“Docket No. 82-0630_84-0781_84-0816SECRETARY 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,\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a084-0781,\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a084-0816DECISIONBefore: MONTOYA and WISEMAN, Commissioners.[[1\/]] BY THE COMMISSION:Certain employees of General Motors Corporation, Electro MotiveDivision (\”GM\”), filed requests with GM for access to its medical and exposurerecords concerning them. Those requests were made pursuant to the records access rule, 29C.F.R. ? 1910.20, promulgated by the Secretary of Labor’s Occupational Safety and HealthAdministration (\”OSHA\”). GM denied the requests on the ground that they relatedto pending worker’s compensation (\”WC\”) claims that those employees had broughtagainst it in Illinois. We now review the merits of the Secretary’s citations issued to GMbased on those access denials.GM claims that the access requests were invalid because theyeffectively change Illinois’ WC law, in violation of ? 4(b)(4) of the Occupational Safetyand Health Act, 29 U.S.C. ? 653(b)(4). That section states, \”[n]othing in this Actshall be construed to supersede or in any manner affect, any workmen’s compensation law…\”[[2\/]] GM contends that the result of enforcing the employees’ requests would beto give employees greater rights than GM has to pretrial disclosure of informationrelevant to their pending WC proceedings. GM also argues that its refusal to provideaccess is at most a de minimis violation of the records access rule, warranting nopenalty or abatement requirement.Former Commission Administrative Law Judge Edward A. Bobrickrejected GM’s arguments, found a willful and serious violation in all three cases, andassessed a $10,000 penalty in each case. We affirm the judge’s findings of violations, butfind them non-willful and impose a $1000 penalty in each case, for the reasons thatfollow.I. BackgroundThe 1982 case involves William Havell, an employee at GM’s LaGrange, Illinois, facility. Havell had filed a claim against GM in 1979 under the IllinoisWorker’s Compensation Act. 111. Rev. Stat. Ch. 480 ? 138. The basis for that claim wasthat Havell \”injured his body while working.\”In March 1982, Havell submitted to GM, through the law firmthat represented him in the WC claim, a signed request for access to \”[a]ll medicaland exposure records\” concerning him. The stated purpose of the request was\”Investigation and legal representation.\” Havell also specifically authorizedrelease of the records to the law firm.Upon receipt of the records access request, GM sought anopinion from its legal counsel about whether to comply. GM’s legal counsel advised thatthe request was invalid under ? 4(b)(4) of the Act because the \”obvious purpose ofthis request under OSHA is to gather information for use in the [WC] matter that cannot begathered under the Illinois Compensation law.\” In support, the counsel noted that theIllinois law allows no prehearing discovery regarding pending WC claims. In denying therecords access request, GM set forth the reasons supplied by its counsel.The Secretary issued a one-item citation to GM in June 1982,with a single $480 proposed penalty. Item 1A alleged a failure to provide Havell’sdesignated representative with access to GM’s, medical records on him, contrary to ?1910.20(e)(1)(i).[[3\/]] Item 1B alleged a failure to provide the representative withaccess to requested exposure records that GM kept concerning Havell, contrary to ?1910.20(e)(2)(i).[[4\/]]In June 1983, shortly before the hearing on the merits, theSecretary moved to amend the citation to allege that the item was both willful andserious, and to amend the proposed penalty to $4800. The judge granted the motion.There is no dispute that GM failed to comply with the rule.[[5\/]] Accordingly, theSecretary and GM submitted the case for resolution of only the following issues:….the parties desire to limit this case to the questions ofwhether Mr. Havell’s request for access to medical and exposure records can be valid inview of Section 4(b)(4) of the Occupational Safety and Health Act, the characterization[sic] of the violation, if any, and the penalty, if any….The two 1984 cases arose out of similar requests for recordsaccess, filed by, or on behalf of, two other employees at the same facility. The partieshave agreed to be bound in those cases by the final decision in the 1982 case, except thatGM has the option of presenting additional arguments on the alleged willfulness andproposed penalties in the 1984 cases.II. Whether ? 1910.20 violates ? 4(b)(4), as applied here The language of ? 4(b)(4) (quoted above at n. 2) is quitebroad. However, we believe that the United States Court of Appeals for the D. C. Circuitproperly interpreted that language in its comprehensive decision in the lead standardcase. United Steel- workers of America v. Marshall, 647 F.2d 11891 1234-36 (D.C.Cir. 1980). cert. denied,453 U.S. 913, 101 S. Ct. 3148 (1981). It essentially heldthat ? 4(b)(4) means only that the Act and OSHA regulations are not to be interpreted toalter the terms of any WC law.[[6]] Accord, Pratico v. Portland Terminal Co., 783F.2d 255, 264-67 (1st Cir. 1985).The OSHA records access rule does not change the terms ofeither Illinois’ WC Act or its Occupational Diseases Act. Ill. Rev. Stat. Ch. 48, ? 138,172.36 et. seq. (\”Illinois Acts\”). Nor must the Illinois IndustrialCommission (IIC), which governs the adjudication of cases under both Acts, do anythinginconsistent with their terms, as a result of ? 1910.20.[[7\/]] Thus, ? 4(b)(4) has notbeen violated.[[8\/]]Our reading of the court’s decision in Steelworkerssupports this conclusion. 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 employers argued thatbecause MRP benefits exceeded the benefit levels under WC laws for lead exposure, MRP ineffect impermissibly modified those laws. The court held that \”though MRP may indeedhave a great practical effect on workmen’s compensation claims, it leaves the stateschemes wholly intact as a legal matter, and so does not violate Section 4(b)(4).\”647 F. 2d at 1236 (emphasis in original). If MRP, which largely negated the WC limitationson employees’ recovery for lead-related illness, does not \”affect\” WC laws forpurposes of ? 4(b)(4), certainly the records access rule that is now before us does not\”affect\” them.There was testimony that pretrial \”discovery\” perse is not provided for under the Illinois Acts.[[9\/]] However, those Acts provideample opportunity for both WC claimants and their employers to obtain medical and exposurerecords for use in WC proceedings. For example, the Illinois Acts require that everyperson rendering treatment or services in connection with a claim must turn over theirrecords to any party on written request. Id., ? 138.8(a).[[10]] The IIC may permitpre-trial depositions of any person whose testimony is deemed necessary by either party,for use as evidence at trial. Id., ? 138.16.[[11\/]] The IIC is required to issuesubpoenas at the request of either party for the attendance of witnesses and production ofdocuments. Id.[[12\/]]Havell’s effort to obtain information about his health throughthe records access rule violates neither the letter nor the spirit of the Illinois Acts.Procedures under those Acts are designed to minimize costs and to simplify and speed theprocess, so that an eligible employee 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 pretrial discovery allowedin certain other civil proceedings. Records access under ? 1910.20, however, does notconflict with these objectives because such access does not slow down or otherwiseinterfere with Illinois 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 therequired disclosure of employer records on toxic materials or harmful physical agentswould violate ? 4(b)(4). The Act instructs the Secretary to issue regulations requiringemployers to maintain accurate records of all monitoring or measuring mandated under theSecretary’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 formeremployee to have access to such records as will indicate his own exposure to toxicmaterials or harmful physical agents.Id. (emphasis added). Section 8(c)(3) of the Actrequires appropriate provisions for access by each employee to medical and exposurerecords.Also, we agree with OSHA’s formal interpretation that the ruleis not rendered unenforceable by the mere fact that an access request is related toprivate litigation, including WC litigation. Access to Employee Exposure and MedicalRecords; Partial Stay; Interpretations, 46 Fed. Reg. 40,490 (Aug. 7, 1981).[[13\/]]That interpretation was issued long before the citations in these cases, and it isconsistent with the specific mandate of records access in the Act.That interpretation shows that ? 1910.20 was not intended tochange WC discovery provisions. OSHA made clear that the rule does not require disclosureof records created by the employer in anticipation of litigation and which would beunavailable to the employee in WC proceedings for that reason. Here, GM does not claimthat the requested records fall under that exception to discovery (the so-called\”work product\” doctrine), or under any other specific exemption from discovery.It merely claims that ? 1910 20 unavoidably conflicts with ? 4(b)(4), whenever there isa pending WC claim. Such a notion lacks merit.Although the access required by the Act may have an indirect,practical impact on the timing of certain disclosures in WC proceedings, it has no legaleffect on them. It does not change the terms of the Illinois Acts, or require actionsinconsistent with those terms in WC proceedings. We therefore conclude that the rule doesnot violate ? 4(b)(4).[[14\/]]In a related argument, GM claims that the records access ruleviolates its due process rights. It relies on Wardius v. Oregon, 412 U.S. 470, 93S.Ct. 2208 (1973). There, the Supreme Court held that a state criminal statute regardingdiscovery denied the defendant due process of law. That statute required the defendant todisclose, before trial, the identity of alibi witnesses he planned to have testify. It didnot explicitly require the state to disclose the identity of witnesses it planned to callto refute the alibi. The Court stated:It is fundamentally unfair to require a (criminal) defendant todivulge the details of his own case while at the same time subjecting him to the hazard ofsurprise concerning refutation of the very pieces of evidence which he disclosed to theState.412 U.S. at 476, 93 S.Ct. at 2212-13. However, we conclude thatthis decision does not control the cases before us, because it is based on concern for therights of criminal defendants. The special protections given a criminal defendant aresimply not required in civil cases like WC proceedings. The Supreme Court has held that\”due process is flexible and calls for such procedural protections as the particularsituation demands.\” Morrissey v. Brewer, 408 U.S. 471, 481, 92A S.Ct. 2593,2600 (1972) (full panoply of rights given to criminal defendant does not apply to parolerevocations). Accord, e.g., Mathews v. Eldridge, 424 U.S. 319, 334,96 S.Ct. 893, 902 (1976) (proceedings to terminate Social Security disability benefitpayments). WC proceedings need not adhere to the strictures of criminal or even civiljudicial proceedings, so long as the substantial rights of the parties are not infringed.E.g., Crowell v. Benson, 285 U.S. 22, 48, 52 S.Ct. 285, 291 (1932) (rejectingclaims that summary administrative procedures under Federal WC law, Longshore and HarborWorkers’ Compensation Act (LHWCA), violate due process).Section 1910.20 does not infringe the substantial rights ofparties in Illinois WC proceedings. Those rights are not infringed by the mere fact thatone party may obtain information from the other under another law, without having toprovide reciprocal information. The law that was unsuccessfully challenged in Crowellv. Benson permitted an imbalance of prehearing information. That imbalance wasessentially similar to the imbalance that might exist in an Illinois WC proceeding, withor without a related records access request under ? 1910.20.[[15\/]] The Court held thatdue process was preserved nevertheless, because it was implicit under the law that all\”facts…and their sources shall be shown in the record and be open to challenge andopposing evidence.\” Id. The same rights are preserved under the Illinois Acts.[[16\/]]Thus, ? 1910.20 does not deprive parties due process inIllinois WC cases, and GM’s due process argument is rejected. We affirm a violation ineach of these three cases.III. Whether the violations were willfulA willful violation is one committed with intentional, knowingor voluntary disregard for the requirements of the Act, or with plain indifference toemployee safety. E.g., Williams Enterprises, Inc., 13 BNA OSHC 1249,1256-57, 1986-87 CCH OSHD ? 27,893, p. 36,589 (No. 85-355, 1987). It is differentiatedfrom other types of violations by a \”heightened awareness — of the illegality of theconduct or conditions — and by a state of mind — conscious disregard or plainindifference.\” 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 for these purposes is anobjective one — whether the employer’s belief concerning a factual matter, or concerningthe interpretation of a rule, was reasonable under the circumstances. Id. 13 BNA OSHC at1259, 1986-87 CCH 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 hadan objective, good faith basis for believing that it was not required to comply with theterms of the records access rule. That basis includes, but is not limited to, itsreasonable, although in our view incorrect, interpretation of ? 4(b)(4). We cannot find,on the state of these records, that GM’s refusal to comply actually was based on anunderlying, willful motive. Thus, we find that the violations are not properly classifiedas willful.Initially, we note that the issue before us is limited, due to the particular stipulationsbetween the Secretary and GM.[[18\/]] As noted above, the Secretary stipulated that shewould be bound in the 1984 cases by the final decision regarding the 1982 case. Thus, ifthe 1982 violation is found non-willful, the 1984 violations also should be foundnon-willful. Our determination of whether the 1982 violation was willful depends on GM’smotives at the time the alleged violation occurred, which of course was before thecitation was issued. Events occurring after the citation may be relevant in determiningwhat GM’s motives were for 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 tocomply with Havell’s request in 1982. The Secretary stipulated that GM routinely complieswith records access requests that it deems consistent with the cited regulation, and thatGM provided access in response to all of the requests it received in 1982 (approximately10), 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 of the pending WCclaim.As our earlier response to GM’s ? 4(b)(4) arguments indicates,its attorneys had a substantial legal question to answer. The language of ? 4(b)(4) isambiguous, as the D.C. Circuit noted in Steelworkers. At that time, the Commissionhad not addressed the permissible effects of the Act on WC cases, and Steelworkersinvolved a somewhat different issue.We therefore conclude that it was not imprudent for GM’s attorneys to counsel it to askthe Commission to clarify the effect of ? 4(b)(4), before turning over documents relevantto the WC claim to Havell’s attorneys. The fact that GM acted consistently with the adviceof its legal counsel is also relevant to whether its noncompliance was willful. 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 suggested interpretation of ? 4(b)(4) may seem a bit\”strained,\” as the judge found, there was an objective, good faith basis for GMto believe that it was excused from compliance with the records access rule in the contextof Havell’s records access request.In the judge’s opinion, the violations were willful because GMsingled out employees who had filed WC claims by refusing them access to all medical andexposure records, regardless of whether the records related to those claims. He found thatthe fact that GM had sought and relied on its legal counsel’s opinion did not negatewillfulness, because GM did not offer to turn over documents unrelated to Havell’s WCclaim.We note, however, that there is no evidence that GM knew, atthe time the 1982 citation was issued, that it had records on Havell that were unrelatedto the WC claim. When the 1982 violation occurred, the stated basis for Havell’s WC claimwas merely that he had \”injured his body while working.\” GM’s counsel concludedthat the records access request arose out of that claim, and that its \”obviouspurpose\” was to gather information for use regarding the WC claim. The fact that therecords access request was filed by the attorneys who represented Havell in the WC caseunderscores the plausibility of that conclusion.The Secretary contends that GM’s willfulness is demonstrated byits failure to provide Havell access to all medical and exposure records, even when the WCclaim was amended, a few months after GM contested the citation, to specify that thealleged injury was to the \”lower back.\” This argument is without merit. Wecannot base a finding of willfulness on the mere fact that GM did not abate a citedviolation during the pendency of these proceedings. Employers are not required to abatealleged violations until their contest is finally decided by the Commission, where thecontest is \”initiated by the employer in good faith and not solely for delay andavoidance of penalties . . . .\” ? 10(b) of the Act, 29 U.S.C. ? 659(b).Moreover, GM still had good faith bases for believing thatcompliance was not required, even after Havell’s WC claim was amended. GM claimed thatHavell’s jobs never involved exposure to hazards about which records must be disclosedunder the regulation — \”toxic substances or harmful physical agents.\” See,e.g., ? 1910.20(b)(1).[[19\/]] There is no contention that this position was notheld in good faith, although GM subsequently waived that position as part of thestipulations. GM also preserved the right to rely on the legal claims of industry in acase then pending, which challenged the validity of the records access rule. LouisianaChemical 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 no claim that GM’s reliance on the industry’sarguments in that case was not maintained in good faith, although those claims wererejected by the District Court following GM’s notice of contest, and were rejected by theFifth Circuit in May 1984. GM’s actions after the 1982 citation do not demonstrate thatits initial noncompliance was willful.[[20\/]]Thus, we cannot conclude that the 1982 violation waswillful.[[21\/]] Because the Secretary has agreed to abandon the claim that the 1984violations were willful if the determination is made that the 1982 violation was notwillful, we find that none of the violations should be classified as willful.IV. Whether the alleged violations should be termed deminimisThe basis for GM’s argument that these alleged violations are de minimis is certaindicta in a footnote to a Commission decision involving a similar records accessrequest. 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 twocompanies for denial of employee requests for access to exposure records on the groundthat the employees had only requested access to medical records. In the relevant footnote,the commission majority apparently concluded that, even if the employees had includedexposure records in their requests for access, the employers’ failure to comply with theserequests would only have been a de minimis violation of the Act, because thepurpose of the requests was to obtain records for use in WC proceedings and WC proceedingsare unrelated to the safety and health purposes of the Act.[[22\/]]We must disagree with that dicta. Congress declared in the Act that WC laws serve asimilar purpose to the Act:the full protection of American workers from job-related injuryor death requires an adequate, prompt, and equitable system of workman’s compensation aswell as an effective program of occupational health and safety regulation . . . .Former 29 U.S.C. ? 676 (1971). (That section of the Actestablished a National 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 theyprovide a sure financial recovery for an employee accidentally injured on the job, andmake the employer responsible for paying the costs. See S. G. Borello & Sons, Inc.v. Dep’t of Industrial Relations, 48 Cal. 341, 769 P.2d 399, 406 (1989) (California WClaw). The Federal LHWCA is a comparable WC law. See Calbeck v. Travelers Ins. Co.,370 U.S. 114, 124, 82 S.Ct. 1196, 1202 (1962). That Act is designed to motivate employersto provide \”the fullest measure of on-the-job safety\” for their employees.Bath Iron Works Corp. v. White, 584 F.2d 569, 575 (1st Cir. 1978). See also AlaskaPackers Ass’n v. Industrial Accident Commission of California, 294 U.S. 532, 541, 55S.Ct. 518, 521 (1935). We therefore conclude that the purposes of the Act and of WC lawsare complementary.We cannot adopt a general classification of de minimis for noncompliance withrecords access requirements, although a particular departure from the rule’s termsconceivably could be so minor as to qualify as de minimis. The Act’s recordkeepingrequirements \”play a crucial role in providing the information necessary to makeworkplaces safer 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 tomedical and exposure records also can play a crucial role in protecting the employee’shealth. See, e.g., Amoco Chemicals Corp., 12 BNA OSHC 1849, 1852,1856, 1986 CCH OSHD ? 27,621, p. 35,901 (No. 78-250, 1986) (employer had medical recordsindicating that employee had pleural effusion — a symptom of possible cancer — butfailed to inform employee of condition).Lastly, we conclude that GM’s argument lacks merit because therequests in these cases were not expressly limited to records relevant to the WC claims,and the parties’ submissions do not show that only such records were covered by therequests. Havell had worked for GM for 20 years. GM does not dispute in this case that hewas exposed to toxic substances and harmful physical agents within the scope of therecords access rule. Its job descriptions for the positions held by Havell show that hewould have been subject to exposure to carbon monoxide, welding smoke and fumes, dust fromgrinders, as well as noise from air hammers. Havell also told OSHA’s inspector that he hadbeen exposed to caustic chemical solutions in tanks near his work area. GM has notindicated that it attempted 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 seriousThe judge found the violations to be serious because access tothe records covered by ? 1910.20 is \”paramount as a first step in avoiding seriousillness and injury caused by exposure in the workplace to the toxic substance.\”However, the record does not indicate what records GM had relevant to Havell, or whetherthey related to a serious illness or injury. No evidence was introduced that GM monitoredthe areas where he worked for toxic substances or harmful physical agents. As theSecretary notes, the rule does not require employers to make records, but merely toprovide access to existing records. Thus, the issue is whether a failure to turn overrecords covered by the rule should be considered serious per se.The definition of a serious violation under the Act is asfollows:[A] serious violation shall be deemed to exist in a place ofemployment if there is a substantial probability that death or serious physical harm couldresult from a condition which exists, or from one or more practices, means, methods,operations, or processes which have been adopted or are in use, in such place ofemployment unless the employer did not, and could not with the exercise of reasonablediligence, know of the presence of the violation.29 U.S.C. ? 666(k). There have been divergent views expressedon whether violations similar to the violations we affirm here are serious under thedefinition in the Act. In one case, an employer’s failure to pay for medical examinationswas termed a serious violation of the inorganic arsenic standard (29 C.F.R. ? 1910.1018).Phelps Dodge Corp, v. OSHRC 725 F.2d 1237 (9th Cir. 1984), aff’ing, 11 BNAOSHC 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 beserious, the violation must potentially cause physical harm. This interpretation iserroneous. Rather, the court looks to the harm the regulation was intended to prevent, andif that harm is death or serious physical injury, a violation of the regulation is seriousper se.725 F.2d at 1240 (emphasis in original). In a later case, theCommission held that the fact that a regulation is designed to protect against a serioushazard does not make every violation of its provisions serious. Duquesne Light Co.,11 BNA OSHC 2033, 2038-39, 1984-85 CCH OSHD ? 26,959, pp. 34,602-03 (No. 79-1682, 1984)(isolated, one-day asbestos removal operation involving excessive asbestos exposure wasnot shown to be sufficient to cause serious physical harm).Thus, a complex issue is presented. However, we do not find itnecessary to resolve the issue at this time, as its resolution here would not affect theabatement requirements or penalties involved and none of the parties’ rights will beadversely affected by our decision not to resolve this issue. We hereby limit the effectof the judge’s finding that the violations were serious to these cases. That finding isnot to be used, for example, as a basis for imposing greater liability on GM in any othercase. Nor will the Secretary be constrained in other cases. The Secretary may proposeappropriate penalty, classification and abatement requirements in any future citation, andmay rely on the underlying facts found here. Also, the union party’s rights under the Actare not prejudiced. (For example, the abatement date is unaffected.) There being no harmto any parties, the Commission exercises its discretion not to decide the question ofseriousness here. See, e.g., Williams Construction Co., 6 BNA OSHC1093, 1095 1977-78 CCH OSHD ? 22,325, p. 26,895 (No. 11526, 1977) (Commission need notdecide whether judge erred in finding violation repeated, where penalty would beappropriate for nonserious violation); Westburne Drilling. Inc., 5 BNA OSHC 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) (unreviewedpart of judge’s decision does not constitute binding Commission precedent).VI. PenaltiesHaving found the violations non-willful, we conclude that a$1000 penalty is appropriate for each case. Before the citations were amended to allegewillfulness, the Secretary had proposed a penalty of $480 for the 1982 case and $1000 foreach of the 1984 cases. After the amendment, the Secretary’s proposal was to assess$10,000 in each case. The maximum allowable penalty for either a serious or nonseriousviolation 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 theviolation, 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 provisionsderive from an express requirement in the Act that employees have access to medical andexposure records concerning them. The purpose of that requirement is to allow employees toassess their health and factors affecting it. E.g., S.Rep. No. 91-1282 91st Cong.,2d Sess. 17 (1970), reprinted in Legislative History of the Occupational Safety andHealth Act, 157 (1971). Records access can play a crucial role in an employee’sprotection of his or her health, as discussed above.Also, GM is among the nation’s largest corporations, and has ahistory of violations. As to good faith, although we have found an objective, good faithbasis for GM’s noncompliance, its failure to provide access after it knew that therequests were not limited to the subject of the WC claims does not indicate a high degreeof good faith.Thus, the citation in each case before us is affirmed as a non-willful violation, and atotal penalty of $3000 is assessed, representing $1000 for each case.Velma Montoya CommissionerDonald G. Wiseman CommissionerDated: February 15, 1991SECRETARY OF LABOR,Complainant,v.ELECTRO-MOTIVE DIVISION, GENERAL MOTORS CORPORATION, Respondent.OSHRC Docket No. 82-0630DECISION AND ORDERAppearance:FRANCIS X. LILLY, Esq., Solicitor of Labor, JOHN SECARAS, Regional Solicitor,KENNETH HENRY, Esq., Office of the Solicitor, Chicago, Illinois for Raymond 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 & Eagle Attorney for Local 719, United Automobile, Aerospace and Agricultural ImplementWorkers of America (UAW), the Authorized 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-MotiveDivision, General Motors Corporation, contested a Citation issued by Complainant, RaymondJ. 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 and Health Provisions,29 C.F.R. ?1910.20, entitled Access to Employee Exposure and Medical records (hereinafterreferred 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 an employee or designed representative requests access to a record, assure thataccess is provided in a reasonable time, place and manner but in no event later thatfifteen (15) days after the request for access is made:On March 18, 1982, the representative of William Havellrequested access to all of Mr. Havell’s medical records. None were provided.1B. 29 C.F.R. 1910.20(e)(2)(i): The employer did not, uponrequest, assure the access of each employee and designated representative to employeesexposure records relevant to the employees:On March 18, 1982, the representative of William Havellrequested access to all of Mr. Havell’s exposure records. None were provided.The Citation was issued as a result of an investigation prompted by a complaint made by anemployee to the Occupational Safety and Health Administration (hereinafter\”OSHA\”) concerning a denial by Respondent of a request by the employee for hismedical and exposure records.FACTS OF CASEThe relevant facts in this case are fairly straightforward and,to a great extent, have been stipulated by the parties. [[3\/]]Electro-Motive Division, General Motors Corporation, is and atall relevant times hereto was, engaged in a business affecting interstate commerce, towit, the manufacture of diesel engines and related activities (Complaint, Par. Il and III;Answer, Par. II and III). At all times relevant to this matter, Respondent had kept andmaintained employee 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, andduring all times mentioned herein, filed a claim against Respondent on or about April 3,1979, pursuant to the Illinois Workers’ Compensation Act (Stip. Par. 2, 3 and Ex. A andG). The employee subsequently filed an amended claim in September, 1982. The injuryalleged by the employee in his compensation claim was for an injury to his lower backsuffered on January 24, 1979. This workers’ compensation claim was pending all duringrelevant times involving these proceedings (Stip. Par. 3 and Exhibit B). The employeeretained a law firm to represent him with respect to his claim for workers’ compensationbenefits (Stip. Par. 4).In March 1982, the employee executed an \”Authorization forRelease of Medical Record Information Pursuant to 29 C.F.R. ? 1910.20\” authorizingthe release by Respondent of \”any and all medical and exposure records\” to theattorneys retained by him as his \”designated representative\” as said term isdefined by 29 C.F.R. ? 1910.20(e)(3) (Stip. Par. 6 and Exhibit D). At the same time, theemployee executed a \”Request for Access to Medical or Exposure Records\”requesting that his designated representative, his attorneys, be provided access to\”all medical and exposure records\” (Stip. Par. 7 and Exhibit E). This requestwas apparently made pursuant to 29 C.F.R. ? 1910.20 and to joint guidelines developed andagreed to by Respondent and the employees Collective Bargaining Representative, suchguidelines being entitled, \”Guidelines Implementing the OSHA Standard on Access toEmployee Exposure and Medical Records.\” The request was made on a form provided bythe Respondent pursuant to these guidelines (Stip. Par. 5 and 7 and Exhibits C and E). Thestated purpose of the request for the records was \”investigation and legalrepresentation\” (Stip. Par. 6 and 7, Exhibits D and E). Nothing in the authorizationor the request for access limited the use of the records sought by the employee or hisattorneys (Stip. Par. 7).Copies of the above mentioned forms were sent by the employees’attorney on March 18, 1982 to Respondent along with a request for all of the employeesmedical and exposure records. Said request was received by Respondent on March 19, 1982(Stip. Par. 8 and Exhibit F). Subsequently Respondent, after obtaining a letter from itsattorney advising it on matters dealing with access to medical and exposure records underthe Standard, refused to comply with the employees request and continues to refuse tocomply with the aforementioned request (Stip. Par. 10, 11, Ex. H).Respondent had granted its other employees, and theirdesignated representatives, access to medical and exposure records and had guidelines forthat purpose (Stip. Par. 5). For example, in 1982 Respondent processed approximately tenrequests for access in its Electro-Motive Division and provided access in all but thepresent case (Stip. Par. 5). In this case, upon receipt of employee’s request for access,Respondent obtained a legal opinion from its counsel as to the validity of the request(Stip. Par. 5 and 11, Ex. H). Respondent’s Counsel’s opinion was that the request wasinvalid because it was made while the employee had a pending workers’ compensation claim,and that it sought to gather information, by use of the cited standard, that was deniedhim under Illinois Law (Stip. Exhibit H). Respondent denied the request and did notprovide the employees attorney with the employees medical and exposure records (Stip. Par.10).The laws in Illinois relating to injuries or diseases arisingout of the course of employment are the Illinois Workers’ Compensation Act, Ill. Rev.Stat. Ch. 48, ?? 138 et seq., and the Illinois Occupational Disease Act,Ill. Rev. Stat. Ch. 48, ?? 172.36 et. seq. (hereinafter collectively referred to as the\”Workers’ Compensation Law\”).The Illinois Workers Compensation Law does not provide for thetype of discovery usually associated with proceedings in the Federal District Courts orbefore Administrative bodies such as the Occupational Safety and Health Review Commission.However, both the Workers Compensation Law and the rules governing practice before theIndustrial Commission do provide their own form of discovery.The Illinois Workers’ Compensation Law provides that the \”Commission …or…Arbitrator shall on written request of either party… issue subpoenas for theattendance of such witnesses and production of such books, papers, records, and documentsas shall be designated in said application…\” (Ill. Rev. Stat. Ch.48, ? 138.16).Moreover, Section 8 of the Workers’ Compensation Law specifically provides for access tomedical records:Every hospital, physician, surgeon, or other person renderingtreatment or services in accordance with the provisions of this Section shall upon writtenrequest furnish full and complete reports thereof to, and permit their records to becopied by, the employer, the employee or his dependents, as the case may be, or any otherparty to any proceeding for compensation 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 governingpractices before the Industrial Commission. These rules provide for the issuance ofsubpoenas to compel witnesses and\/or documents to be produced at time of hearing (Resp.Ex. No. 1, Rule No. 3(4). Evidence dispositions can be taken before or after hearings;this includes the use of interrogatories (Resp. Ex. No. 1, Rule No. 3(5). Lastly aclaimant \/employee must submit himself to an examining physician, as properly arranged bythe employer (Resp. Ex. No. 1. Rule No. 2(10).As a result of Respondent’s refusal to provide the medical andexposure records to the employee, as requested, a complaint was filed with the Complainantalleging a violation of 29 C.F.R. ? 1910.20 et. seq. An inspection wasthereupon conducted of Respondent. A Citation and Notification of Penalty was issued onMay 17, 1982, as a result of the inspection, alleging a two-part, single, seriousviolation 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 contested theCitation, giving rise to this case. On August 3, 1982, pursuant to its request, theAuthorized Employee Representative, Local Union 719, United Automobile Aerospace andAgricultural Implement Workers of America (UAW), was granted party status in this case.On June 10, 1983, the Complainant filed a Motion which soughtto amend his Complaint and the Citation to allege a Willful-Serious violation of the Actand the regulations promulgated thereunder. This Motion further sought to amend theproposed penalty to $4,800.00. The Motion was addressed at the hearing held herein on June22, 1983. By reason of the fact that both parties indicated that neither of them wouldalter or change their planned introduction of evidence, whether the Motion was granted ornot, (Tr. 8), the Motion was held in abeyance and taken under advisement for laterdisposition at the conclusion of the case after all the parties had filed their post trialbrief and had an opportunity to brief the issue (Tr. 8).FINDINGS OF FACT AND CONCLUSIONS OF LAWI. WHETHER THE SECRETARY’S MOTION TO AMEND HIS COMPLAINT \u00a0\u00a0\u00a0 AND THE UNDERLYING CITATION AND NOTIFICATION\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 OF PENALTY SHOULD BE GRANTED On June 10, 1982, 12 days before trial, the Complainant filed aMotion to Amend his Complaint, which in essence sought to change the nature of the allegedviolation from serious to willful-serious, and which amended the proposed penalty to$4,800. Respondent objected to the amendment on the grounds that the case had been pendingfor approximately a year, the amendment was proffered less then two weeks before trial,and that it seriously changed the nature of the case.We find that since the Complainant has the burden of proving,by a preponderance of the evidence, the existence of its allegations and since bothparties indicated that their proofs offered at hearing would not be affected one way orthe other by granting the amendment (Tr. 8), we see no prejudice coming to Respondent byallowing the filing of said amendment.Case law is quite clear on the matter that in the absence ofprejudice, 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 OSHC1389, 1982 CCH OSHD ? 25,928 (1982); Brown & Root, Inc., 8 BNA OSHC 1055, 1980CCH OSHD ? 24,275 (1980). Accordingly, Complainant’s Motion to Amend his Complainant ishereby GRANTED. II. WHETHER 29 C.F.R. ? 1910.20 et. seq. VIOLATES SECTION \u00a0\u00a0\u00a0 4(b)(4) OF THE ACT, 29 U.S.C. ? 653 (b)(4)Respondent raises as the principal issue in this case, and asits primary defense to the Citation, that enforcement of the cited standard, by way of theCitation, under the facts of this case runs afoul of Section 4(b)(4) of the Act. Section4(b)(4) specifically mandates that:Nothing in this Act shall be construed to supercede or in anymanner affect any workmen’s compensation law or to enlarge or diminish or affect in anyother manner the common law or statutory rights, duties, or liabilities of employers andemployees under any law with respect to injuries, diseases, or death of employees arisingout of, or in the course of, employment.In its factual context Respondent raises the argument whether29 C.F.R. ? 1910.20, et. seq., \”on access to employee records canvalidly permit an employee with a pending workers’ compensation claim to have access tohis employer’s medical and exposure records for use as discovery in that case at a timewhen he is denied those records under state workers’ compensation law.\”Respondent essentially argues that the Illinois WorkersCompensation Law does not permit pretrial discovery by one party, the employee in thiscase, against the other, that being the Respondent; and that if the employee (or hisattorney) is allowed use of 29 C.F.R. ? 1910.20 to gain access to these records, theemployee would be granted a right that is denied him under Illinois compensation law andgive him an unfair advantage not otherwise provided for in the Workers’ Compensation Law.Respondent views the employee obtaining his medical andexposure records under 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, asthe granting of a right that\”would upset the careful balance that exists in theIllinois law in the trial of workers’ compensation cases and would grant rights toemployees that they do not possess under state compensation law.\”Respondent sites his expert witness in compensation law assupport for this effect (Tr. 80, 81, 89). Thus goes Respondents argument that to requireit to produce the medical and exposure records would run against the very prohibition ofSection 4(b)(4) of the Act since allowing the request for access in this case would bothenlarge the rights of employees and diminish the rights of employers under the Workers’Compensation Law. This in Respondent’s mind is a preemption of state law relating toworkman’s compensation. Respondent in support of its argument cites: UnitedSteelworkers of America v. Marshall, 647 F. 2d 1189, 1235-36 (D.C. Cir. 1980); cert.denied, 453 U.S. 913 (1981). We disagree with Respondent’s position for severalreasons.The thrust of Respondent’s argument in this case is that thecited Standard upsets what it perceives as a balance struck by the Illinois Workers’Compensation Law between employers and employees, and thus application of the Standardviolates the underlying enabling statute. The Standard does this, according to Respondent,by granting rights to employees which they do not have under Illinois law. We fail to seethis result.In finding our way in resolving the issues herein it is important to start at that modicumof legislative history that might impact upon our understanding of the full implicationsof Section 4(b)(4) of the Act. It appears that all that is known about 4(b)(4) is that atthe time of the passage of the Act, all fifty states had legislated some form of workers’compensation system that applied to work related accidents and injuries (A. Larson, 1Larson’s Workmen’s Compensation, Desk Edition, Section 5.30, at 2-17 (1980 with 1983Cumulative Supplement). We see that Congress, being concerned about state workers’compensation benefits, had no intention of infringing upon states’ rights in this area;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 note 55 at 25; LegislativeHistory of the Occupational Safety and Health Act of 1970, 92nd Cong., 1st Sess.(June, 1971) note 53 at 165).The United States Court of Appeals, in United Steelworkersof 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 the course of its reviewof the Secretary’s newly promulgated lead standard (29 C.F.R. ? 1910.1025, et. seq.).Finding the legislative history to be of little value in its review of this section (647F. 2d, at n. 70, 1234), the Court proceeded to seek the best reading of the section. TheCourt followed this path as a result of its opinion that a literal reading of it wouldindicate that \”any health standard that reduces the number of workers who becomedisabled will of course ‘affect’ and even ‘supersede’ workers’ compensation by ensuringthat those workers never seek or obtain workmen’s compensation benefits\” (647 F. 2d,at 1234-1235). What the Court did recognize here, as a general proposition, was thatalmost everything associated with the Act would have some practical effect on stateworkers’ 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 alreadyheld, Section 4(b)(4) bars workers from asserting a private cause of action againstemployers under OSHA standards. Jeter v. St. Regis Paper Co., 507 F. 2d (5th Cir.1975); Byrd. v. Fieldcrest Mills, Inc., 496 F. 2d 1323 (4th Cir. 1974). Second,when a worker actually asserts a claim under workmens’ compensation law or some otherstate law, Section 4(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 itself preempts anyelement of the state law. For example, where OSHA protects a worker against a form ofdisablement not compensable under state law, the worker cannot obtain state relief forthat disablement. Conversely, where state law covers a wider range of disablements thanOSHA aims to prevent, an employer cannot escape liability under state law for adisablement not covered by OSHA. In short, OSHA cannot legally preempt state compensationlaw, even if it practically preempts it in some situations. (647 F. 2d, at 1235-1236)The Court concluded that although the lead standard’s MedicalRemoval Programs may \”have a great practical effect on workmens’ compensation claims,it leaves the state schemes wholly intact as a legal matter, and so does not violateSection 4(b)(4).\” 647 F. 2d at 1236. The Court thus took the position that onlysubstantive intrusions into state workers’ compensation laws would be violative of Section4(b)(4). We likewise will follow this general principal. As will be discussed below wefail to find any substantive intrusions into the Illinois Workmens’ Compensation Laws, asargued by Respondent, which would justify our finding any involvement of Section 4(b)(4)in the enforcement of the Citation herein. At best Respondent’s claim rest upon aprocedural rule having little, if anything, to do with the basic rights and obligationswithin the Workmans’ Compensation Law, and has little impact upon the disposition of aworkman compensation claim which may go to hearing.Respondent makes much of the proposition that some documents used at a workman’scompensation hearing are only available to each party at the \”time of hearing\”and not before. In Respondent’s view \”the Illinois Workers’ Compensation Laws do notpermit pretrial discovery by one party from the other,\” and that \”the OSHA ruleon access to records cannot be used to override rights existing under state workers’compensation law.\” We find that the facts of this case and the implications reachedfrom these 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 areallowed (Ex. R-1, Rules 3-(4) and (5). Another example of prehearing discovery isCommission Rule No. 11-(7)(A)(3) and (C). This rule requires that, where an employerclaims insufficient information to determine liability for the payment of temporary totalcompensation, said employer shall have the responsibility of seeking out said information.The employee is required to provide the appropriate authorizations to the employer tofacilitate this release of medical information (Resp. Ex. No. 1). Additionally, thestatute empowers employers to require employees to undergo physical examinations, at theemployer’s expense, and receive the results from said examination. All of which is priorto hearing (Ill. Rev. Stat. Ch. 48, Sections 138.12 and 19(c). True, Illinois Workmens’Compensation Law does provide for the production of some documents only at time of hearingbut these provisions have the sole purpose of making sure that \”the process andprocedure before the Commission (shall) be as simple and summary as reasonably maybe.\” (Ill. Rev. Stat. Ch. 48, Section 138.16). Lastly, of course, Section 8 of theIllinois Workmans’ Compensation Law specifically provides for access to medical records,without any reference to the date of the compensation hearing.In view of the prehearing discovery allowed under the Worker’s Compensation Law, among itsother provisions, Respondent’s characterization that the timing of the production of amedical record is some sort of substantive right rings a hollow note; we believeRespondent incorrectly eschews what is clearly a minor procedural matter so as to achievea particular result herein. This we find is particularly true since as a matter of customand practice in workman’s compensation proceedings the very documents which now forms thebasis of this case are generally exchanged by parties prior to the compensation hearing(Tr. 90-91).We fail to find any substantive intrusions, as a matter of factand law, into the Illinois Workmens’ Compensation Law, as alleged by Respondent, (orotherwise under any other set of facts), in having an employer comply with the citedStandard. Looking directly to the Standard we find an absence of any provision providingworkers with greater or lesser benefits in state workmen’s compensation claims, nor cansuch an effect be attributed to this Standard. Additionally, we find no provisionproviding benefits for illnesses and injuries not recognized under some state’s workers’compensation laws. The only right that is provided by the cited Standard is the right ofan employee to control his own destiny by granting him the tools through which he canascertain what effects his work environment may have had, is having, or will have, on hisbody.True we do find some practical effects upon the timing of theexchange of some documents that may or may not be used in a workmancompensation hearing, but as a matter of law, this has no substantive significancewhatsoever and is nothing more than incidental in nature. Indeed the Courts recognize thatthe Standard may have some practical affect on compensation laws, but that this is of nolegal significance since the cited Standard, as written and as enforced, leaves theUnitedSteelwor compensation law wholly intact. United Steelworkers of America,AFL-CIO-CLC v.Marshall, et al, supra, at 1236. Additionally the Courts have recognized thatincidental intrusions into other areas of interest, resulting from compliance with theStandard, does not affect the validity of the Standard or render the Standardunenforceable or flawed. This is so because the Standard \”is a duly authorizedregulation, reasonably related to its underlying statute\”…and its goal is topromote healthful working conditions.\” Louisiana Chemical Association v. Benghamet 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 Respondent so dearly andassiduously 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 29C.F.R. ? 1910.20 does not violate Section 4(b)(4). Although there may be some practicalaffects on state workers’ compensation proceedings, and in this case such practicalaffects appear minimal, the early production of the requested records by way of theStandard has no substantive effects whatsoever. The Standard grants to parties underIllinois law no greater rights than already possessed. Respondent’s argument that 29C.F.R. ? 1910.20 is in violation of Section 4(b)(4) of the Act, as a matter of law, isfound in error.Respondent makes much of the fact that the employee, who hadrequested his medical or health records, had filed a workmens’ compensation claim for aninjury to his back…and that he would get and use the records, prior to the compensationhearing.Indeed, Respondent’s arduously proclaims that by reason of this, to find the Standardenforceable and require production of the medical records to the employee\/claimant, wouldbe tantamount to making employers \”helpless\” in preparing their defenses toclaims, thus \”materially changing the structure and fabric of Illinois Law\” andfinally creating a \”one sided proceeding\” violating \”the dictates of dueprocess of law.\” We find it difficult to grasp the enormity of the situation, asproclaimed by Respondent, for several reasons. First, as above mentioned, there issignificant pre-hearing discovery provided by the Illinois Compensation Law and RulesGoverning Practice used before the Industrial Commission hearing these cases (pp. 12, supra).Secondly even assuming, arguendo, that everything Respondent claimed the employee wasgoing to do with the records he in fact did do, and the employee had gained an advantage,we would still, nonetheless, find Respondent’s argument without persuasion since theCourts have recognized that such advantage is incidental and of no legal consequence whenlooking to the promotion of healthful working conditions under the Standard and Actitself. Louisiana Chemical Association v. Bingham et al, supra at 1145[[4\/]].Lastly Respondent’s argument carefully omits or glosses over some of the vital facts ofthis case, and the practical and significant ramifications which would result if we wereto acquiesce to it’s argument.Looking to the record of this case, we find respondentcarefully omitting any reference to the fact that the employee from the start requestedboth his \”medical and exposure\” records (Stipulation of Fact, Para. 7 and 8, Ex.D, E, F).\u00a0 Respondent’s response to this request was that no documents of anykind were to be provided to the employee, and indeed none were provided (Stipulation ofFact, Para. 10, 11, Ex. H).\u00a0 With respect to Respondent’s failure to provide exposurerecords, these records hardly seem relevant to a back injury claim.\u00a0 Health recordswhich might show health problems by reason of exposure to toxic substances is also hardlya type of record which might relate to an employee’s back injury.\u00a0 That the employeesrequest was made solely for the purpose of getting medical records for use in hiscompesation case is not clear from this record, and was certainly not definitelyknown to Respondent. [[5\/]]\u00a0 The request came approximately three years after thefiling of the workmans’ compensation claim.\u00a0 The employee informed the ComplianceOfficer who investigated the case of his carobn monoxide exposure (Tr. 37).\u00a0 Hecomplained of chemical exposure in his complaint to OSHA.\u00a0 He worked near tanksholding caustic chemicals and was exposed to welding fumes (Tr. 37,44).It would hardly seem reasonable to any fair minded person thatunder the circumstances of this case, General Motors Corporation is a \”helpless\”employer, as it characterizes itself, being put through the paces by an employee who, forwhatever reason, sought to obtain his medical and exposure records, as did the employee inthis case. Respondent’s logic seems a bit askew in its position that the Illinois law onworkmens’ compensation would be turned on its head if enforcement of the Standard allowedfor an employee to get his medical and exposure records prior to a compensation hearingwhich involved a back injury. If anything, it is the cited Standard that is being set uponwhen an employee, who complains of exposure to carbon monoxide and other chemicals, isdenied his medical and exposure records solely by reason of the fact that three yearsearlier he filed a workmans’ compensation claim for a back injury. We find the actions ofRespondent in this regard most egregious since only a part of the records sought by theemployee might have had some relevance to the workmans’ compensation claim. We can notfind any real practical disadvantage to the Respondent, of any significance, by way of theemployee having access to its own medical and exposure records prior to the compensationhearing date.As above discussed we do not find any legal or factualsignificance in the application of Section 4(b)(4) by reason of the requested documentsbeing provided under the cited Standard, albeit that part of said documents might possiblybeing used later in a workmens’ compensation proceedings. Quite the contrary, we wouldfind considerable harm done to the purposes of the Act, the rights of the employee, andthe benefits due 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 does not violate Section4(b)(4) of the Act, we find a rather significant synergistic practical result involvingand combining attainment of the purposes of the Act with providing an employee with atimely method to recognize occupational dangers to his health and whether he had indeedsuffered adversely from the effects of his exposure to the hazardous occupational safetyor health condition. We find, in rejecting Respondent’s argument, a practical andequitable result, comporting with fundamental fairness and ordinary due process.The employee access rule, 29 C.F.R. ? 1910.20 et seq.,is essential to generate information called for by key provisions of the Act. As the HouseCommittee stated, \”[a]dequate information is the precondition for responsiveadministration of practically all sections of this bill.\” 45 Fed. Reg. 35245.Adequate standards cannot be formulated by OSHA without the participation of employees,whose firsthand experience is frequently critical to bringing a hazard to the attention ofOSHA under 29 U.S.C. 657 (f)(1). 45 Fed. Reg. 35245. To participate, employees need allavailable information about hazards in their workplaces. Employee participation inachieving safer, healthier workplaces is crucial since, as the Supreme Court hasrecognized, \”OSHA inspectors cannot be present around the clock in everyworkplace.\” Whirlpool Corp. v. Marshall, 445 U.S. 1, 13 (1979). This isparticularly true at the present time when government emphasis is off regulatoryenforcement. Currently there is more of an onus upon the employee to be on the alert foroccupational safety and health hazards so as to avoid their dangers. Uninterrupted accessto ones own exposure and medical records could not be more important to the employees wellbeing, especially in a time when exposure to exotic and unusual chemicals have an effectupon individuals only discernable through close medical observations. [[6\/]] As pointed out by the Authorized Employee Representative in its Brief, if we were to lookat the problem in its practical day to day and on the job setting, to allowRespondent’s position would produce anomalous response. For instance, an employee deniedaccess to his medical and exposure records would not be able to decide intelligentlywhether to seek medical treatment for suspected injuries other than those of the workmans’compensation claim. A worker under Respondent’s proposed interpretation would be deniedinformation concerning his exposure to toxic materials at least for the duration of hisclaim, including appeals, or until the Illinois three year statues of limitations had run.An employee with an injured back would be unable to learn whether he had been exposed toasbestos or other toxins.\u00a0 Family members who may have been exposed to toxicmaterial, through contact with the employee, would be deprived of all knowledge necessaryto seek treatment under Respondent’s rule. Finally, as argued by the Authorized Employee Representative, to follow Respondent’sargument on no access would in essence harm workplace health and safety by denyingnecessary information to all employees who happened to have a workers’ compensation claim.Such a claim could be pending for years. During this time the Employer could deny hisemployee crucial knowledge affecting medical treatment — even for conditions whollyunrelated to the compensation claim. For instance, an employee with a claim pending for afinger injury could be denied information about exposure to toxic chemicals affecting hislungs. This information might be needed by the employee’s treating doctor. In effect anexposed employee or a sick employee would have to choose between his State sanctionedcompensation claim or his health. To follow Respondent’s argument and interpretation ofSection 4(b)(4) would in effect be a danger to employees who have compensation claimspending and who needed access to medical records for other occupational safety and healthmatters.Respondent’s approach would lay the Act’s procedures open tocynical gamesmanship in which a worker with a compensation claim is forced to choosebetween filing the compensation claim or seeking access to his medical and exposurerecords. Thus Respondent’s attitude would chill workers’ compensation remedies mandated byIllinois Law …which in itself could be said to be a substantive diminishment ofcompensation laws on employment injuries. Frankly we find this situation more of a legaland practical reality than the one forwarded by the Respondent as allegedly impacting onsubstantive rights under the Workmans’ Compensation Law.While Respondent portrays the employee who requested hismedical and exposure records as an individual who seeks an advantage in a workmens’compensation hearing, we see it otherwise when looking to the totality of the situation.We see Respondent’s actions as a definitive effort to disenfranchise the employee from thebenefits of the Act by prohibiting him, and other employees similarly situated, fromaccess to their own medical and exposure records if they choose to file a workmans’compensation claim. The fact that an employee may get its medical records earlier thenRespondent believes he should pales thin in light of the practical effects on the abilityof the employee to recognize occupational safety and health hazards discernable onlythrough the medical and exposure records. We do not find that depriving the employee ofthis substantial and important adjunct to effective occupational safety and health hazardrecognition, as obtainable under 29 C.F.R. ? 1910.20, is consistent with any reasonableinterpretation of the Act or the Illinois Workmens’ Compensation Law.[[7\/]]SUMMARY Illinois Workman Compensation legislation seeks to provide employees with \”prompt andequitable compensation for their injuries\” and with \”efficient remedies.\”Kelsay v. Motorola, 74 Ill. 2d 172, 180-81, 384 N.E. 2d 353, 356-57, 23 Ill. Dec. 559,562-63 (1979). No part of the Illinois workers’ compensation statute forbids employeesaccess to their own medical and exposure records, and Respondent has cited no suchstatutory authority for that position (Resp. Br. pp. 12-14). We fail to dicern timelyemployee access to records as having any damage, in any way, on the Workers’ CompensationLaw dealing with compensating employees for all accidental injuries arising out of theircourse of employment or upon the employer ability to defend such claims. Compliance withan employee’s records request cannot possibly be used to force compensation where it isnot warranted, and that is the simple truth of this case.Liabilities of an employer to pay compensation for injuries are not increased byemployee’s access to records under the Standard. There is no change of substantive rightsunder the Standard. There are no new causes of action created. There are no additionalbases for recovery allowed. The number of weeks of compensation allowed by Illinois is notincreased. Because there is no substantive change in employees rights, Section 4(b)(4) isnot involved let alone contravened. No disclosure resulting from employee access under thecited Standard can affect the employer’s legal burden, which is to compensate for injuriescovered by the Illinois statute. In exchange for the Illinois Workman’s Compensation Law’sdenial of common law tort defenses, the amount of employer’s liability is limited bystatute to a strict schedule. Access to records, therefore, cannot affect whether theWorker’s Compensation Law would regard an employer as liable for compensation or amountsto be paid if liability is determined.Respondent’s claim that pre-hearing access by both parties tothe records, 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 is one in which employerand employee each gave up tort claims and defenses in favor of the certainty of astatutory schedule. Kelsay v. Motorola, 74 Ill. 2d 172, 384 N.E. 2d 353 (1979).Employee access to medical records cannot affect this statutory balance, especially inview of the fact that the Illinois Workmens’ Compensation Law, as well as the Rules ofPractice before the Illinois Workmens’ Compensation Commission, provide for significantpre-hearing discovery, as above discussed.Accordingly, we find no enlargement, or affect in any manner,by the Standard on the common law or statutory rights, or duties of the workmens’compensation laws and as such reject Respondent’s arguments that Section 4(b)(4) hasapplication in this case.III. WHETHER RESPONDENT VIOLATED29 C.F.R. ? 1910.20(e)(1)(i) and (e)(2)(i)In the present case it is undisputed that the individual makingthe request for medical and exposure records was an employee of Respondent. Moreover,there is no dispute that Respondent failed to provide the employee, through his authorizeddesignated representative, access to the employee’s medical records and exposure records,although it acknowledged that such records did exist. The facts show that the guidelinesimplemented by the Respondent to govern such access were compiled with by the employee orhis representative. Moreover, the employer’s guideline did not contain a prohibitionagainst the release of such information to an employee who had a pending workmen’scompensation case against the Respondent (see generally Stipulation of Facts andAdmissibility of Documents and the Exhibits attached thereto).In the absence of any statutory or regulatory infirmity, it isevident that the request of the employee’s designated representative fell within thepurview of the standard and was in conformance with Respondent’s own guidelines therein.Respondent’s failure to provide access to the employee’s designated representative of therequested medical records and 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 to be serious innature, within the meaning of Section 17k of the Act. (See pp. 18-20 supra). Tobetter understand the serious nature of the violation resulting from Respondent’s actions,it bears repeating what had been earlier stated about the importance of speedy anduninterrupted compliance with the standard.In the case of Uniroyal, Inc. 1983 CCH OSHD ? 26,439, westated:\”Speedy and ready access to this information by employees,or their designated representative, is paramount as a first step in avoiding seriousillness and injury caused by exposure in the workplace to the toxic substance. The actionof Respondent in delaying and hindering access of the employee to this vital information,which is made readily accessible by reason of the records access regulation, represents asignificant hazard to the safety and health of employees.\” (slip opinion, p.14) The Citation alleging a serious violation will accordingly beaffirmed.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 IV. WHETHER THE SERIOUS VIOLATION OF\u00a0\u00a0\u00a0 29 C.F.R ? 1910 20 ET SEQ CONSTITUTED A\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 \u00a0 WILLFULVIOLATION OF THE ACTThe Complainant in this case alleged that the conduct ofRespondent in denying 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 it involved aconscious and deliberate act to disregard the standard with full knowledge of what conductwas required under the standard. The Respondent, on the other hand, maintains that eventhough it denied access of the records such denial was neither indifferent to nor indisregard of the regulation’s requirements. Respondent points out that once it receivedthe employee’s request, it sought and followed the advice of its attorney; its counsel’sadvice was that the access regulation could not validly permit access to medical andexposure records while a workers’ compensation claim is pending.Respondent argues that an action cannot be willful unless it istaken \”in disregard of the action’s legality,\” citing P.A.F. EquipmentCompany, Inc., supra; Intercounty Construction Co. v. OSHRC, 522 F. 2d 777, 779-80(4th Cir. 1975), cert. denied, 423 U.S. 1072 (1976); Donovan v. CapitalCity Excavating Co., 712 F. 2d 1008, 1010 (6th Cir. 1983). Respondent goes on to arguethat it did not act in disregard of the legality of its action. In fact, by seeking anopinion from its counsel, it took the most positive-good faith-step it could have takenwith regard to determining the legality of its action and as such acted in good faith.Respondent cites, as support for this position 52 Am. Jr. 2d at pp. 236-37, and Laceyv. Porter, 37 ? 635, 637 (Cal. 1894) in which the court stated:\”taking the advice of counsel, …. tends to show goodfaith and honest motives and the absence of malice…\”Respondent further relies on the Commission’s ruling in MelJarvis Construction Company, Inc., 10 BNA OSHC 1052, 1053, 1981 CCH OSHD 25,713 forthe proposition that \”a violation cannot be willful if the employer had a good faithopinion that the condition in question conformed with the requirements of thestandard.\”While Respondent argues that its actions were based on a legalinterpretation and guidance from its counsel, and as such if there was a violation of theAct it most assuredly by reason of this was not willful in nature, we find the Complainantdrawing us to the specific facts of the case, maintaining that Respondent’s knowingrefusal amounted to a willful violation.Looking to applicable case law we find that the majority ofcourts have found a willful violation as one involving voluntary action, done either withan intentional disregard of, or plain indifference to, the requirements of the statute. GeorgiaElectric Company v. Marshall, 595 F. 2d 309 (5th Cir. 1979); Western WaterproofingCompany v. Secretary of Labor, 576 F. 2d 139 (8th Cir. 1978); IntercountyConstruction 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, a violation is willfulwhen it is intentional, knowing or voluntary, C.N. Flagg & Company, Inc.,1974-1975 CCH OSHD ? 18,686 (R.C. 1974); or involves an element of indifference to thelaw. F.X. Messina Construction Corp. v. OSHRC, 505 F. 2d 701 (1st Cir. 1974).With all due respect to Respondent’s counsel, we cannot allowRespondent to hide behind asserted legal defenses as a shelter from conscious andintentional defiance of the law. Respondent ran the risk that its strained interpretationof the access regulation would prove to be wrong and must now bear the consequences ofthat risk. As a casual, but clairvoyant, observer of life once said, \”you pays yourmoney and you takes your choice.\” Respondent made its choice in denying its employeessignificant and important health and safety benefits in choosing not to comply with thestandard. In doing so it singled out a particular segment of its employee population. . .i.e., those who had filed a workman’s compensation claim against it. We find the impactand implication of this choice of action by Respondent all but too clear; we see theseactions of Respondent as deliberate in meaning and purpose. Those employees who wereengaged in workmen’s compensation claims would be dispossessed from and denied thebenefits of 29 C.F.R. ? 1910.20 et. seq. We reach the conclusion that thiswas Respondent’s purpose and this was Respondent’s intention.I will not re-review Respondent’s flimsy rationale of the sinsof an employees’\/claimant’s early access to his medical or exposure records which would begarnered through an employer’s compliance with the cited standard; this being, accordingto Respondent, as a just and decent reason for finding other then a willful violation ofthe Act or for finding no violation at all. I merely look to the totally of situation inwhich an employer refuses all medical and exposure records to an employee who filesa workman’s compensation claim, regardless of the nature of the claim and the extent ofthe health and exposure records.In the instant case we have an employee who’s workman’scompensation claim involved a back injury. This employee, a long-term employee ofRespondent, held many different jobs in many different areas of Respondent’s facility.While he complained of exposure to carbon monoxide, who can say what other unsafe orunhealthful conditions he may have been exposed to during the course of his employment.His job history reveals that he has been exposed to all areas of the facility and to suchdangerous substances as welding smoke and fumes, dust from grinders and noise from airhammers (apparently during the period he was Fitter Locomotive), bulk oil, acids,carboids, coolants, grease, gasoline and other inflammable materials (as a stockkeeper),paint, dust and dirt (as Service work – Class \”B\”), exhaust fumes (asTrucking-Automatic), noise from engine test and air hammers (as Crib Attendant) (Stip. ?8 and Ex. G). Without the requested records this employee is severely handicapped in hisattempt to determine what occupational dangers to his health have been or are now present.In this case we are not dealing with an employer who held backa portion of a medical record dealing with the subject matter of a workmen’s compensationclaim, and then claiming the good faith belief in the application of Section 4(b)(4).Perhaps under these circumstances we would find that the violation was other then willful.But this is not the case herein. The cold hard facts are that Respondent refused allmedical and exposure records to an employee who had engaged it in a workman’scompensation proceeding. It refused access to exposure records when such were obviouslynot a part of the workman’s compensation proceeding; it refused access to medical recordshaving nothing to do with the nature of the injury involved in the compensation claim. Wefind the underlying message of Respondent’s to its employee’s discernable and decisive —don’t file any workman’s compensation claims if you want access to your medical andexposure records–don’t seek the relief provided under the Standard if you file aworkman’s compensation claim.Notwithstanding Respondent’s argument made herein, we find thatRespondent fully and deliberately chose to disregard the requirements of the Act andthwart compliance with 29 C.F.R. ? 1910.20 et. seq. [[8\/]] We findthat Respondent’s actions were purposeful in nature designed to achieve a predictableresult. Accordingly we find in Respondent’s actions an intentional and knowing conductdesigned to avoid compliance with the Standard and as such is determined to be willful innature. The Citation will thus be affirmed as a Willful-Serious Citation.PENALTYIn this case we are involved with a standard that for employeesrepresents the most effective and expedient means for learning whether or not they are orhave been exposed to unsafe or unhealthful work conditions, and whether these workconditions are or have been effecting their health.The facts of this case rather plainly speak for themselves showing that Respondentpurposefully denied to certain of its employees the benefits of the Standard. Respondent,contrary to the agreements reached with the employee’s Collective BargainingRepresentative on access to medical records, began a program of singling out thoseemployees who filed out workmen’s compensation claims to deny them benefits of this mostimportant standard. We find it more than coincidental that Respondent’s refusal to allow access to medical orexposure records involved only those employees who filed workman’s compensation claims. Wefind it more then coincidental that the refusals for access followed the ostensibleobtaining of legal advise claiming involvement of Section 4(b)(4) of the Act, when infact, none obviously existed. It is more then coincidental that all medical and exposurerecords were denied, whether they related to the subject matter of the workman’scompensation claim or not.We have found Respondent’s actions willful in nature since theywere, deliberate, intentional and in complete disregard of the mandated purpose of thecited standards. But we find more than that in this case.Respondent’s action went beyond intent; they were purposeful innature aimed at the identifiable segment of its workforce, and solely designed to burdenor discourage employees who might seek redress for injuries under the States Workmen’scompensation law by denying them benefits obtainable under the Standard. Respondent’sconduct placed employees in the untenable position of having to chose between the benefitsof the Act, as provided under the cited Standard, or continuation of their workman’scompensation claim. These egregious actions of Respondent not only tore at the basicfabric of the Act, but by their very nature sought to suborn the Acts remedial purposes.After considering those factors setforth in section 17(j) of the Act, the above mentioneddiscussion, and considering the record as a whole, we find it appropriate to assess acivil penalty of $10,000.00.ORDERBased upon the foregoing Findings of Fact and Conclusions ofLaw, as set out in my Decision and Order, and for good cause shown, it is ORDERED:1. That item 1A and 1B of the Willful-Serious Citation isAFFIRMED. 2. A penalty of $10,000 is assessed.Edward A. BobrickJudge, OSHRCChicago, IllinoisDATED: March 19, 1985FOOTNOTES: [[1\/]]Chairman Foulke took no part in the consideration ordecision of this case.[[2\/]]The section provides in full:Nothing in this Act shall be construed to supersede or in anymanner affect any workmen’s compensation law or to enlarge or diminish or affect in anyother manner the common law or statutory rights, duties, or liabilities of employers andemployees under any law with respect to injuries, diseases, or death of employees arisingout of, or in the course of, employment.[[3\/]]At the time of the alleged violation, the cited provisionstated:? 1910.20 Access to employee exposure and medical records.(e) Access to records-(1) General. (i) Wheneveran employee or designated representative requests access to a record, the employer shallassure that access is provided in a reasonable time, place, and manner, but in no eventlater than fifteen (15) days after the request for access is made.The records access rule was amended in 1988. Final Rule: Access to Employee Exposureand Medical Records, 53 Fed. Reg. 38,140 (Sept. 29, 1988). However, those amendmentshave 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 access of eachemployee and designated representative to employee exposure records relevant to theemployee….[[5\/]]Also, GM stipulated that \”for purposes of this caseonly\” it would not contest the Secretary’s allegation that Havell was exposed totoxic substances or harmful physical agents within the meaning of 29 C.F.R. ? 1910.20.(Access to records under the rule must be provided only regarding employees exposed tothose hazards.)[[6\/]] The court stated that the legislative history of the Actcontains essentially nothing about ? 4(b)(4), and that the provision is \”vague andambiguous on its face.\” 647 F.2d at 1234 and n. 70. The court noted that any OSHAhealth standard might have some practical effect on WC claims — by reducing the number ofaccidents and claims, for example.It held that Congress did not intend to prohibit such practicaleffects. Instead, the court saw two plausible meanings for ? 4(b)(4) — it bars (1) aprivate cause of action by employees against employers under OSHA standards, and (2)claims in non-OSHA cases (including WC cases) brought by employees that the Act orregulations thereunder preempt any element of the applicable law. [[7\/]] The IIC has the same jurisdiction, powers and duties under both Acts. Id.,? 172.48.[[8\/]] Statutes should be construed so as to avoid a conflict between them, if possible. See,e.g., H. P. Welch Co. v. New Hampshire, 306 U.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., amember of the IIC, to that effect. However, Miller acknowledged the validity andenforceability of the disclosure provisions of the Illinois Acts discussed below.[[10\/]] That section provides:. . . Every hospital, physician, surgeon or other personrendering treatment or services in accordance with the provisions of this Section shallupon written request furnish full and complete reports thereof to, and permit theirrecords to be copied by, the employer, the employee or his dependents, as the case may be,or any other party to any proceeding for compensation before the Commission, or theirattorneys . . . .[[11\/]] The relevant portion of that section provides:The Commission upon application of either party may issuededimus potestatem directed to a commissioner, notary public, justice of the peace or anyother officer authorized by law to administer oaths, to take the depositions of suchwitness or witnesses as may be necessary in the judgment of such applicant . . . [[12\/]] The relevant portion of that section provides:The Commission, or any member thereof, or any Arbitratordesignated by the Commission, shall on written request of either party to the dispute,issue subpoenas for the attendance of such witnesses and production of such books, papers,records and documents as shall be designated in the applications, . . . .See also Id., ? ? 138.12, 172.47(a) (physicians’reports must be made available to other party by time of trial); ? 138.19(c) (IIC mayrequire medical examination of employee, with copy of report to both parties). TheIllinois Acts have been revised in some respects. E.g., Ill. P. A. 86-998, ? 1,eff. Dec. 18, 1989. None of those changes affect these cases, however.[[13\/]] OSHA stated:3. Privileged records. The question has been raised whether anemployer must provide access to records which are created solely in anticipation oflitigation and which are otherwise privileged from discovery under the prevailing rules ofprocedure or evidence. An example could be a medical opinion prepared for the employer forpurposes of aiding the employer’s case by a company physician after a workmen’scompensation claim has been filed. It has been OSHA’s interpretation that the standarddoes not contemplate coverage of such a record if the record would not otherwise beavailable to the employee or his attorney in the litigation. On the other hand, themere fact that a medical record (see definition at 29 CFR 1910.20(c)(6)) notoriginally created in anticipation of specific litigation will ultimately be used asevidence in a private legal proceeding does not put it outside the scope of the standard.Id., col. 3 (emphasis added). The preamble to the 1988revision of the standard reaffirmed and reprinted the 1981 interpretation, in discussingthe term \”employee medical record.\” Final Rule: Access to Employee Exposureand Medical Records, 53 Fed. Reg. 38,140, 38,150-51 (Sept. 29, 1988).[[14\/]] The burden of proving the invalidity of a citedstandard is on the 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 from OSHA jurisdiction under ?4(b)(1) of the Act is on employer).[[15\/]]The employer in Crowell v. Benson protected thefact that the law permitted ex parte inquiries by the judge regarding the merits of thecase. Id. Therefore, the employer argued unsuccessfully, one party could prevail based on\”unknown sources of information,\” depriving the other of a fair hearing. Id. Thepractice challenged in Crowell v. Benson is also authorized by ? 138.19(b) of theIllinois Acts.[[16\/]]The Illinois Acts contemplate public hearings, with afull opportunity for each party to present evidence and meet opposing evidence, includingsurprise evidence. Decisions are to be based on written \”findings of fact andconclusions 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 the relevant proceedings before the IIC arecompleted. ? 138.19(f), (g). Thus, a party claiming that due process was denied beforethe arbitrator may obtain meaningful review of the issue before any rights are irreparablyaffected. See, e.g., In Matter of Claim for Compensation under LHWCA,889 F.2d 626, 630-32 95th Cir. 1989) (opportunity for meaningful review of initialdecision within WC tribunal preserves due process), cert. denied sub nom,Louisiana Insurance Guaranty Ass’n v. Abbott, U.S., 110 S. Ct. 1813 (1990). There aresufficient protections under Illinois Acts to avoid unfairness to an employer faced withsurprise evidence. (We note that no actual surprise evidence has been alleged here.)[[17\/]] The Secretary notes a statement in a recent courtdecision that a willful OSHA violation may be found \”even if [the employer] has agood faith belief that its own policy is wiser.\” RSR Corp. v. Brock, 764 F.2d355, 363 (5th Cir. 1985). However, the court found willfulness in that case because RSRknew that its policy did not conform to the law. Here, the evidence shows that GM had agood faith basis for claiming that its conduct was consistent with the law.[[18\/]] The union party has not sought to overturn thestipulations.[[19\/]] The records access rule was not intended to covertrips, falls, cuts, and similar non-chronic traumatic injuries. Preamble to Final Ruleon Access to Employee Exposure and Medical Records, 45 Fed. Reg. 35,212, 35,258,35,267 (1980) (definition of \”toxic substances and harmful physical agents\” [?1910.20(c)(11)] \”excludes traumatic safety hazards such as trips, falls, cuts, etc..but includes repetitive motion (ergonomic) stresses due to their subtle and chronicnature\”).[[20\/]]We also find it difficult to ascribe willful disregardto GM in light 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). Asdiscussed in the next section, they concluded that a records access request related to WCproceedings is essentially unenforceable because failure to comply with it is deminimis. Although that conclusion is erroneous, it lends some credence to GM’s initialreaction to Havell’s request.[[21\/]]The union argues that GM’s noncompliance was shown to bewillful because GM’s guidelines for providing employees access to medical and exposurerecords did not make an exception for records related to WC claims. GM’s guidelines hadbeen developed jointly with the union. We reject the union’s argument because there is noshowing that the topic of WC related records was raised by the union or considered by GMduring development of the guidelines.[[22\/]] One of the employers had denied access specificallybecause it considered the use of the records access standard for purposes of discovery inWC cases to be inappropriate. The Commission majority stated:Even if we were to find that there was a violation, we wouldfind that, under the circumstances of this case, it was de minimis. A de minimisviolation is one in which there is technical noncompliance with a standard but thedeparture from the standard bears so little relationship to employee safety or health thatit is inappropriate to assess a penalty or require abatement of the violation. . . Therecords here were sought for discovery purposes for a proceeding unrelated to the safetyand health purposes of the Act . . . .11 BNA OSHC at 2100 n.8, 1984-85 CCH OSHD at p. 34,709 n.8(citations omitted).[[1\/]] Jurisdiction of the parties and the subject matterherein is confirmed upon the Occupational Safety and Health Review Commission by Section10(c) of the Act.[[2\/]] ?1910.20 Access to employee exposure and medicalrecords.(e) Access to records (1) General (i). Whenever anemployee or designated representative requests access to a record, the employer shallassure that access is provided in a reasonable time, place, and manner, but in no eventlater than fifteen (15) days after the request for access is made.(ii) Whenever an employee or designated representative requestsa copy of a record, the employer shall, within the period of time previously specified,assure that either:(A) A copy of the record is provided without cost to theemployee or representative,(B) The necessary mechanical copying facilities (e.g.,photocopying) are made available without cost to the employee or representative forcopying the record, or(C) The record is loaned to the employee or representative fora reasonable time to enable a copy to be made.(2) EmpIoyee and designated representative access -(1)Employee exposure records. Each employer shall, upon request, assure the access of eachemployee and designated representative to employee exposure records relevant to theemployee. For the purpose of this section, exposure records relevant to the employeeconsist of:(A) Records of the employee’s past or present exposure to toxic substances or harmfulphysical agents,(B) Exposure records of other employees with past or presentjob duties or working conditions related to or similar to those of the employee,(C) Records containing exposure information concerning theemployee’s workplace or working conditions, and(D) Exposure records pertaining to workplaces or workingconditions to which the employee is being assigned or transferred.[[3\/]] Both a trial transcript and Stipulation of Facts make upthe record in this case. References to the Stipulation of Facts and Admissibility ofDocuments executed by the parties shall be denoted as \”Stip. Par.__. Transcriptreferences are denoted as \”Tr.__.\” Trial exhibits are denoted as \”Comp. Ex.No.__ or \”Resp. Ex. No.__.\”[[4\/]] A claim concerning 29 C.F.R. ? 1910.20 et seq.,analogous to Respondent’s claim herein was placed before the Court. The Court dealt withit in a very practical manner stating: \”LCA … asserted that the agency’s principal motivation for enacting the rule was togain a benefit for employees and unions which they have been unsuccessful in securingthrough the NLRB. Specifically, the benefit of records access. The court must make littleof such an allegation for two reasons. First, the records access rule is a duly authorizedregulation, reasonably related to its underlying statute. While the rule undoubtedlyenhances the bargaining status of unions, it is plain on the record that this result wassimply incidental to fulfilling the statutory goal of promoting healthful workingconditions.\” 550 F. Supp. at 1145[[5\/]] We assume these records exist since Respondent never replied to the request of theemployee indicating that no exposure records or health records existed. Looking to themanner in which Respondent proceeded if it is later found that no exposure or other healthrecords exist, we would be kidding ourselves to believe that Respondent would have turnedover such records in any event if they had in fact existed at the time of request (see pp.26-29, infra).[[6\/]] Access to records enhance the ability of employees todecide whether 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 all evaluation requests come fromworkers or their representatives. 45 Fed. Reg. 35246. Access to records enables employeesto provide NIOSH with information that it requires to set priorities on its limitedresources to conduct Health Hazard Evaluations. Respondent has offered no reason why thiswork of NIOSH should suffer because of the existence of a worker’s compensation claim.Additionally, Respondent’s refusal to abide by 29 C.F.R. ? 1910.20 undermines the verypurpose of the Act in preventing employee ignorance about workplace hazards; a resultCongress specifically sought to eradicate. The House Committee on Education and Laborstated:Basically the worker needs to have adequate advance knowledgeof hazards in order to protect himself from damaging exposures…Since inadvertentexposure to unknown products or processes often causes severe and immediate reactions, theexposed worker must know what type of exposure he has suffered in order to use propertreatment. The worker especially needs this information in cases of toxic substances whichhave delayed or latent ill effects. Legislative History at 150.Additionally, Respondent’s discussion of the recently enactedIllinois access to records statute is interesting but factually incorrect, and theinference drawn from it, regardless of the facts, erroneous. We see no indication that theHouse, Senate, or Governor ever considered this legislation in terms of its interactionwith the state’s workmen’s compensation laws. Furthermore, the House passed version of thebill provided for access to medical records, a provision not included in the Senate passedversion. The House ultimately accepted the Senate’s version of the bill. Thus thelegislation which reached the Governor’s desk did not provide for access to medicalrecords. However, in printing the legislation for signature, a poor proofreading job hadbeen performed and thus, although access to medical records had been deleted, all suchreferences had not been removed from the legislation itself. The Governor’s amendatoryveto of those references therefore, was merely a completion of the proofreading of thelegislation. (See Illinois 1983 House debate on House Bill No. 2035, May 19, 26 andOctober 19; Illinois Senate 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 thelegislativehistory of the Illinois Compensation Laws, other then to say that we find Respondent’sargument concerning the so-called \”balance\” struck by Illinois law a product ofRespondent’s creative thinking. As in most administrative law proceedings, discovery hasbeen severely limited or proscribed in the name of expeditious handling of cases. Such anintent is evident in Occupational Safety and Health Review Commission proceedings and wasclearly stated by the Illinois legislature in the body of the statute itself. Indeed,Illinois courts have recognized that the purpose of the Workmen’s Compensation Act is toprovide prompt, sure and definite compensation, together with quick and efficient remedy,to employees for every injury, accident and\/or death suffered in the course of employmentwithout having to show negligence on the part of the employer but subject to thelimitations 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. IndustrialCommission, 62 Ill. 2d 556 (1976); Laffoon v. Bell & Zoller Coal Co., 65Ill. 2d 437 (1976); Kelsay v. Motorola, Inc., 74 Ill. 2d 172 (1978).[[8\/]] Respondent has directed our attention to the case ofTrans World Airlines, Inc. v. Thurston, ______U.S.____ 53 2W 4024 (1985) (hereinafter\”TWA\”) for the proposition that if a company seeks advise of counsel, and actsupon same in violation of the law, it cannot be found guilty of a willful violation. Aftera careful reading of this case, we find the holding of the court inapposite to the factsof the instant case. In TWA the court found that \”TWA officials acted reasonably andin good faith in attempting to determine whether their plan would violate the ADEA,\”(Age Discrimination in Employment Act 29 U.S.C. ? 621 et seq.) Quite clearly thecourt’s ruling does not provide unconditional absolution from one’s legal transgressionsif the transgression could be traced back to reliance upon advise of counsel. In TWA theemployer sought conformance with the ADEA in a very technical work setting having complexlegal and factual elements to it. The employer’s acts, which ultimately resulted in aviolation of the ADEA, were rationally designed from the start, aimed at gaining compliancewith ADEA, while attempting to comply with the collective-bargaining agreement. In theinstant case we find an employer seeking to avoid compliance with the Act, not oneattempting compliance as we do in TWA. We fail to find in Respondent’s actions that degreeof reasonable conduct and good faith used as a touchstone for the Court in TWA to findother than willful conduct (pp. 26-28, supra). That element is absent in this casewhen viewing the realities of the legal proposition relied upon. Accordingly, we find noapplication of the holding in TWA to the legal or factual issues of this case.”