearing which involved a back injury. If anything, it isthe cited Standard that is being set upon when an employee, whocomplains of exposure to carbon monoxide and other chemicals, is deniedhis medical and exposure records solely by reason of the fact that threeyears earlier he filed a workmans’ compensation claim for a back injury.We find the actions of Respondent in this regard most egregious sinceonly a part of the records sought by the employee might have had somerelevance to the workmans’ compensation claim. We can not find any realpractical disadvantage to the Respondent, of any significance, by way ofthe employee having access to its own medical and exposure records priorto the compensation hearing date.As above discussed we do not find any legal or factual significance inthe application of Section 4(b)(4) by reason of the requested documentsbeing provided under the cited Standard, albeit that part of saiddocuments might possibly being used later in a workmens’ compensationproceedings. Quite the contrary, we would find considerable harm done tothe purposes of the Act, the rights of the employee, and the benefitsdue him under the Act if we were to apply Section 4(b)(4), as argued byRespondent. In reaching our conclusions that 29 C.F.R. ? 1910.20 doesnot violate Section 4(b)(4) of the Act, we find a rather significantsynergistic practical result involving and combining attainment of thepurposes of the Act with providing an employee with a timely method torecognize occupational dangers to his health and whether he had indeedsuffered adversely from the effects of his exposure to the hazardousoccupational safety or health condition. We find, in rejectingRespondent’s argument, a practical and equitable result, comporting withfundamental fairness and ordinary due process.The employee access rule, 29 C.F.R. ? 1910.20 _et seq._, is essential togenerate information called for by key provisions of the Act. As theHouse Committee stated, \”[a]dequate information is the precondition forresponsive administration of practically all sections of this bill.\” 45Fed. Reg. 35245. Adequate standards cannot be formulated by OSHA withoutthe participation of employees, whose firsthand experience is frequentlycritical to bringing a hazard to the attention of OSHA under 29 U.S.C.657 (f)(1). 45 Fed. Reg. 35245. To participate, employees need allavailable information about hazards in their workplaces. Employeeparticipation in achieving safer, healthier workplaces is crucial since,as the Supreme Court has recognized, \”OSHA inspectors cannot be presentaround the clock in every workplace.\” _Whirlpool Corp. v. Marshall,_ 445U.S. 1, 13 (1979). This is particularly true at the present time whengovernment emphasis is off regulatory enforcement. Currently there ismore of an onus upon the employee to be on the alert for occupationalsafety and health hazards so as to avoid their dangers. Uninterruptedaccess to ones own exposure and medical records could not be moreimportant to the employees well being, especially in a time whenexposure to exotic and unusual chemicals have an effect upon individualsonly discernable through close medical observations. [[6\/]]As pointed out by the Authorized Employee Representative in its Brief,if we were to look at the problem in its practical _day to day _and _onthe job_ setting, to allow Respondent’s position would produce anomalousresponse. For instance, an employee denied access to his medical andexposure records would not be able to decide intelligently whether toseek medical treatment for suspected injuries other than those of theworkmans’ compensation claim. A worker under Respondent’s proposedinterpretation would be denied information concerning his exposure totoxic materials at least for the duration of his claim, includingappeals, or until the Illinois three year statues of limitations hadrun. An employee with an injured back would be unable to learn whetherhe had been exposed to asbestos or other toxins. Family members who mayhave been exposed to toxic material, through contact with the employee,would be deprived of all knowledge necessary to seek treatment underRespondent’s rule.Finally, as argued by the Authorized Employee Representative, to followRespondent’s argument on no access would in essence harm workplacehealth and safety by denying necessary information to all employees whohappened to have a workers’ compensation claim. Such a claim could bepending for years. During this time the Employer could deny his employeecrucial knowledge affecting medical treatment — even for conditionswholly unrelated to the compensation claim. For instance, an employeewith a claim pending for a finger injury could be denied informationabout exposure to toxic chemicals affecting his lungs. This informationmight be needed by the employee’s treating doctor. In effect an exposedemployee or a sick employee would have to choose between his Statesanctioned compensation claim or his health. To follow Respondent’sargument and interpretation of Section 4(b)(4) would in effect be adanger to employees who have compensation claims pending and who neededaccess to medical records for other occupational safety and health matters.Respondent’s approach would lay the Act’s procedures open to cynicalgamesmanship in which a worker with a compensation claim is forced tochoose between filing the compensation claim or seeking access to hismedical and exposure records. Thus Respondent’s attitude would chillworkers’ compensation remedies mandated by Illinois Law …which initself could be said to be a substantive diminishment of compensationlaws on employment injuries. Frankly we find this situation more of alegal and practical reality than the one forwarded by the Respondent asallegedly impacting on substantive rights under the Workmans’Compensation Law.While Respondent portrays the employee who requested his medical andexposure records as an individual who seeks an advantage in a workmens’compensation hearing, we see it otherwise when looking to the totalityof the situation. We see Respondent’s actions as a definitive effort todisenfranchise the employee from the benefits of the Act by prohibitinghim, and other employees similarly situated, from access to their ownmedical and exposure records if they choose to file a workmans’compensation claim. The fact that an employee may get its medicalrecords earlier then Respondent believes he should pales thin in lightof the practical effects on the ability of the employee to recognizeoccupational safety and health hazards discernable only through themedical and exposure records. We do not find that depriving the employeeof this substantial and important adjunct to effective occupationalsafety and health hazard recognition, as obtainable under 29 C.F.R. ?1910.20, is consistent with any reasonable interpretation of the Act orthe Illinois Workmens’ Compensation Law.[[7\/]]_SUMMARY _Illinois Workman Compensation legislation seeks to provide employeeswith \”prompt and equitable compensation for their injuries\” and with\”efficient remedies.\”_Kelsay v. Motorola, _74 Ill. 2d 172, 180-81, 384N.E. 2d 353, 356-57, 23 Ill. Dec. 559, 562-63 (1979). No part of theIllinois workers’ compensation statute forbids employees access to theirown medical and exposure records, and Respondent has cited no suchstatutory authority for that position (Resp. Br. pp. 12-14). We fail todicern timely employee access to records as having any damage, in anyway, on the Workers’ Compensation Law dealing with compensatingemployees for all accidental injuries arising out of their course ofemployment or upon the employer ability to defend such claims.Compliance with an employee’s records request cannot possibly be used toforce compensation where it is not warranted, and that is the simpletruth of this case.Liabilities of an employer to pay compensation for injuries are notincreased by employee’s access to records under the Standard. There isno change of substantive rights under the Standard. There are no newcauses of action created. There are no additional bases for recoveryallowed. The number of weeks of compensation allowed by Illinois is notincreased. Because there is no substantive change in employees rights,Section 4(b)(4) is not involved let alone contravened. No disclosureresulting from employee access under the cited Standard can affect theemployer’s legal burden, which is to compensate for injuries covered bythe Illinois statute. In exchange for the Illinois Workman’sCompensation Law’s denial of common law tort defenses, the amount ofemployer’s liability is limited by statute to a strict schedule. Accessto records, therefore, cannot affect whether the Worker’s CompensationLaw would regard an employer as liable for compensation or amounts to bepaid if liability is determined.Respondent’s claim that pre-hearing access by both parties to therecords, that it alone presently possesses, would somehow \”upset thebalance\” of workers’ compensation seems disingenuous at best (_See_Resp. Br. p. 17). The \”balance\” enacted by workers’ compensation law isone in which employer and employee each gave up tort claims and defensesin favor of the certainty of a statutory schedule. _Kelsay v. Motorola,_74 Ill. 2d 172, 384 N.E. 2d 353 (1979). Employee access to medicalrecords cannot affect this statutory balance, especially in view of thefact that the Illinois Workmens’ Compensation Law, as well as the Rulesof Practice before the Illinois Workmens’ Compensation Commission,provide for significant pre-hearing discovery, as above discussed.Accordingly, we find no enlargement, or affect in any manner, by theStandard on the common law or statutory rights, or duties of theworkmens’ compensation laws and as such reject Respondent’s argumentsthat Section 4(b)(4) has application in this case.III. _WHETHER RESPONDENT VIOLATED__29 C.F.R. ? 1910.20(e)(1)(i) and (e)(2)(i)_In the present case it is undisputed that the individual making therequest for medical and exposure records was an employee of Respondent.Moreover, there is no dispute that Respondent failed to provide theemployee, through his authorized designated representative, access tothe employee’s medical records and exposure records, although itacknowledged that such records did exist. The facts show that theguidelines implemented by the Respondent to govern such access werecompiled with by the employee or his representative. Moreover, theemployer’s guideline did not contain a prohibition against the releaseof such information to an employee who had a pending workmen’scompensation case against the Respondent (see generally _Stipulation ofFacts and Admissibility of Documents_ and the Exhibits attached thereto).In the absence of any statutory or regulatory infirmity, it is evidentthat the request of the employee’s designated representative fell withinthe purview of the standard and was in conformance with Respondent’s ownguidelines therein. Respondent’s failure to provide access to theemployee’s designated representative of the requested medical recordsand exposure records is found violative of 29 C.F.R. ? 1910.20(e)(1)(i)and (e)(2)(i).Since Respondent’s failure to comply with the Standard involvedsignificant safety and health considerations, we find the violation tobe serious in nature, within the meaning of Section 17k of the Act. (Seepp. 18-20 _supra_). To better understand the serious nature of theviolation resulting from Respondent’s actions, it bears repeating whathad been earlier stated about the importance of speedy and uninterruptedcompliance with the standard.In the case of Uniroyal, Inc. 1983 CCH OSHD ? 26,439, we stated:\”Speedy and ready access to this information by employees, or theirdesignated representative, is paramount as a first step in avoidingserious illness and injury caused by exposure in the workplace to thetoxic substance. The action of Respondent in delaying and hinderingaccess of the employee to this vital information, which is made readilyaccessible by reason of the records access regulation, represents asignificant hazard to the safety and health of employees.\” (slipopinion, p.14)The Citation alleging a serious violation will accordingly be affirmed. _IV. WHETHER THE SERIOUS VIOLATION OF_ _29 C.F.R ? 1910 20 ET SEQ CONSTITUTED A_ _ WILLFUL VIOLATION OF THE ACT_The Complainant in this case alleged that the conduct of Respondent indenying access to an employee of his medical and exposure records, asprovided by 29 C.F.R. ? 1910.20 _et seq._ was willful in nature since itinvolved a conscious and deliberate act to disregard the standard withfull knowledge of what conduct was required under the standard. TheRespondent, on the other hand, maintains that even though it deniedaccess of the records such denial was neither indifferent to nor indisregard of the regulation’s requirements. Respondent points out thatonce it received the employee’s request, it sought and followed theadvice of its attorney; its counsel’s advice was that the accessregulation could not validly permit access to medical and exposurerecords while a workers’ compensation claim is pending.Respondent argues that an action cannot be willful unless it is taken\”in disregard of the action’s legality,\” citing _P.A.F. EquipmentCompany, Inc., supra; Intercounty Construction Co. v. OSHRC,_ 522 F. 2d777, 779-80 (4th Cir. 1975), _cert_. _denied,_ 423 U.S. 1072 (1976);_Donovan v. Capital City Excavating Co.,_ 712 F. 2d 1008, 1010 (6th Cir.1983). Respondent goes on to argue that it did not act in disregard ofthe legality of its action. In fact, by seeking an opinion from itscounsel, it took the most positive-good faith-step it could have takenwith regard to determining the legality of its action and as such actedin good faith. Respondent cites, as support for this position 52 Am. Jr.2d at pp. 236-37, and _Lacey v. Porter, _37 ? 635, 637 (Cal. 1894) inwhich the court stated:\”taking the advice of counsel, …. tends to show good faith and honestmotives and the absence of malice…\”Respondent further relies on the Commission’s ruling in _Mel JarvisConstruction Company, Inc.,_ 10 BNA OSHC 1052, 1053, 1981 CCH OSHD25,713 for the proposition that \”a violation cannot be willful if theemployer had a good faith opinion that the condition in questionconformed with the requirements of the standard.\”While Respondent argues that its actions were based on a legalinterpretation and guidance from its counsel, and as such if there was aviolation of the Act it most assuredly by reason of this was not willfulin nature, we find the Complainant drawing us to the specific facts ofthe case, maintaining that Respondent’s knowing refusal amounted to awillful violation.Looking to applicable case law we find that the majority of courts havefound a willful violation as one involving voluntary action, done eitherwith an intentional disregard of, or plain indifference to, therequirements of the statute. _Georgia Electric Company v. Marshall, _595F. 2d 309 (5th Cir. 1979); _Western Waterproofing Company v. Secretaryof Labor,_ 576 F. 2d 139 (8th Cir. 1978); _Intercounty Construction Co.v. OSHRC, _519 F. 2d 1200 (3rd Cir. 1975). None of these cases requirethe showing of a bad motive in order to prove willfulness. Thus, aviolation is willful when it is intentional, knowing or voluntary, _C.N.Flagg & Company, Inc.,_ 1974-1975 CCH OSHD ? 18,686 (R.C. 1974); orinvolves an element of indifference to the law._F.X. MessinaConstruction Corp. v. OSHRC,_ 505 F. 2d 701 (1st Cir. 1974).With all due respect to Respondent’s counsel, we cannot allow Respondentto hide behind asserted legal defenses as a shelter from conscious andintentional defiance of the law. Respondent ran the risk that itsstrained interpretation of the access regulation would prove to be wrongand must now bear the consequences of that risk. As a casual, butclairvoyant, observer of life once said, \”you pays your money and youtakes your choice.\” Respondent made its choice in denying its employeessignificant and important health and safety benefits in choosing not tocomply with the standard. In doing so it singled out a particularsegment of its employee population. . . i.e., those who had filed aworkman’s compensation claim against it. We find the impact andimplication of this choice of action by Respondent all but too clear; wesee these actions of Respondent as deliberate in meaning and purpose.Those employees who were engaged in workmen’s compensation claims wouldbe dispossessed from and denied the benefits of 29 C.F.R. ? 1910.20_et.__seq._ We reach the conclusion that this was Respondent’s purpose andthis was Respondent’s intention.I will not re-review Respondent’s flimsy rationale of the sins of anemployees’\/claimant’s early access to his medical or exposure recordswhich would be garnered through an employer’s compliance with the citedstandard; this being, according to Respondent, as a just and decentreason for finding other then a willful violation of the Act or forfinding no violation at all. I merely look to the totally of situationin which an employer refuses _all _medical and exposure records to anemployee who files a workman’s compensation claim, regardless of thenature of the claim and the extent of the health and exposure records.In the instant case we have an employee who’s workman’s compensationclaim involved a back injury. This employee, a long-term employee ofRespondent, held many different jobs in many different areas ofRespondent’s facility. While he complained of exposure to carbonmonoxide, who can say what other unsafe or unhealthful conditions he mayhave been exposed to during the course of his employment. His jobhistory reveals that he has been exposed to all areas of the facilityand to such dangerous substances as welding smoke and fumes, dust fromgrinders and noise from air hammers (apparently during the period he wasFitter Locomotive), bulk oil, acids, carboids, coolants, grease,gasoline and other inflammable materials (as a stockkeeper), paint, dustand dirt (as Service work – Class \”B\”), exhaust fumes (asTrucking-Automatic), noise from engine test and air hammers (as CribAttendant) (Stip. ? 8 and Ex. G). Without the requested records thisemployee is severely handicapped in his attempt to determine whatoccupational dangers to his health have been or are now present.In this case we are not dealing with an employer who held back a portionof a medical record dealing with the subject matter of a workmen’scompensation claim, and then claiming the good faith belief in theapplication of Section 4(b)(4). Perhaps under these circumstances wewould find that the violation was other then willful. But this is notthe case herein. The cold hard facts are that Respondent refused _allmedical_ and _exposure_ records to an employee who had engaged it in aworkman’s compensation proceeding. It refused access to exposure recordswhen such were obviously not a part of the workman’s compensationproceeding; it refused access to medical records having nothing to dowith the nature of the injury involved in the compensation claim. Wefind the underlying message of Respondent’s to its employee’sdiscernable and decisive — don’t file any workman’s compensationclaims if you want access to your medical and exposure records–don’tseek the relief provided under the Standard if you file a workman’scompensation claim.Notwithstanding Respondent’s argument made herein, we find thatRespondent fully and deliberately chose to disregard the requirements ofthe Act and thwart compliance with 29 C.F.R. ? 1910.20 _et._ _seq._[[_8_\/]] We find that Respondent’s actions were purposeful in naturedesigned to achieve a predictable result. Accordingly we find inRespondent’s actions an intentional and knowing conduct designed toavoid compliance with the Standard and as such is determined to bewillful in nature. The Citation will thus be affirmed as aWillful-Serious Citation._PENALTY_In this case we are involved with a standard that for employeesrepresents the most effective and expedient means for learning whetheror not they are or have been exposed to unsafe or unhealthful workconditions, and whether these work conditions are or have been effectingtheir health.The facts of this case rather plainly speak for themselves showing thatRespondent purposefully denied to certain of its employees the benefitsof the Standard. Respondent, contrary to the agreements reached with theemployee’s Collective Bargaining Representative on access to medicalrecords, began a program of singling out those employees who filed outworkmen’s compensation claims to deny them benefits of this mostimportant standard.We find it more than coincidental that Respondent’s refusal to allowaccess to medical or exposure records involved only those employees whofiled workman’s compensation claims. We find it more then coincidentalthat the refusals for access followed the ostensible obtaining of legaladvise claiming involvement of Section 4(b)(4) of the Act, when in fact,none obviously existed. It is more then coincidental that all medicaland exposure records were denied, whether they related to the subjectmatter of the workman’s compensation claim or not.We have found Respondent’s actions willful in nature since they were,deliberate, intentional and in complete disregard of the mandatedpurpose of the cited standards. But we find more than that in this case.Respondent’s action went beyond intent; they were purposeful in natureaimed at the identifiable segment of its workforce, and solely designedto burden or discourage employees who might seek redress for injuriesunder the States Workmen’s compensation law by denying them benefitsobtainable under the Standard. Respondent’s conduct placed employees inthe untenable position of having to chose between the benefits of theAct, as provided under the cited Standard, or continuation of theirworkman’s compensation claim. These egregious actions of Respondent notonly tore at the basic fabric of the Act, but by their very naturesought to suborn the Acts remedial purposes. After considering thosefactors setforth in section 17(j) of the Act, the above mentioneddiscussion, and considering the record as a whole, we find itappropriate to assess a civil penalty of $10,000.00._ORDER_Based upon the foregoing Findings of Fact and Conclusions of Law, as setout in my_Decision and Order_, and for good cause shown, it is ORDERED:1. That item 1A and 1B of the Willful-Serious Citation is AFFIRMED.2. A penalty of $10,000 is assessed.Edward A. BobrickJudge, OSHRCChicago, IllinoisDATED: March 19, 1985————————————————————————FOOTNOTES:[[1\/]]Chairman Foulke took no part in the consideration or decision ofthis case.[[2\/]]The section provides in full:Nothing in this Act shall be construed to supersede or in any manneraffect any workmen’s compensation law or to enlarge or diminish oraffect in any other manner the common law or statutory rights, duties,or liabilities of employers and employees under any law with respect toinjuries, diseases, or death of employees arising out of, or in thecourse of, employment.[[3\/]]At the time of the alleged violation, the cited provision stated:? 1910.20 _Access to employee exposure and medical records._(e) _Access to records_-(1) _General_. (i) Whenever an employee ordesignated representative requests access to a record, the employershall assure that access is provided in a reasonable time, place, andmanner, but in no event later than fifteen (15) days after the requestfor access is made.The records access rule was amended in 1988. _Final Rule: Access toEmployee Exposure and Medical Records,_ 53 Fed. Reg. 38,140 (Sept. 29,1988). However, those amendments have no effect on these cases.[[4\/]]At the time of the alleged violation, that provision stated:(e) _Access to records–_(2) _Employee and designated representative access_ – (i) _Employeeexposure records._ Each employer shall, upon request, assure the accessof each employee and designated representative to employee exposurerecords relevant to the employee….[[5\/]]Also, GM stipulated that \”for purposes of this case only\” it wouldnot contest the Secretary’s allegation that Havell was exposed to toxicsubstances or harmful physical agents within the meaning of 29 C.F.R. ?1910.20. (Access to records under the rule must be provided onlyregarding employees exposed to those hazards.)[[6\/]] The court stated that the legislative history of the Act containsessentially nothing about ? 4(b)(4), and that the provision is \”vagueand ambiguous on its face.\” 647 F.2d at 1234 and n. 70. The court notedthat any OSHA health standard might have some practical effect on WCclaims — by reducing the number of accidents and claims, for example.It held that Congress did not intend to prohibit such practical effects.Instead, the court saw two plausible meanings for ? 4(b)(4) — it bars(1) a private cause of action by employees against employers under OSHAstandards, and (2) claims in non-OSHA cases (including WC cases) broughtby employees that the Act or regulations thereunder preempt any elementof the applicable law.[[7\/]] The IIC has the same jurisdiction, powers and duties under bothActs. _Id.,_ ? 172.48.[[8\/]] Statutes should be construed so as to avoid a conflict betweenthem, if possible. _See, e.g., H. P. Welch Co. v. New Hampshire,_ 306U.S. 79, 85, 59 S.Ct. 438, 441 (1939);_Ray v. Atlantic Richfield Co.,_435 U.S. 151, 157, 98 S.Ct. 988, 994 (1978).[[9\/]] GM presented testimony from Ralph W. Miller, Jr., a member of theIIC, to that effect. However, Miller acknowledged the validity andenforceability of the disclosure provisions of the Illinois Actsdiscussed below.[[10\/]] That section provides:. . . Every hospital, physician, surgeon or other person renderingtreatment or services in accordance with the provisions of this Sectionshall upon written request furnish full and complete reports thereof to,and permit their records to be copied by, the employer, the employee orhis dependents, as the case may be, or any other party to any proceedingfor compensation before the Commission, or their attorneys . . . .[[11\/]] The relevant portion of that section provides:The Commission upon application of either party may issue dedimuspotestatem directed to a commissioner, notary public, justice of thepeace or any other officer authorized by law to administer oaths, totake the depositions of such witness or witnesses as may be necessary inthe judgment of such applicant . . .[[12\/]] The relevant portion of that section provides:The Commission, or any member thereof, or any Arbitrator designated bythe Commission, shall on written request of either party to the dispute,issue subpoenas for the attendance of such witnesses and production ofsuch books, papers, records and documents as shall be designated in theapplications, . . . ._See also Id.,_ ? ? 138.12, 172.47(a) (physicians’ reports must be madeavailable to other party by time of trial); ? 138.19(c) (IIC may requiremedical examination of employee, with copy of report to both parties).The Illinois Acts have been revised in some respects. _E.g., _Ill. P. A.86-998, ? 1, eff. Dec. 18, 1989. None of those changes affect thesecases, however.[[13\/]] OSHA stated:3. Privileged records. The question has been raised whether an employermust provide access to records which are created solely in anticipationof litigation and which are otherwise privileged from discovery underthe prevailing rules of procedure or evidence. An example could be amedical opinion prepared for the employer for purposes of aiding theemployer’s case by a company physician after a workmen’s compensationclaim has been filed. It has been OSHA’s interpretation that thestandard does not contemplate coverage of such a record if the recordwould not otherwise be available to the employee or his attorney in thelitigation. On the other hand, _the mere fact that a medical record_(see definition at 29 CFR 1910.20(c)(6))_not originally created inanticipation of specific litigation will ultimately be used as evidencein a private legal proceeding does not put it outside the scope of thestandard.__Id., _col. 3 (emphasis added). The preamble to the 1988 revision of thestandard reaffirmed and reprinted the 1981 interpretation, in discussingthe term \”employee medical record.\” _Final Rule: Access to EmployeeExposure and Medical Records,_ 53 Fed. Reg. 38,140, 38,150-51 (Sept. 29,1988).[[14\/]] The burden of proving the invalidity of a cited standard is onthe employer. Commission Rule 36(b)(1), 29 C.F.R. ? 2200.36(b)(1). _Cf.__Puget Sound Tug & Barge,_ 9 BNA OSHC 1764, 1774, 1981 CCH OSHD ?25,373, p. 31,594 (No. 76-4905, 1981) (burden of proof of exemption fromOSHA jurisdiction under ? 4(b)(1) of the Act is on employer).[[15\/]]The employer in _Crowell v. Benson_ protected the fact that thelaw permitted ex parte inquiries by the judge regarding the merits ofthe case. Id. Therefore, the employer argued unsuccessfully, one partycould prevail based on \”unknown sources of information,\” depriving theother of a fair hearing. Id. The practice challenged in _Crowell v.Benson_ is also authorized by ? 138.19(b) of the Illinois Acts.[[16\/]]The Illinois Acts contemplate public hearings, with a fullopportunity for each party to present evidence and meet opposingevidence, including surprise evidence. Decisions are to be based onwritten \”findings of fact and conclusions of law, separately stated.\”_Id._Also, there is meaningful review of the arbitrator’s decision by IIC. ?138.19(e), (f). No legal duty to pay compensation arises until therelevant proceedings before the IIC are completed. ? 138.19(f), (g).Thus, a party claiming that due process was denied before the arbitratormay obtain meaningful review of the issue before any rights areirreparably affected. _See,_ _e.g.,_ I_n Matter of Claim forCompensation under LHWCA,_ 889 F.2d 626, 630-32 95th Cir. 1989)(opportunity for meaningful review of initial decision within WCtribunal preserves due process), _cert._ _denied_ _sub nom, LouisianaInsurance Guaranty Ass’n v. Abbott, _U.S., 110 S. Ct. 1813 (1990). Thereare sufficient protections under Illinois Acts to avoid unfairness to anemployer faced with surprise evidence. (We note that no actual surpriseevidence has been alleged here.)[[17\/]] The Secretary notes a statement in a recent court decision thata willful OSHA violation may be found \”even if [the employer] has a goodfaith belief that its own policy is wiser.\”_RSR Corp. v. Brock, _764F.2d 355, 363 (5th Cir. 1985). However, the court found willfulness inthat case because RSR knew that its policy did not conform to the law.Here, the evidence shows that GM had a good faith basis for claimingthat its conduct was consistent with the law.[[18\/]] The union party has not sought to overturn the stipulations.[[19\/]] The records access rule was not intended to cover trips, falls,cuts, and similar non-chronic traumatic injuries. _Preamble to FinalRule on Access to Employee Exposure and Medical Record_s, 45 Fed. Reg.35,212, 35,258, 35,267 (1980) (definition of \”toxic substances andharmful physical agents\” [? 1910.20(c)(11)] \”excludes traumatic safetyhazards such as trips, falls, cuts, etc.. but includes repetitive motion(ergonomic) stresses due to their subtle and chronic nature\”).[[20\/]]We also find it difficult to ascribe willful disregard to GM inlight of the conclusion by the commission majority in _Johnson & JohnsonProducts, Inc.,_ 11 BNA OSHC 2097, 1984-85 CCH OSHD ? 26,988 (No.81-1339, 1984). As discussed in the next section, they concluded that arecords access request related to WC proceedings is essentiallyunenforceable because failure to comply with it is _de minimis._Although that conclusion is erroneous, it lends some credence to GM’sinitial reaction to Havell’s request.[[21\/]]The union argues that GM’s noncompliance was shown to be willfulbecause GM’s guidelines for providing employees access to medical andexposure records did not make an exception for records related to WCclaims. GM’s guidelines had been developed jointly with the union. Wereject the union’s argument because there is no showing that the topicof WC related records was raised by the union or considered by GM duringdevelopment of the guidelines.[[22\/]] One of the employers had denied access specifically because itconsidered the use of the records access standard for purposes ofdiscovery in WC cases to be inappropriate. The Commission majority stated:Even if we were to find that there was a violation, we would find that,under the circumstances of this case, it was _de minimis._ A _de minimis_violation is one in which there is technical noncompliance with astandard but the departure from the standard bears so littlerelationship to employee safety or health that it is inappropriate toassess a penalty or require abatement of the violation. . . The recordshere were sought for discovery purposes for a proceeding unrelated tothe safety and health purposes of the Act . . . .11 BNA OSHC at 2100 n.8, 1984-85 CCH OSHD at p. 34,709 n.8 (citationsomitted).[[1\/]] Jurisdiction of the parties and the subject matter herein isconfirmed upon the Occupational Safety and Health Review Commission bySection 10(c) of the Act.[[2\/]] ?1910.20 Access to employee exposure and medical records.(e) _Access to records _(1) General (i). Whenever an employee ordesignated representative requests access to a record, the employershall assure that access is provided in a reasonable time, place, andmanner, but in no event later than fifteen (15) days after the requestfor access is made.(ii) Whenever an employee or designated representative requestsa copy of a record, the employer shall, within the period of timepreviously specified, assure that either:(A) A copy of the record is provided without cost to the employee orrepresentative,(B) The necessary mechanical copying facilities (e.g., photocopying) aremade available without cost to the employee or representative forcopying the record, or(C) The record is loaned to the employee or representative for areasonable time to enable a copy to be made.(2) _EmpIoyee and designated representative access_ -(1) Employeeexposure records. Each employer shall, upon request, assure the accessof each employee and designated representative to employee exposurerecords relevant to the employee. For the purpose of this section,exposure records relevant to the employee consist of:(A) Records of the employee’s past or present exposure to toxicsubstances or harmful physical agents,(B) Exposure records of other employees with past or present job dutiesor working conditions related to or similar to those of the employee,(C) Records containing exposure information concerning the employee’sworkplace or working conditions, and(D) Exposure records pertaining to workplaces or working conditions towhich the employee is being assigned or transferred.[[3\/]] Both a trial transcript and Stipulation of Facts make up therecord in this case. References to the _Stipulation of Facts andAdmissibility of Documents_ executed by the parties shall be denoted as\”Stip. Par.__. Transcript references are denoted as \”Tr.__.\” Trialexhibits are denoted as \”Comp. Ex. No.__ or \”Resp. Ex. No.__.\”[[4\/]] A claim concerning 29 C.F.R. ? 1910.20 et seq., analogous toRespondent’s claim herein was placed before the Court. The Court dealtwith it in a very practical manner stating:\”LCA … asserted that the agency’s principal motivation for enactingthe rule was to gain a benefit for employees and unions which they havebeen unsuccessful in securing through the NLRB. Specifically, thebenefit of records access. The court must make little of such anallegation for two reasons. First, the records access rule is a dulyauthorized regulation, reasonably related to its underlying statute.While the rule undoubtedly enhances the bargaining status of unions, itis plain on the record that this result was simply incidental tofulfilling the statutory goal of promoting healthful workingconditions.\” 550 F. Supp. at 1145[[5\/]] We assume these records exist since Respondent never replied tothe request of the employee indicating that no exposure records orhealth records existed. Looking to the manner in which Respondentproceeded if it is later found that no exposure or other health recordsexist, we would be kidding ourselves to believe that Respondent wouldhave turned over such records in any event if they had in fact existedat the time of request (see pp. 26-29, _infra_).[[6\/]] Access to records enhance the ability of employees to decidewhether or not to request a Health Hazard Evaluation by NIOSH under Sec.20(a)(6), 29 U.S.C. ? 669(a)(6). Sixty to seventy percent of allevaluation requests come from workers or their representatives. 45 Fed.Reg. 35246. Access to records enables employees to provide NIOSH withinformation that it requires to set priorities on its limited resourcesto conduct Health Hazard Evaluations. Respondent has offered no reasonwhy this work of NIOSH should suffer because of the existence of aworker’s compensation claim. Additionally, Respondent’s refusal to abideby 29 C.F.R. ? 1910.20 undermines the very purpose of the Act inpreventing employee ignorance about workplace hazards; a result Congressspecifically sought to eradicate. The House Committee on Education andLabor stated:Basically the worker needs to have adequate advance knowledge of hazardsin order to protect himself from damaging exposures…Since inadvertentexposure to unknown products or processes often causes severe andimmediate reactions, the exposed worker must know what type of exposurehe has suffered in order to use proper treatment. The worker especiallyneeds this information in cases of toxic substances which have delayedor latent ill effects. Legislative History at 150.Additionally, Respondent’s discussion of the recently enacted Illinoisaccess to records statute is interesting but factually incorrect, andthe inference drawn from it, regardless of the facts, erroneous. We seeno indication that the House, Senate, or Governor ever considered thislegislation in terms of its interaction with the state’s workmen’scompensation laws. Furthermore, the House passed version of the billprovided for access to medical records, a provision not included in theSenate passed version. The House ultimately accepted the Senate’sversion of the bill. Thus the legislation which reached the Governor’sdesk did not provide for access to medical records. However, in printingthe legislation for signature, a poor proofreading job had beenperformed and thus, although access to medical records had been deleted,all such references had not been removed from the legislation itself.The Governor’s amendatory veto of those references therefore, was merelya completion of the proofreading of the legislation. (See Illinois 1983House debate on House Bill No. 2035, May 19, 26 and October 19; IllinoisSenate 1983 debate June 16, 23, and November 2 — Ex. A and B toComplainants’ Reply Brief filed July 19, 1984).[[7\/]] We need not review Respondent’s reading of the legislativehistory of the Illinois Compensation Laws, other then to say that wefind Respondent’s argument concerning the so-called \”balance\” struck byIllinois law a product of Respondent’s creative thinking. As in mostadministrative law proceedings, discovery has been severely limited orproscribed in the name of expeditious handling of cases. Such an intentis evident in Occupational Safety and Health Review Commissionproceedings and was clearly stated by the Illinois legislature in thebody of the statute itself. Indeed, Illinois courts have recognized thatthe purpose of the Workmen’s Compensation Act is to provide prompt, sureand definite compensation, together with quick and efficient remedy, toemployees for every injury, accident and\/or death suffered in the courseof employment without having to show negligence on the part of theemployer but subject to the limitations specified by the Act._Moushon v.National Garages, Inc., _9 Ill. 2d 407 (1956); _O’Brien v. Ratenbush,_10 Ill. 2d 167 (1956); _Pathfinder v. Industrial Commission_, 62 Ill.2d 556 (1976); _Laffoon v. Bell & Zoller Coal Co., _65 Ill. 2d 437(1976); _Kelsay v. Motorola, Inc., _74 Ill. 2d 172 (1978).[[8\/]] Respondent has directed our attention to the case of Trans WorldAirlines, Inc. v. Thurston, ______U.S.____ 53 2W 4024 (1985)(hereinafter \”TWA\”) for the proposition that if a company seeks adviseof counsel, and acts upon same in violation of the law, it cannot befound guilty of a willful violation. After a careful reading of thiscase, we find the holding of the court inapposite to the facts of theinstant case. In TWA the court found that \”TWA officials actedreasonably and in good faith in attempting to determine whether theirplan would violate the ADEA,\” (Age Discrimination in Employment Act 29U.S.C. ? 621 _et seq_.) Quite clearly the court’s ruling does notprovide unconditional absolution from one’s legal transgressions if thetransgression could be traced back to reliance upon advise of counsel.In TWA the employer sought conformance with the ADEA in a very technicalwork setting having complex legal and factual elements to it. Theemployer’s acts, which ultimately resulted in a violation of the ADEA,were rationally designed from the start, aimed at _gaining _compliancewith ADEA, while attempting to comply with the collective-bargainingagreement. In the instant case we find an employer seeking to avoidcompliance with the Act, not one attempting compliance as we do in TWA.We fail to find in Respondent’s actions that degree of reasonableconduct and good faith used as a touchstone for the Court in TWA to findother than willful conduct (pp. 26-28, _supra_). That element is absentin this case when viewing the realities of the legal proposition reliedupon. Accordingly, we find no application of the holding in TWA to thelegal or factual issues of this case.”