” SECRETARY OF LABOR\t Complainant\t v.\tOSHRC Docket No. 01-0422SAW PIPES USA, INC.\t Respondent\t APPEARANCES:Gary K. Stearman, Attorney; Michael P. Doyle, Counsel for AppellateLitigation; Joseph M. Woodward, Associate Solicitor for OccupationalSafety and Health; Gregory F. Jacob, Deputy Solicitor of Labor; HowardM. Radzely, Solicitor of Labor; U.S. Department of Labor, Washington, DC For the Complainant Thomas H. Wilson, Esq. and Sean M. Becker, Esq.; Vinson &Elkins, LLP., Houston, Texas For the Respondent REMAND ORDERBefore: THOMPSON, Chairman; ROGERS, Commissioner.BY THE COMMISSION: This case is before the Commission on remand from the UnitedStates Court of Appeals for the Fifth Circuit. \/Chao v. OccupationalSafety & Health Review Comm?n\/, 480 F.3d 320 (5th Cir. 2007). The courtreviewed the decision of Administrative Law Judge James H. Barkley,which became a final order of the Occupational Safety and Health ReviewCommission when the two then-sitting commissioners reached an impasseregarding the case?s disposition and, therefore, agreed to vacate theCommission?s direction for review. \/Saw Pipes USA Inc.\/, 21 BNA OSHC1306 (No. 01-0422, 2005). On appeal, the court vacated the judge?spenalty assessment, finding that he erroneously grouped separate willfulviolations and assessed a single grouped penalty below the statutoryrange mandated by section 17(a) of the Occupational Safety and HealthAct of 1970, 29 U.S.C. ? 666(a).By mandate dated May 9, 2007, the court ordered the judge?s decisionvacated and remanded ?for further proceedings in accordance with theopinion of th[e] court.? Accordingly, we hereby remand this case to thejudge for further proceedings consistent with the court?s opinion. SOORDERED. \/s\/ HoraceA. Thompson III Chairman \/s\/ ThomasinaV. Rogers Commissioner Dated: August 16, 2007 ———————————————————————— SECRETARY OF LABOR\t Complainant,\t v.\tOSHRC Docket No. 01-0422SAW PIPES USA, INC., and it?s successors,\t Respondent\t DECISIONBefore: RAILTON, Chairman; and ROGERS, Commissioner.The Occupational Safety and Health Administration(?OSHA?) commenced aninspection of Saw Pipes USA, Inc.?s (?Saw Pipes?) facility in Baytown,Texas on July 27, 2000, and subsequently cited Saw Pipes for numerousalleged willful and serious violations of various standards under theOccupational Safety and Health Act of 1970, 29 U.S.C. ?? 651-687 (?OSHAct? or ?Act?). The parties resolved, by settlement agreement and jointstipulation, all of the citations except certain items pertaining to SawPipes? alleged failure to properly record occupational illnesses andinjuries in violation of 29 C.F.R. ? 1904.2(a).^Footnote With the exceptionof one grouped citation, the Secretary cited the recordkeepingviolations as willful on a per-instance basis, and proposed a penalty of$8,000 for each of the violations.^Footnote Administrative LawJudge James H. Barkley affirmed fifty-nine separate recordkeepingviolations as willful, but grouped them for penalty purposes andassessed a single penalty of $70,000. On review, Saw Pipes contests only the characterization ofthe violations as willful, and argues for lower penalties. The Secretarychallenges the judge?s penalty grouping. The two Commission memberswould affirm the judge?s characterization of the violations as willful,but are divided as to the appropriate penalty assessment.Official action of the Commission requires the affirmative vote of twomembers on all dispositive issues. OSH Act, ? 12(f), 29 U.S.C. ? 661(e).In view of the absence of such agreement here and to resolve thisimpasse, the Commission members agree to vacate the direction forreview, thereby allowing the judge?s Decision and Order to become thefinal appealable order of the Commission with the precedential value ofan unreviewed judge?s decision.^Footnote \/See e.g.\/, \/TheTimken Co.\/, 20 BNA OSHC 2034 (No. 97-1457, 2004), and cases therecited. \/See also\/ sections 10(c), 11(a) and (b), and 12(j) of the Act,29 U.S.C. ?? 659(c), 660(a) and (b), and 661(i). Accordingly, thedirection for review is hereby vacated. The separate views of the twoCommission members follow. SO ORDERED. \/s\/ W.Scott Railton Chairman \/s\/ ThomasinaV. Rogers Commissioner Dated: September 28, 2005 I. The characterization of Saw Pipes? recordkeeping violationsSaw Pipes manufactures steel pipe at a former USX steel facility that itshares with Jindal United Steel Corp. (?Jindal?). The two relatedcompanies share some common ownership and some managerialpersonnel.^Footnote On review, Saw Pipes does not dispute the judge?s finding that it failedto properly record 63.7% of the recordable injuries and illnesses on itsOSHA 200 logs for the cited period during 1998, 1999, and 2000. Havingthoroughly reviewed the record in this case, Chairman Railton andCommissioner Rogers agree that the record supports the judge?sconclusion that Saw Pipes? recordkeeping errors were willful.As the Commission stated in \/Kaspar Wire Works, Inc.\/, ?[t]he hallmarkof a willful violation is the employer?s state of mind at the time ofthe violation ? an ?intentional, knowing, or voluntary disregard for therequirements of the Act or . . . plain indifference to employeesafety.?? 18 BNA OSHC 2178, 2181 (No. 90-2775, 2000) (citation omitted),\/aff?d,\/ 268 F.3d 1123 (D.C. Cir. 2001). ?[T]he Secretary must show thatthe employer acted voluntarily, with either intentional disregard of orplain indifference to OSHA requirements.? \/Georgia Elec. Co. v.Marshall\/, 595 F.2d 309, 317-319 (5th Cir. 1979). \/Accord AJP Constr.Inc. v. Secretary\/, 357 F.3d 70, 74 (D.C. Cir. 2004).Here, during the period covered by the citations, Robert Murphey, SawPipes? safety manager and certified industrial safety technician,maintained Saw Pipes? OSHA 200 logs. Through his education and previouswork experience, Murphey was familiar with OSHA standards andrecordkeeping regulations, as well as the contents of the U.S.Department of Labor, Bureau of Labor Statistics publication entitled\/Recordkeeping Guidelines for Occupational Injuries and Illnesses\/.\/\/Theevidence shows that Murphey worked ten-hour days, seven days a week, andthat he responded to and investigated all accidents and injuries thatoccurred during his shift. At other times, Saw Pipes? security personnelinvestigated such incidents, and notified Murphey of the eventsthereafter. Murphey also gathered illness and injury information fromthe ?incident reports? generated by Saw Pipes? supervisory personnel,treating physician accident reports and return-to-work restrictions, andcopies of the on-site clinic log.Murphey claims that he made every effort to follow up on accidents andincidents in order to keep the OSHA 200 log up to date, and that henever intentionally failed to record an injury that he knew wasrecordable. He blames his failure to properly record on inadequateinformation from supervisors and clinic staff. Although the record showsthat some incident reports were delayed, we agree with the judge thatMurphey?s first-hand knowledge of most incidents, combined with hisaccess to redundant sources of employee illness and injury information,belies his claim that inadequate information precluded him from properlymaintaining Saw Pipes? OSHA 200 logs.\/See Kaspar Wire Works, Inc. v.Secretary\/, 268 F.3d 1123, 1128-29 (D.C. Cir. 2001) (finding thatfactual evidence belied Kaspar?s claim that its actions were merelynegligent or careless).Murphey reported directly to Gary Jones, Saw Pipes? human resources andlabor relations director. Jones was the architect of Jindal?srecordkeeping program, through which he knowingly enforced erroneousguidelines that resulted in a large number of recording errors.^Footnote Jones hadinstructed Jindal?s recordkeeper to exclude from the OSHA 200 thoseinjuries not reported to workers? compensation, and the injuries andillnesses of temporary laborers who worked at the plant.Although Murphey testified that Jones never told him what to record onSaw Pipes? OSHA 200 logs, Jones acknowledged having ?ultimateresponsibility? for the OSHA 200s. Jones also received and reviewed,along with Murphey, the supervisors? illness and injury reports, andmedical bills for employees referred to the off-site clinic. As thejudge noted, Jones and his staff ?inherited a pre-existing reportingsystem? to which procedures were added that ?should have increasedreporting accuracy.? Nonetheless, the undisputed recordkeeping data bearout the judge?s observation that ?[d]espite the increase in the numberand expertise of safety personnel, . . . the timeliness and accuracy inrecording injuries plummeted after Jones took over the management ofSaw?s safety department? and ?did not improve when Robert Murphey tookover responsibility for the logs in May 1998.?There is also evidence that Jones directly intervened to control themedical information upon which recordability would depend. The medicalsupervisor of Saw Pipes? on-site clinic provided unrebutted testimonythat Jones attempted to persuade him to refrain from ordering restrictedwork for injured employees. Speaking with the doctor several times eachweek, Jones criticized work restriction orders, and asked in manyparticular instances that patient records contain ?no restrictions?notations despite Jones? knowledge that the patient could not performjob-related duties.As a management official who actively oversaw and participated in SawPipes? OSHA 200 compliance, Jones is accountable for the vast errorscontained in the company logs for the cited years. The evidence showsthat he and Murphey fully understood the recordkeeping requirements, hadactual knowledge of the employee illness and injury incidents thatshould have been recorded, and knowingly failed to comply with theapplicable regulations. \/See AJP Constr. Inc. v. Secretary\/, 357 F.3d at74 (affirming willful violation where employer knew of standards?requirements and had notice of deficiencies in compliance). Moreover, asthe judge noted, Saw Pipes ?crossed the line? when it ?intrud[ed] intothe doctor\/patient relationship? by attempting to influence doctors?orders for work restrictions. Accordingly, we agree with the judge thatthe cited recordkeeping violations were willful.^FootnoteII. PenaltiesThe judge affirmed fifty-nine separate violations for Saw Pipes?fifty-nine recordkeeping errors, which the Secretary cited on aper-instance basis and which the parties do not contest on review. Withrespect to the penalties, however, the judge rejected the Secretary?sproposal of $8,000 for each willful violation and, instead, assessed asingle grouped penalty of $70,000.Chairman Railton?s ViewsFor the reasons more fully articulated in \/Jindal\/, Chairman Railtonbelieves that the judge properly assessed a single $70,000 penalty forSaw Pipes? willful recordkeeping violations. In particular, ChairmanRailton notes that in assessing a single combined penalty, the judgeproperly took into account the Secretary?s own theory of the case ? thatSaw Pipes engaged in a single pattern and practice of willfulnon-reporting. As the judge stated ?[t]he evidentiary path chosen byComplainant was considerably less onerous than showing willfulness ineach and every instance.?Nor did the Secretary establish that these violations were willful \/and\/egregious. The record is devoid of evidence properly showing therequisite high gravity or significant bad faith to merit per-instancepenalties under the egregious\/willful penalty policy. The judge analyzedthe evidence on this issue.^Footnote Chairman Railtonwould also find that the gravity of Saw Pipes? recordkeeping violationswas low. As the judge noted, the unreported injuries were relativelyminor, and a review of Saw Pipes? safety violations reveals no intent tocover up serious safety hazards.Although ?intentional disregard? of safety and health responsibilitiesis another of the willful\/egregious factors that may support enhancedpenalties, as Chairman Railton explained in \/Jindal,\/ this factor\/\/?isthoroughly redundant? here as it comprises the sole basis of the willfulcharacterization. In the absence of any other indicia of bad faith,application of the violation-by-violation penalty policy is not merited.Accordingly, Chairman Railton would affirm the judge?s penaltyassessment of a single grouped penalty of $70,000 for Saw Pipes?fifty-nine recordkeeping violations.Commissioner Rogers? ViewsFor the reasons more fully articulated in \/Jindal\/, Commissioner Rogersbelieves that the judge exceeded his statutory authority by assessing asingle $70,000 penalty for fifty-nine separate willful violations. Inher view, the amended Act plainly requires that the Commission assess apenalty of at least $5,000 for each of the fifty-nine affirmed willfulviolations.In particular, Commissioner Rogers takes issue with her colleague?sassertion that because the evidence here shows a pattern and practice ofwillful non-reporting, individual willful penalties are not warranted.The OSH Act does not distinguish among theories of willfulness as apredicate for imposing the minimum willful penalty. It merely statesthat a penalty ?not less than $5,000? must be assessed ?for each willfulviolation.? Having affirmed each of Saw Pipes? fifty-nine recordkeepingviolations as willful, the Commission must apply the statutory penaltyscheme as written.Commissioner Rogers also emphasizes that Saw Pipes? managers personallycompleted the OSHA 200 forms, and the evidence shows that their willfulnoncompliance with the cited regulations was, indeed, egregious. Humanresources director Gary Jones, in conjunction with safety manager RobertMurphey, were directly responsible for the sorry state of Saw Pipes?illness and injury reporting. As we noted above, they ?fully understoodthe recordkeeping requirements, had actual knowledge of the employeeillness and injury incidents that should have been recorded, andknowingly failed to comply with the applicable regulations.? Theevidence in this case shows such a disregard for compliance with therecordkeeping regulations that, even absent proof of employer knowledgeof each recordkeeping error, ?it could be inferred that if [Saw Pipes]had known of the [recordable events], it would not have cared that itwas in violation of the Act.? \/A.E. Staley Mfg. Co.\/, 19 BNA OSHC 1199,1211, 1222 (No. 91-0637, 2000) (consolidated) (finding that evidenceestablished ?pattern and course of conduct? demonstrating plainindifference), \/aff?d,\/ 295 F.3d 1341, 1350-53 (D.C. Cir. 2002) (notingthat knowledge regarding acts of omission can be inferred from evidenceof plain indifference). In these circumstances, as in \/Jindal\/,Commissioner Rogers would find that Saw Pipes demonstrated ?a level ofbad faith that clearly justifies the Secretary?s lawful exercise of herdiscretion to cite these violations separately and the penalties thatstatutorily flow from it.? Accordingly, a $5,000 penalty for each of thefifty-nine willful violations would be reasonable and appropriate. ———————————————————————— SECRETARY OF LABOR,\t Complainant,\t v.\tOSHRC DOCKET NO. 01-0422SAW PIPES USA, INC., and its successors,\t Respondent.\t APPEARANCES: For the Complainant:Raquel Tamez, Esq., Madeleine Le, Esq., Office of the Solicitor, U.S.Department of Labor, Dallas,Texas For the Respondent: Thomas H. Wilson, Esq., Julianne Merten, Esq.,Michael J. Muskat, Esq., Vinson & Elkins, LLP,Houston, Texas Before: Administrative Law Judge: James H. Barkley DECISION AND ORDER This proceeding arises under the Occupational Safety andHealth Act of 1970 (29 U.S.C. Section 651 \/et seq.\/; hereafter calledthe ?Act?). Respondent, Saw Pipes USA, Inc., and its successors (Saw),at all times relevant to this action maintained a place of business inBaytown, Texas, where it was engaged in manufacturing seamless weldedline pipe (Tr. 272, 286). Respondent admits it is an employer engaged ina business affecting commerce and is subject to the requirements of the Act. On July 27, 2000 the Occupational Safety and HealthAdministration (OSHA) began an inspection of Saw?s Baytown, Texas worksite. As a result of that inspection, Saw was issued a Willful citationalleging 67 violations of ?1904.2(a). The citation alleges 66 instancesin which Saw failed to list recordable injuries or illnesses on its OSHA200 form. Item 67 alleges that 16 injuries or illnesses were incorrectlyrecorded. Penalties of $8,000.00 per instance were proposed. By filing atimely notice of contest Saw brought this proceeding before theOccupational Safety and Health Review Commission (Commission). On January 22-23, 2002, a hearing was held in Houston,Texas. Pursuant to a joint statement of the parties filed at thehearing, the Secretary withdrew items 27 and 67 (subpart 16), and Sawwithdrew its contest to the recordability of all but 18 of the 66failures to record and all but 5 of the 16 items allegedly reportedincorrectly. Saw continued to contest the classification of the citationas willful, and the proposed penalties. During the hearing, theSecretary also withdrew item 17 of Willful citation 1 (Tr. 157), and Sawwithdrew its contest as to the recordability of items 29, 34, 38 and 49and 63 (Tr. 146-148). Following the hearing, Complainant withdrew threeof those items, numbers 29, 34, and 63 (Complainant?s post-hearingbrief, p. 37, 38, 47). Finally, in its post hearing brief, Saw withdrewits notice of contest to items 11 and 20 based on the testimonypresented at the hearing(Respondent?s post-hearing brief, p. 2). Theparties have submitted briefs on the issues remaining in dispute andthis matter is ready for disposition.Facts Robert Murphey, a certified industrial safety technician,hasbeen Saw?s safety manager since May 1998 (Tr. 64, 216; Exh. C-245).Murpheytestified that, in addition to filling out the OSHA 200 logs, heis responsible for responding to and investigating all accidents andinjuries that occur at the Saw facility (Tr. 65, 80-81). Plant managersand supervisors are instructed to inform him of injury accidents (Tr.66-68). If Murphey is not in the plant, security is to be notified (Tr.67). Security is instructed to notify Murphey, via pager or by way of apatrolman?s report, of all accidents and injuries which occur outside ofhis shift (Tr. 69-71). Murphey testified that Saw?s accident policyrequires that all injuries be reported (Tr. 71, 113). Murphey testifiedthat the reports are not always submitted in a timely manner, and thathe has complained about the problemto his supervisor, Mr. Jones, to theplant manager, Mr. Turnipseed, and to the chief executive officer, Mr.Bhargava (Tr. 115). Carroll Caudill, Saw?s maintenance manager, and Kurt Brodd,Saw?s plant manager, both testified that when a Saw employee is injured,he notifies his supervisor. If required, medical treatment isimmediately sought for the employee (Tr. 46, 160). Brodd testified thatRobert Murphey is then contacted (Tr. 160). Where a reportable injuryoccurs, the supervisor fills out an accident or injury report which issubmitted either to Robert Murphy, or to Murphey?s supervisor, GaryJones (Tr. 45-48, 58, 161). Brodd testified that it is Saw?s policy tofill out an accident report in all cases (Tr. 162). Caudill, however,testified that reports are not always filled out for minor injuries (Tr.58). Both Brodd and Caudill admitted that there are times when they haveto be reminded to get a report to Murphey (Tr. 48, 56-57, 163, 168).However, Brodd stated that he was not aware of any accidents that werenever reported to Mr. Murphey (Tr. 164). Caudill testified, if an employee?s injury is serious enoughto merit a trip to the hospital, the employee must obtain a doctor?srelease before returning to work (Tr. 53). According to Caudill, therelease is returned to the personnel department (Tr. 53). Caudill wasnot aware of any instances where an employee returned to work withoutgoing through personnel (Tr. 54).Dr. Jerry McShane, owner of the SanAugustine Industrial Clinic, where Saw employees have been treated sinceearly 1999, testified that accident reports, which include Return toWork (RTW) restrictions, are faxed to Saw in virtually every case (Tr.452-53, 468). Dr. Carl Davis, a physician associated with BayCoast,which provided patient care for Saw?s employers in 1998, testified thatit was the practice to fax a copy of any work restrictions to Saw (Tr.409-10).Murphey testified that because it is his job to coordinate anywork restrictions an employee might have as a result of his or herinjury, any paperwork documenting physician imposed work restrictionscomes to him (Tr. 75, 124). In addition to incident reports from supervisory personneland plant security, and RTW forms from treating physicians, Murpheyreceives copies of the logs from the on site clinic on a monthly basis(Tr. 75, Exh. C-248, C-249, C-250). If an employee visits the on-siteclinic as a result of his or her injury, the employee is required tosign in on the clinic log (Tr. 73).Murphey testified that he uses thenurse?s sign in logs and any incident reports to assure that the OSHA200 log is correct (Tr. 112). Finally, Murphey testified that he and Gary Jones reviewmedical bills for employees who are referred to the off-site clinic. Itis his job to verify any medical expenses billed before they are paid(Tr. 72, 121).Alleged Violations Knowledge. Initially, this judge notes that all of the citedviolations were discovered during a review of records obtained,considerably after the fact, in the course of the OSHA investigation.The records reviewed were in Saw?s control or were contained in medicalrecords controlled by Saw?s agents. Such documents were available forthe review of Saw?s safety management at any time (Tr. 407, 469). Thus Ifind that even if Saw?s safety managers lacked specific knowledge of anyof the contested injuries, they could, with the exercise of reasonablediligence, have known of any medical treatment provided or workrestriction imposed on any of the employees named in the citations.Forthis reason, Saw?s constructive knowledge of the individual violationswill not be further discussed. Willful citation 1, item 5 alleges that on March 2, 1998,Edward Giering sprained his left knee at Saw?s facility. Complainantalleges that the sprain resulted in work restrictions and should havebeen, but was not recorded (Joint Statement, p. 1, Exh. C-12). After spraining his knee Giering visited the Bay CoastMedical Center, where the knee was splinted in a brace supported withmetal rods, which he was to wear for seven days (Giering Depo., p. 25).Giering returned to work with instructions to restrict the use of hisleg, and to refrain from climbing, bending or stooping (Exh. C-12). In adeposition given on February 26, 2002, Giering, a tack welder, testifiedthat he was instructed at the clinic to remain seated, and to keep hisleg elevated (Giering Depo., p. 12). Giering stated that tried doing hisjob sitting the first day, but was unable to perform his regular dutiesin that position (Giering Depo., p. 12-13). Giering testified that hewas told that he ?needed to be up there,? and, believing his job was onthe line, he resumed his duties despite his prescribed work restrictions. The U.S. Department of Labor, Bureau of Labor Statisticspublication, \/Recordkeeping Guidelines for Occupational Injuries andIllnesses\/, the ?Blue Book? states that:\/Lost workday cases involving days of restricted work activity\/ arethose cases where, because of injury or illness, (1) The employee wasassigned to another job on a temporary basis, or (2) the employee workedat a permanent job less than full time, or (3) the employee worked athis or her permanently assigned job but could not perform all the dutiesnormally connected with it.Restricted work activity occurs when the employee, because of thejob-related injury or illness, is physically or mentally unable toperform \/all or any part\/ of his or her normal assignment during\/all orpart\/ of the normal workday or shift. The emphasis is on the employee?s\/inability\/ to perform normal job duties over a normal work shift. (Exh. C-278, p. 48). Saw argues that Giering was not \/unable\/ to perform his job,because, at least after his first day back, he was able to stand on hisbraced left leg throughout his shift. Giering admitted that, because hebelieved that he would lose his job if he wasn?t up on the line, hechose to ignore the physician?s recommended work restrictions after thefirst day. This judge believes it would set a poor precedent to holdthat the recordability of an injury may be based solely on an employee?sbehavior, where such employee acts under pressure from his employer toreturn to his normal duties against the advice of his physician. \/See,\/item 32, in which on February 2, 1999 the same employee reported toOccuCare Industrial Medicine Clinic, with ?persistent? left anklesprain, after ignoring the physician?s work restrictions and returningto full duty after a January 15, 1999 sprain, again fearing the loss ofhis job (Giering Depo. p. 24;Tr. Exh. C-96). Because Mr. Giering was unable to perform his normal jobduties without disregarding the advice of his physician, this injury wasrecordable. Footnote Item 5 is affirmed. Willful citation 1, item 21alleges that on September 24,1998, Craig Brodd suffered a contusion to his forearm at Saw?s facility.Complainant alleges that the contusion required medical treatment andshould have been, but was not recorded (Joint Statement, p. 1, Exh.C-57, C-58). Medical Records from the BayCoast Clinic indicate that Broddreported to the clinic in the early hours of September 25, where ice andTylenol #3 were prescribed (Exh. C-58). Brodd visited Saw?s on-sitecliniclater in that day, at which time Helen Stipe, the nurse on duty,examined him and made a note, Tylenol #3 ?PD Q4H PRN, under the heading?Medications? (Exh. C-57). Complainant introduced no evidence from whichthis judge might ascertain the meaning of this notation. The Blue Book states that the administration of a singledose of prescription medication on a first visit for a minor injury ordiscomfort is generally considered first aid treatment, and need not berecorded if the injury does not involve a loss of consciousness, orrestriction of work or motion (Exh. C-278, p. 43). In the absence of anyevidence that more than one dose of Tylenol #3 was prescribed, thisjudge cannot find that the cited injury was recordable. This item isvacated. Willful citation 1, item 23 alleges that on September 29,1998, Alberto Arredondo reported to the BayCoast Clinic complaining thata piece of metal had struck his right eye while he was working at Saw?sfacility. Complainant alleges that the resulting corneal abrasionrequired medical treatment and resulted in work restrictions whichshould have been, but were not recorded (Joint Statement, p. 2, Exh. C-63). BayCoast?s records indicate that Arredondo?s vision wasunaffected by the incident, however, Neosporin ophthalmic solution andan eyepatch were applied to Arredondo?s eye (Exh. C-63). The physicianon duty, Richard Trifiro, then released Arredondo for work withinstructions to refrain from driving any equipment (Exh. C-63).Arredondo returned for observation the following day, at which time Dr.Trifiro, who was unable to visualize a foreign body in Arredondo?s eye,referred him to an ophthalmologist. Complainant failed to introduce any evidence indicating thatMr. Arredondo was ever diagnosed with an injury requiring treatmentbeyond a single dose of Neosporin ointment, or that the eyepatchArredondo was required to wear interfered with the performance of hisduties. Because the evidence does not establish that Mr. Arredondosuffered a recordable injury, item 23 is vacated. Willful citation 1, item 31 alleges that on December 22,1998, Edward Giering suffered an injury to his groin while working atSaw?s facility. Complainant alleges that the groin injury resulted inwork restrictions and should have been, but was not recorded (JointStatement, p. 2, Exh. C-93). In his February 26, 2002 deposition,Giering testified thatGary Jones sent him to the on-site nurse, and subsequently had RaySnell, Robert Murphey?s assistant, take him to the San AugustineIndustrial Clinic (Giering Depo., p. 15-16). Giering returned to workwith instructions to refrain from repetitive lifting until January 5,1999 (Exh. C-93). Prior to his injury Giering was employed in thequality assurance and compliance department. Part of his job, whichoccupied approximately an hour and a half each day, was to move 20 to 25pound samples of cut steel piping used in expansion rate testing(Giering Depo., p. 14-18). After the injury, Giering could no longerlift the samples, and was strictly limited to performing testing (Tr.17-19). As noted above, where the employee can still work at his orher permanently assigned job but cannot perform all the duties normallyconnected with it, that injury involves restricted work activity . Inthis case, Mr. Giering, because of his job-related injury was physicallyunable to perform a part of his normal assignment during\/\/part of thenormal workday or shift. The injury was recordable, and this item isaffirmed. Willful citation 1, item 32 alleges that on January 15,1999, Edward Giering sprained his left ankle while working at Saw?sfacility. Complainant alleges that the ankle injury resulted in workrestrictions and should have been, but was not recorded (JointStatement, p. 2, Exh. C-95). At his February 26, 2002 deposition, Giering testified thathe was taken to the San Augustine Clinic on Gary Jones? instructions(Giering Depo., p. 21). Giering returned to work the same day withinstructions to avoid excessive bearing of weight on his left foot,squatting, and climbing (Exh. C-95). Giering testified that his jobrequired him ?[t]o climb up to the scope and to the ID and OD welders?(Giering Depo. p. 24). Giering testified that his supervisor, HankGosnell, implied that Giering would lose his job if he could not performthe duties associated with it; Giering stated that he ignored themedical restrictions (Giering Depo. p. 24). On February 2, 1999, Gieringvisited the OccuCare Industrial Medicine Clinic, where he was diagnosedwith ?persistent? left ankle sprain. Giering was provided with an anklebrace and instructed to avoid excessive weight bearing on his left footuntil further notice (Exh. C-96). The record establishes that Giering could not perform hisnormal work activities without disregarding the restrictions imposed byhis physician. He ignored those restrictions because he feared for hisjob, not because he felt the restrictions were unnecessary and, in fact,his injury persisted. For the reasons set forth in item 5, this judgefinds that item 32 was recordable. This item is affirmed. Willful citation 1, item 41 alleges that on March 23, 1999,Richard Lee strained his lower back while working at Saw?s facility.Complainant alleges that the injury resulted in work restrictions andshould have been, but was not recorded (Joint Statement, p. 2, Exh. C-120). At the hearing, Lee testified that Robert Murphy took him tothe doctor, where he was provided with samples of 850 mg. Motrin andpain killers. X-rays were taken and Lee was given instructions forphysical therapy (Tr. 251-52; Exh. C-120). Lee was allowed to return towork with restrictions; he was not to engage in excessive climbing,squatting or lifting of over 25 pounds (Tr. 252; Exh. C-120). After anApril 7, 1999 follow-up appointment, Lee received instructions to remainon light duty until April 12, 1999 (Exh. C-120). Lee testified that hisregular duties included helping out in other departments as needed. Leetestified that he helped the grinders at the expander on a daily basis(Tr. 255). Lee stated that, while helping out, he was required to squat,climb and lift over 25 pounds (Tr. 255). It was while he was helping outthat he hurt his back (Tr. 254). Lee stated that his actual position washydro tester\/ operator. That position does not require climbing,squatting, or lifting, and Lee was able to continue working as a hydrotester after his injury (Tr. 253-54). Mr. Lee worked regularly in other departments, helping outon a daily basis. Because he was regularly assigned to assist thegrinders at the expander, that duty was part of his normal job. Lee?sinability to continue assisting in the expander department until hisrelease from light duty on April 12, 1999 constitutes a recordable workrestriction. This item is affirmed. Willful citation 1, item 44 alleges that on April 8, 1999,Bobby Sindel suffered smoke inhalation while fighting a fire at Saw(Sindel Depo. p. 5-6; Exh. C-125, C-126). Complainant states that smokeinhalation is a recordable occupational illness which should have been,but was not recorded. Sindel reported to Saw?s in-house clinic on April 8,complaining of chest congestion and coughing. The nurse on duty reportedthat Sindel?s throat was raw, but that his chest sounds were clear (Exh.C-125). Sindel was transported to OccuCare Clinic, where he wasexamined, and released for work without further treatment (Exh. C-125). The Blue Book defines ?occupational illness? as:Any abnormal condition or disorder. . . caused by exposure toenvironmental factors associated with employment. It includes acute andchronic illnesses or diseases which may be caused by inhalation,absorption, ingestion or direct contact. Illnesses are to be listed in specific columns, by category. Therelevant category in this case is: 7c. \/Respiratory conditions due to toxic agents. \/Examples: Pneumonitis,pharyngitis, rhinitis or acute congestion due to chemicals, dusts, gasesor fumes;. . .. The record does not establish that Sindel contracted anacute or chronic abnormal condition or disorder from the single exposureto smoke. Neither the in-house nurse, nor the physician at OccuCarereported finding any chest congestion (pneumonitis), or swelling of thethroat (pharyngitis) or nasal passages (rhinitis). Because the Secretaryfailed to prove that Mr. Sindel was diagnosed with a recordableoccupational illness, this item is vacated. Willful citation 1, item 47 alleges that onJune 7, 1999, Sawemployee Alejandro Dominguez suffered a corneal abrasion when debrisflew into his left eye while he was grinding (Tr. 151; Exh. C-131,C-132). Complainant maintains that Dominguez received medical treatment,making the injury recordable. Dominquez testified that after his injury, the on-site nurseflushed his eye (Tr. 151). The nurse noted that she provided Dominguezwith Cortisporin ophthalmic solution and an eyepatch (Exh. C-131).Robert Murphey then drove Dominguez to OccuCare (Tr. 152). The attendingphysician?s notes indicate that he anesthetized the eye, removed aforeign body, and dosed Dominguez? eye with Blephamide, listed in thePhysician?s Desk Reference as a prescription medication. Dominguez wasprovided with an eyepatch and released with a monocular visionrestriction (Tr. 132; Exh. C-132). Dominguez testified that when thediscomfort did not subside the following day, Mr. Murphey took him backto the clinic, at which time the doctor checked his eye again, and againdosed it with Blephamide, before sending him to an ophthalmologist (Tr.153; Exh. C-132). The Blue Book states that the removal of foreign bodiesembedded in the eye is almost always a recordable injury (Exh. C-278, p.43). In this case, it is more likely than not that the debris wasembedded in Dominguez?s eye, as the on-site nurse was unable to removedit with flushing. Moreover Dominguez was treated on multiple visits withthe prescription medication, Blephamide. Injuries requiring multipledoses of prescription medications are recordable (Exh. C-278, p. 43).Item 47 is affirmed. Willful Citation 1, item 48 alleges that on June 25, 1999,James Jones suffered a sprained left ankle (Exh. C-133, 134). Jones?injury required a brace, which resulted in work restrictions includinginstructions to avoid excessive standing, weight bearing on the leftfoot, and climbing (Exh. C-134). This judge takes note that in a February 6, 1998 ComplianceLetter, the Secretary interpreted medical treatment to include the useof casts, splints and\/or orthopedic devices designed to immobilize abody part. The Secretary?s interpretation is reasonable, and this itemis affirmed. Willful Citation 1, item 67(5) alleges that on June 25, 1998Marco Contresas strained his back while lifting ground wires (Exh.C-199, C-200). Contresas was treated at Bay Coast Clinic and wasreleased for work with restrictions consisting of no climbing, bending,stooping, or lifting of any weight in excess of 10 pounds for five toseven days (Exh. C-201). The injury report that Robert Murphey filed with Texas?worker?s compensation states that Contresas, a welder, was performinghis regular job when injured (Exh. C-198). This judge finds it morelikely than not that Contresas? restrictions would prevent him fromstooping or bending to lift ground wires, a part of his normal duties,and the very activity which caused his injury. Item\/\/67(5) is affirmed. Willful Citation 1, item 67(8) alleges that on March 11,1999 James Hedden, a welder, strained his right wrist and hand whileusing a wrench. Hedden was treated, his wrist splinted and he wasallowed to return to work with restrictions (Exh. C-213, C-214, C-215,C-216). Hedden was instructed to avoid excessive use of his right handand repetitive lifting of 20 pounds or more (Exh. C-216). Hedden did nottestify, and in the absence of any evidence as to his normal duties,this judge cannot find that he was unable to perform his job whileobserving the listed restrictions. Item 67(8) is vacated. Willful Citation 1, item 67(11) alleges that on March 9,2000, Gary Cooper, a millwright, cut his right thumb (Exh. C-226). Afterreceiving stitches and a tetanus shot at the clinic, Cooper returned towork with restrictions including instructions to avoid excessivepressure and\/or use of his right hand, and to keep the wound dry andclean (Tr. 394-95; Exh. C-226). At the hearing, Cooper testified thathis job requires that he use power and hand tools, and that he isright-handed (Tr. 395). Cooper testified that he could perform most ofhis job duties using his left hand; however, he could not operate atorch, which required him to use his thumb (Tr. 397). Using a torch was part of Cooper?s job, and the restrictionwhich prevented him from full use of his right hand was recordable. Thisitem is affirmed. Willful Citation 1, item 67(13) alleges that on April 18,2000, Michael Ellison, a welder, suffered a laceration to his right palm(Exh. C- 230). After seeing the on-site nurse, Ellison went to the SanAugustine clinic, where he was given stitches, and allowed to return towork with restrictions (Exh. C-231). Ellison was instructed to avoidexcessive use of his right hand and to keep the wound dry and clean(Exh. C-232). On April 19, and again on April 28, Ellison returned toSan Augustine at which time the attending physician noted ?no welding?on his Return to Work (RTW) form (Exh. C-232). Ellison was returned tofull duty on May 2, 2000. This judge finds it more likely than not that Ellison, awelder, would be unable to perform his normal duties with a medicalrestriction barring him from welding. Item 67(13) is affirmed. Willful Citation 1, item 67(15) alleges that on Don Schwartzsuffered a foreign body to his right eye. After the foreign body wasremoved with an algar brush at the San Augustine clinic, Schwartzreturned to work with instructions to refrain from excessive monocularvision (Exh. C-235). Schwartz did not testify at the hearing, and in theabsence of any evidence as to his normal duties, this judge cannot findthat he was unable to perform his job with restricted vision. Item67(15) is vacated.Willfulness The Secretary maintains that Saw engaged in a deliberatepattern or under-reporting work place injuries in order to avoid beingtargeted for OSHA inspection. Complainant argues that Saw?s practice ofunder-reporting is demonstrated by a drop in its lost workday injury andillness (LWDII)rate from 9.6 in 1996 to reported rates of 2.7, 3.1 and4.2 in the following years, 1997, 1998, and 1999. Complainant points outthat Saw?s witnesses can recall no significant changes that would haveimpacted safety at the Saw plant during 1997 and the following years,and cannot account for the dramatic drop in the LWDII during that time.Complainant?s witnesses, on the other hand, testified that they believedthe drop in the rate was the result of deliberate under-reporting ofminor injuries pursuant to policy developed by Gary Jones. Complainantargues that its theory explains Jones? deliberate decision not to recordinjuries suffered by temporary laborers, and his decision to changeSaw?s Standard Industrial Classification (SIC) code in 1998. Saw maintains that the drop in the LWDII, the failure torecord minor reportable injuries and injuries to temporary workers, andthe change in Saw?s SIC code were all attributable to unrelatedmisinterpretations of OSHA requirements. Saw argues that any and allmisinterpretations of OSHA requirements were made in good faith. At notime did Saw intend to circumvent an OSHA inspection. \/Facts\/ Charles Kutan is currently the production planning managerfor Saw (Tr. 257). Kutan was originally hired in June 1995 to serve asSaw?s human resources and safety director (Tr. 257-58). Kutan testifiedthat, in that position, it was his responsibility, in addition todealing with personnel issues, to investigate accidents and to maintainthe OSHA 200 logs (Tr. 261). Kutan stated that he maintained the logsuntil mid-1997 (Tr. 261). According to Kutan, his experience prior to1995 was in shipping (Tr. 267). In order to fulfill his new safetyduties at Saw, he had to familiarize himself with OSHA regulationsregarding recordkeeping by conferring with Saw?s Workman?s Compensationcarrier, and by reading OSHA publications, including the 200 form andthe Blue Book (Tr. 267-68; Exh. C-278). Kutan testified that it was hispractice to list recordable injuries on the OSHA 200 as they occurred(Tr. 266). Robert Whitmore, chief of OSHA?s division of recordkeepingrequirements, testified that in 1996 Charles Kutan submitted an LWDIIrate of 9.6 on the 1996 OSHA 196 Summary form, based on informationcontained in 1996 OSHA 200, the only complete year for which Kutanmaintained the 200 form (Tr. 305). Prior to joining Saw, Gary Jones, who is an attorney, wasemployed for 19 years as the employee relations representative at Brown& Root. As part of his job duties at Brown & Root, Jones dealt with anumber of governmental agencies, including OSHA. He attended safetyseminars, met with OSHA investigators, and responded to OSHA complaints(Tr. 182). During his tenure with Brown & Root, Jones occasionallyreviewed the OSHA 200 logs (Tr. 200). He was familiar with the Blue Book(Tr. 200-01). Jones took over as director of human relations at Saw inJuly 1997 (Tr. 181). Jones also acted as Saw?s safety director, and hisduties included ensuring compliance with OSHA reporting requirements(Tr. 206-07). In August 1997, Jones hired Ronnie Johnson to act assafety manager for Saw (Tr. 208). Jones testified that he chose Johnsonbecause he was a medic, and was familiar with OSHA regulations (Tr.208). Jones testified that he considered the OSHA 200 log to beJohnson?s responsibility; however, at some point Jones became aware thatJohnson was not keeping the log. Jones testified that, together, he andJohnson brought the log up to date (Tr. 209, 213). Jones testified thathe never again consulted with Johnson about the recordability of anyparticular injuries (Tr. 215). According to Jones, Johnson completed andcertified the 1997 OSHA 200 logs (Tr. 214; Exh. R-1). Jones, however,completed and certified the OSHA Form 196 Summary for 1997 (Tr. 207;Exh. C-276, p. 3). The LWDII rate Jones submitted for 1997 was 2.7 (Tr.305). Robert Murphey, who replaced Johnson as safety manager in1998, testified that he was familiar with OSHA regulations andstandards, including the Blue Book (Tr. 65). As Saw?s safety manager, hewas responsible for responding to accidents and injuries and formaintaining the OSHA 200 logs (Tr. 65, 116). Though Murphey reporteddirectly to Jones, he testified that Jones did not instruct him in thecorrect means of completing the logs (Tr. 64, 111, 216). As noted above,Murphey used the nurse?s sign-in logs and accident and incident reportsto assure the accuracy of the OSHA 200 log (Tr. 112). Murphey statedthat he made every attempt to follow up on accidents and incidents atthe Saw facility in order to ascertain whether all recordable injurieshad been reported (Tr. 139-40). Murphey maintained that if he failed torecord an injury, it was either because the nurse failed to turn overforms specifying medical treatment or work restrictions, or becausesupervisors failed to turn in accident reports (Tr. 124-126). Murpheycompleted and certified the OSHA 200 logs for 1998 and 1999, and keptthe logs for the first part of 2000 (Tr. 98, 106-107, 111). Mr. Murpheywas aware that LWDII rates were used to target OSHA inspections, thoughhe did not know exactly what rates would trigger an inspection (Tr.131).The LWDII rates for 1998 and 1999 were 3.1 and 4.2, respectively(Tr. 305). During the first half of 2000, Saw?s LWDII rate was 0 (Tr. 305). Craig Wetherington was hired in May 1998 to act as thesafety director for Jindal Steel, a plate steel manufacturing facilitylocated on the same 59 acre tract which houses Saw; both were part of anolder USX steel mill facility (\/See, Secretary v. Jindal United SteelCorp. (Jindal),\/ Docket No. 00-2231 [petition for discretionary reviewpending before the Commission] Tr. 583). Footnote Jindal produces theplate steel which Saw uses for producing pipe. The two companies sharesome common ownership; Saw Pipes holds stock in Jindal (\/Jindal, \/Exh.A, pp. 141, 595).Wetherington was told when he was hired that Jones wasthe administrator of the safety program for both Jindal and Saw pipes(\/Jindal, \/Exh. A, pp. 66, 126), and that he had dual responsibility toboth Jindal?s production manager and to Gary Jones (\/Jindal, \/Exh. A,pp. 49, 66-67, 76, 98-99, 113). Wetherington stated that Jonesinstructed him not to record any injuries which were not also reportedto Texas Workers? Compensation(\/Jindal, \/Exh. A, pp. 65, 68,77-80).Jones also specifically told Wetherington that injuries sufferedby temporary laborers would be reported by the agency through which thelaborer was employed, and that Wetherington was not to report thoseinjuries (\/Jindal, \/Exh. A, p. 74). Wetherington testified that when hetold Jones this did not conform to OSHA reporting guidelines; Jones toldhim he interpreted the guidelines differently (\/Jindal,\/ Exh. A, pp.74,93). As a result, Wetherington did not report any injuries to temporarylaborers; he did not do any follow up on temporary employees who hadbeen injured (\/Jindal, \/Exh. A, p. 81). Wetherington testified that hefilled out the OSHA 200 forms in accordance with instructions providedhim by Gary Jones (\/Jindal, \/Exh. A, p. 68), but told Jones he did notbelieve the 200 log was being filled out correctly. Jones toldWetherington that he interpreted OSHA regulations differently and thatif Wetherington didn?t want to record injuries according to hisinterpretation, Wetherington could find another job (\/Jindal, \/Exh. A,pp. 68-69, 555).\/\/ Wetherington believed that Jones? intent was tomisrepresent the number of accidents at the plant in order to evadeinspections by OSHA by reporting a low LWDII (\/Jindal, \/Exh. A, pp.109-10, 115-116). Ronnie Johnson testified that Gary Jones maintained the OSHA200 logs while he was employed at Saw (\/Jindal\/, Exh. E, p. 401).Johnson stated that he was aware that otherwise recordable injuries werenot being recorded on the OSHA 200 logs in an attempt to keep thenumbers down (\/Jindal\/, Exh. E, pp. 396, 402-03). According to Johnson,Jones would not record an injury if Saw paid the injured employee?smedical costs in house rather than submitting a Workman?s Compensationclaim (\/Jindal\/, Exh. E, pp. 395-96). In addition, Johnson testified, heknew that Jones was not recording otherwise recordable injuries if thoseinjuries were suffered by temporary employees (\/Jindal, \/Exh. E, p. 397). Carl Davis, the Director of Occupational Medicine for theJacinto Medical Group in Baytown Texas (Tr. 399), testified that inOctober 1998 he became aware that the Jacinto Medical Group supervisedthe Licenced Vocational Nurse (LVN) from BayCoast Medical Center who ranSaw?s on-site medical facility (Tr. 400-01). On or about October 28,1998, Davis visited the Saw facility, where he met with the LVN, HelenStipe, Gary Jones and Robert Murphey (Tr. 402). During that visit, Davistestified, Jones took him aside and informed him that Saw ?did not haverecordable injuries? (Tr. 403). Davis testified that he subsequentlyspoke with Jones two or three times a week (Tr. 406). During thoseconversations, Jones often criticized Davis? decisions to restrictemployees? work activities (Tr. 405). Davis testified that Jonesspecifically asked him to not to place employees under work restrictions(Tr. 445-46). Specifically, Davis stated:Well, in the course of reporting patient status to Mr. Jones and inconversations we had when he would call me, Mr. Jones was, many times,critical of the fact that restrictions had been placed on the patients?work activity. Some of them were less than friendly. They were generallycritical if any restriction had been placed. He, on more than oneoccasion, asked me to write ?No restrictions.? (Tr. 405). In December 1998, Saw terminated its contract with BayCoast (Tr.405).Footnote Robert Whitmore testified that OSHA?s programmed inspectionsare based on employer LWDII rates (Tr. 364). The OSHA OccupationalInjury and Illness Data Collection form, which is mailed to employers,including Saw, informs those employers that the injury an illness datacollected from them ?will be used to focus OSHA activities? includinginspections (Tr. 365; Exh. C-274, p. 2, C-275, p. 2). The formula OSHAuses for targeting inspections changes frequently. For instance, in1998, OSHA targeted employers for inspection if the employer?s 1996LWDII rate exceeded the average for its Standard IndustrialClassification (SIC)code (Tr. 341). In 1999 OSHA used data fromemployers? 1997 OSHA form 196 injury summaries (Tr. 336). Employers withLWDIIs exceeding 16 were placed on OSHA?s primary targeting list, whileemployees with LWDIIs between 10 and 16 were placed on the secondarylist (Tr. 337,-339). In 2000, inspections were planned for employersreporting an LWDII of over 14 on their 1998 injury summaries (Tr.330-31, 339). Employers reporting an LWDII between 8 and 14 were placedon a secondary list, and might or might not be inspected, depending onOSHA?s workload (Tr. 331). Whitmore testified that in any given year,employers would not know what injury rate would trigger an inspectiontwo years down the line (Tr. 340-41). However, employers with extremelylow LWDII rates were ?not even on [OSHA?s] radar screen? (Tr. 364).According to Whitmore,OSHA has not targeted an employer with an LWDII ofless than 4.6 since its inception,(Tr. 433-44). SIC Codes. During 1995 and 1996, while Charles Kutan keptthe OSHA logs, Saw listed its SIC code as 3317 Steel Pipe and Tubes (Tr.269-70, 308; Exh. C-276, C-300). The description of the 3317 industrialcode is: ?Establishments primarily engaged in the production of weldedor seamless steel pipe and tubes and heavy riveted steel pipe frompurchased materials.? Examples of the manufactured product include ?pipeseamless steel-mfpm.? (Exh. C-300). Charles Kutan testified that Sawwas, and is, in the business of producing welded line pipe (Tr. 272).Kutan could not recall specifically telling Gary Jones Saw?s SIC code,but stated that he would have shown him the paperwork, including theOSHA summaries on which the 3317 SIC code was set forth (Tr. 271, 293).Mr. Whitmore testified that during his formal interview with DilipBhargava, Saw?s then president and CEO (Tr. 172), Bhargava told him thathe believed that Saw fell under the 3317 industrial code (Tr. 391). Whitmore testified that, in 1998, OSHA attempted to conducta programmed inspection of Saw?s facility based on Saw?s 1996 LWDIIrate, which at 9.55 exceeded the industry average of 5.6 for SIC 3317(Tr. 308-09, 317-318). Gary Jones turned the OSHA inspectors away,claiming that Saw?s SIC code was not 3317, but 3443 (Tr. 202-204, 232,315, 318). Footnote The descriptionfor SIC code 3443 Fabricated Plate Work (Boiler Shops) is:?Establishments primarily engaged in manufacturing power and marineboilers, pressure and nonpressure tanks, processing and storage vessels,heat exchangers, weldments and similar products, by the process ofcutting, forming and joining metal plates, shapes, bars, sheet, pipemill products and tubing to custom or standard design, for factory orfield assembly.? (Exh. C-301). Chuck Kutan testified that Saw nevermanufactured boilers, pressure or non-pressure tanks, heat exchangersand\/or weldments (Tr. 272-273). Saw claims the 3443 classification wasmade in good faith, based on a bullet on the bottom of a second pagelisting possible sample products which includes ?Pipe, large diameter:metal plate-made by plate fabricators.? Though Saw does fabricate largediameter pipe from steel plates, Saw does not fabricate metal plate. Allits plate is purchased (Tr. 110). Whitmore testified that no reasonableperson could have believed that 3443 was the applicable SIC for Saw (Tr.349-50). Temporary employees. Saw admits that injuries suffered bytemporary employees were not recorded on its OSHA 200 Logs or figuredinto its LWDII rates. Robert Murphey testified that he consulted the Blue Book(Tr. 132), which states in relevant part:If [a temporary laborer is] subject to the supervision of the usingfirm, the temporary help supply service contractor is acting merely as apersonnel department for the using firm, and the using firm must keepthe records for the personnel supplied by the service. If the temporaryworkers remain subject primarily to the supervision of the supplyservice, the records must be kept by the service. In short, the recordsshould usually be kept by the firm responsible for the day-to-daydirection of the employee?s activities. (Exh. C-278, p. 24). Murphey, however, testified that he believedinjuries to temporary workers were recorded by Labor Ready, thepersonnel agency that supplied Saw?s temporary laborers, because theLabor Ready representative, Gary Young, once asked him for a blank 200log (Tr. 97-98, 110, 122). Murphey also testified that he read the instructions forfilling out the OSHA injury and illness data collection form in 1998 and1999 (Tr. 135). The form asks employers to ?Tell us about your employeesand the hours they worked.? The form directs the employer to estimateits average number of employees by ?[adding] together the number ofemployees your establishment paid in every pay period during 1998 [and1999]. Include all employees: full time, part time, temporary, seasonal,salaried and hourly,? and divide the answer by the number of pay periods(Exh. C-274, C-275, p. 3). The form goes on to ask how many hoursemployees actually worked during the relevant years and directs theemployer to ?[i]nclude hours worked by salaried, hourly, part-time andseasonal workers, as well as hours workers subject to day to daysupervision by your establishment (e.g. temporary help service workers)(Exh. C-274, C-275, p. 3). Murphey stated that he either ?missed thatpart,? or ?just didn?t get [it] down.? (Tr. 136). Saw argues that Murphey was not the only one whomisunderstood the reporting requirements. Labor Ready, the staffingagency that provided laborers for Jindal Steel kept its own OSHA 200 logfor laborers supervised by Jindal (\/Jindal\/, Exh. C, pp. 231-32, 562).In addition, after reviewing Chapter IV of OSHA?s Blue Book,Gary Jonesadvised Jindal?s safety manager, Craig Wetherington, not to recordinjuries to temporary laborers. Though Wetherington told Jones that hebelieved injuries suffered by temporary employees \/were\/ recordable,Jones insisted that such injuries should be recorded by the staffingagencies that provided the laborers (\/Jindal, \/Exh. A, pp.221-22;\/Jindal\/; Tr. 561-62, 588-90).\/Discussion\/ The Commission has defined a willful violation as one?committed with intentional, knowing or voluntary disregard for therequirements of the Act or with plain indifference to employee safety.?\/Valdak Corp.\/, 17 BNA OSHC 1135, 1136, 1993-95 CCH OSHD ?30,759, p.42,740 (No. 93-239, 1995), \/aff’d,\/ 73 F.3d 1466 (8th Cir.1996).Moreover, a series of disparate violations may be found to bewillful if there is evidence that such violations are part of adeliberate pattern, practice, or course of conduct. \/See, Kaspar WireWorks, Inc. (Kaspar), \/18 BNA OSHC 2178, 2000 BNA OSHC ?32,134 (No.90-2775, 2000), \/appeal filed\/, No. 00-1392 (D.C. Cir. Sept. 26, 2000). The Secretary maintains that Saw engaged in a deliberatepattern of under reporting in order to avoid being targeted for OSHAinspection. Saw maintains that the evidence in the record isinsufficient to demonstrate Saw?s motives, arguing that neither GaryJones nor Robert Murphey knew or could have predicted the criteria OSHAwould be using to target specific industries in any given year. However,any safety and health officer who knows that employers? LWDII are usedto target inspections, would also know that an employer?s chances ofbeing inspected are reduced if it produces an extremely low LWDII. Inany event, the Commission has held that he Secretary need not show thatthe employer had an evil or malicious motive to show willfulness. Inother words, Complainant needn?t prove \/why\/ Saw engaged in thedemonstrated practice of under-reporting. ?The state of mind requiredfor a willful violation need be only knowing, voluntary, orintentional.? \/Id. \/at 2183-84. Complainant need only show that thedemonstrated practice of under-reporting was deliberate. During therelevant time period, Saw failed to record 63.7% of all reportable caseson its OSHA 200. Of those cases that were reported, 40.6% wereerroneously listed as involving no lost or restricted work days.Footnote Thesheer number of unreported injuries in this case cannot be explained bysimple negligence. Those numbers, when viewed in light of thetestimonial evidence, discussed more fully below, are sufficient toestablish that the comprehensive under-reporting of injuries and lostworkdays in this case was knowing and intentional and, therefore, willful. Charles Kutan was hired in 1995 to act as Saw?s humanresources and safety director. Though Kutan had no prior training insafety and health, and though he had dual responsibility for humanrelations and safety, Kutan managed to correctly determine Saw?s SICcode, and to record injuries as they occurred. A month after Gary Jonestook over as human resources director in 1997, he was able to hire asafety director, first Ronnie Johnson and then Robert Murphey, with whomhe could effectively split the duties that Kutan previously handledalone. Jones, Johnson and Murphey all had considerable safety and healthexperience. They inherited a pre-existing reporting system under whichplant managers and supervisors were to report injuries and accidents tothe safety director. Additional procedures, which should have increasedreporting accuracy, were instituted. An on-site clinic was established,where a Licenced Vocational Nurse (LVN) could evaluate injuries, andprovide limited treatment. The on-site nurse kept a sign-in log, whichthe safety manager could use to double check his OSHA log. When injuredemployees were seen by a physician, Return To Work (RTW) forms detailingemployees? work restrictions were faxed to Saw from the off-site clinic.Despite the increase in the number and expertise of safety personnel,however, the timeliness and accuracy in recording injuries plummetedafter Jones took over the management of Saw?s safety department. NeitherJones nor Saw provided any explanation for the drop in the LWDII onSaw?s 1997 OSHA 196 summary, which was 2.7, down from 9.55 the yearbefore. Reporting accuracy did not improve when Robert Murphey took overresponsibility for the logs in May 1998. Though Murphey claimed to havemade every attempt to follow up on accidents and incidents at the Sawfacility in order to ascertain whether all recordable injuries had beenreported, and maintained that he used available accident reports and thesign in logs from the on-site infirmary to ensure the accuracy of theOSHA 200 logs, injuries and lost workdays continued to beunder-reported. LWDII rates of 3.06 and 4.18 were submitted for 1998 and1999, respectively. Given the reporting system available to Murphey, this judgecannot credit Saw?s contention that he did not possess \/actual\/knowledge, either of the occurrence, or of the extent, of citedemployee injuries. First, Saw points out that Murphey ?relied heavily?on accident reports submitted from first line supervisors, reports whichSaw maintains were infrequently filled out. Saw further argues thatthere was not enough information on the accident forms returned from theoff-site clinic for Murphey to make a determination of recordability.Finally, Saw argues that the nurses? log, on which Murphey also relied,was incomplete and failed to provide Murphey with notice of citedinjuries. Saw?s arguments fail because, though there were lapses inreporting, there were so many redundancies in the way injuries werereported at Saw, it would have been impossible for almost \/two thirds\/of reportable injuries to go unrecognized by the safety manager. Forinstance, Saw?s justifications do not explain Murphey?s failure to record: Item 22. On September 28, 1998 Myron Ferguson suffered alaceration to his thumb. His supervisor filled out an incident report(Exh. C-60). Nurse Stipes saw Ferguson on-site, and after dressing thewound she referred him to BayCoast emergency. In her clinical notesStipes noted ?considerable? bleeding (Exh. C-61). The clinic log clearlyreflects that Mr. Ferguson was sent to the emergency room (Exh. C-248,p. 4). Ferguson?s wound was sutured, and his treatment was listed on theRTW form generated by BayCoast for Saw (Exh. C-62, p. 6). In this case,there was an incident report, a log entry indicating a referral to theemergency room and an RTW form stating that sutures, recordable medicaltreatment had been provided (Exh. C-278, p. 43). It is difficult toconceive how Murphey?s failure to report this injury could have beenanything other than intentional. Item 40, Alan Edgar suffered a probable 2^nd degree burn onMarch 22, 1999. Edgar reported the injury to Murphey on March 24;Murphey treated Edgar?s burn for two days before taking him to theon-site clinic on March 26, after which Saw?s nurse, Helen Stipe,treated the burn with repeated applications of a prescription antisepticointment (Exh. C-118). The log from the on-site clinic lists threevisits by Alan Edgar; each listing contains a description of his injuryand the medical treatment received (Exh. C-249, p. 5). Saw is correct in stating that there was no accident reportfiled in this case. However, Murphey had actual knowledge of thisinjury, having treated the victim himself and taken him to the clinicnurse. He had access to the log, which details multiple repeat visits tothe clinic for antiseptic dressings. The Blue Book clearly states thatthe ?[a]pplication of ANTISEPTICS during second or subsequent visit tomedical personnel? is recordable (Exh. C-278, p. 43). Saw?s explanationsdo not account for Murphy?s failure to record this item. Item 42, On April 2, 1999 Jose Garza suffered 1^st and 2^nddegree burns to his shoulder. Bob Murphey treated the injury beforesending Garza to the on site clinic. Garza also visited the OccuCareclinic, where an accident report was generated, indicating that theburns were diagnosed as 3^rd degree. Ms. Stipe continued to administerrepeated applications of antiseptics until April 8 (Exh. C-121, C-122).Five separate visits to the on site clinic are listed in the clinic log;the record of each visit includes a description of the injury and thetreatment administered (Exh. C-249, p. 6). As in item 40, Murphey was shown to have actual knowledge ofthe unrecorded injury. Although the Blue Book clearly states that the?[a]pplication of ANTISEPTICS during second or subsequent visit tomedical personnel? is recordable (Exh. C-278, p. 43), Murpheyinexplicably failed to record this injury. Item 51. On August 9, 1999 Reyes Garcia suffered a severecontusion to his right shin. Robert Murphey applied an ice pack to thesite for 20 minutes before sending Garcia to the on-site clinic, wherean additional ice pack was applied (Exh. C-142). After returning to workthree days later, Garcia returned to the clinic no less than eight timesfor repeated treatments with ice and heat packs (Exh. C-142, C-249, p.10). Each of the eight entries on the clinic log refers to both the shininjury and the treatment provided (Exh. C-249, p. 10). Again, Murphey had first hand knowledge of the occurrence ofthis injury, and the nurses log clearly details the course of Mr.Garcia?s treatment. The Blue Book clearly states that the ?applicationof hot or cold COMPRESS(ES) during second or subsequent visit to medicalpersonnel? is recordable medical treatment (Exh. C-278, p. 43). YetMurphey failed to record this item. The evidence establishes by a preponderance of the evidencethat Murphey had actual knowledge of each of the clearly recordableinjuries discussed above. This judge can only conclude that his failureto record these injuries was intentional. The Secretary made no attemptto prove that each of the cited items demonstrates such patent indiciaof willfulness, and this judge declines to examine each instance forsuch evidence. Because the Secretary has alleged a single pattern ofunder-reporting, this sampling of clearly recordable injuries, of whichMurphey had first hand knowledge, and yet failed to record is materialevidence that Saw engaged in a deliberate practice of under-reporting. Saw?s intentional failure to record injuries sustained bytemporary laborers is also evidence of an intentional practice ofunder-recording. Saw argues that its practice reflected its employees?good faith misinterpretation of the OSHA guidelines referring totemporary workers, and so cannot, as a matter of law, be found willful.However, though it is true that a finding of willfulness is notjustified where the employer had a good faith opinion that the violativeconditions conformed to the requirements of the cited standard, theCommission has held that the test of good faith for these purposes is anobjective one. The employer?s belief concerning a factual matter, or ashere, concerning the interpretation of a standard, must have beenreasonable under the circumstances. \/Calang Corp.\/, 14 BNA OSHC 1789,1987-90 CCH OSHD ?29,080 (No. 85-319, 1990). In this case it isabundantly clear that the temporary labor contractor with whom Saw dealtacted merely as a conduit to provide labor for Saw. Saw was responsiblefor the day-to-day direction of the employees? activities. According tothe plain language of the Blue Book, Saw was the firm responsible forkeeping the required OSHA injury and illness records. The fact that thetemporary agency also recorded injuries sustained by its temporaryworkers did not affect Saw?s duty under the standard.For Jones, who isan attorney, and who worked in the employee relations and compliancedepartment at Brown & Root before joining Saw Pipes, to have interpretedthe Blue Book in any other way is not only unreasonable, but incredible.Moreover, the record establishes that Jindal?s safety manager, CraigWetherington, was not only knowledgeable in safety and health mattersbut specifically told Jones that the supervising employer had a duty torecord such injuries. Jones not only ignored Wetherington, butinstructed him to continue under-reporting Jindal?s injuries or risklosing his job. Wetherington?s testimony describes Jones? dealings withJindal?s safety personnel, but is strong evidence of state of mind, andof his bad faith in dealing with OSHA. Finally, Robert Murphey?s claimto have ?missed? those portions of the OSHA forms that clearlyinstructed him to include temporary workers in his calculations is nomore believable than Jones? misinterpretation of OSHA regulations and isnot credited. Lastly this judge finds that Jones? inexplicable change ofSaw?s SIC code to the code for boiler shops constitutes additionalevidence of bad faith.After reading the relevant SIC definitions, thisjudge agrees that no reasonable person, and certainly not a professionalwith Jones? experience in safety and health, could have believed that3443 was the applicable SIC for Saw. Even if Saw is correct in arguingthat Jones could not have known that changing the SIC code would affectthe likelihood of an OSHA inspection, the fact remains that Jonesactually turned an OSHA inspector away in 1998 on grounds that OSHA hadthe wrong SIC code. This judge credits the testimony of complainant?s witnesses,Craig Wetherington and Carl Davis, both of whom concluded, based ontheir dealings with Gary Jones, that Saw was pursuing a course ofconduct intended to reduce the number of injuries reported to OSHA.Those witnesses have no stake in the outcome of this matter, and thisjudge finds their testimony compelling. When viewed together with thepercentage of unrecorded injuries occurring during the relevant timeperiods, and the clear recordability of a number of those injuries, thisjudge can only conclude that Saw?s failure to report and under-reportingof injuries was part of a pattern of deliberate, \/i.e.\/ willful conduct.Penalty While the Secretary has often exercised her authority togroup related violations and propose a single penalty for a number ofrelated violations, she chose not to do so in this case. Rather theviolations were assessed individually, at $8,000.00 apiece, resulting inan aggregate penalty of $536,000.00. While it is clear that theSecretary may propose multiple penalties for separate violations of therecordkeeping standard, Commission review of the proposed penalty is \/denovo,\/ and the judge has discretion to assess a single penalty if deemedappropriate. \/See, Pepperidge Farm, Inc.\/, 17, BNA OSHC 1993, 1997 CCHOSHD ?31,301; \/citing, Miniature Nut and Screw Corp.\/ 17 BNA OSHC 1557,1996 CCH OSHD ?30,986 (No. 93-2535, 1996). Complainant?s departure from grouping similar violationsresults in an aggregate penalty that is disproportionate to theviolation and overstates its gravity. The record demonstrates thatComplainant did not base the gravity of Saw?s under-reporting on theseverity of the actual unreported injuries, which consist mainly ofminor burns, contusions and foreign bodies in the eye. RatherComplainant argues that the gravity of the violation was high becauseSaw attempted to avoid inspections by falsely reducing its LWDII.However, the record does not clearly establish that Saw would actuallyhave been inspected had it reported all injuries. A review of the safetyviolations, which, unlike record keeping violations, pose actual safetyhazards to affected employees, does not indicate that this employer wasattempting to cover up serious safety hazards by deferring OSHAinspections. In fact, for safety violations found at Saw?s facilityduring the July 2000 inspection, OSHA proposed penalties of only$82,000.00, less than 16% of the penalties assessed for the recordkeeping violations. In addition, at the hearing Complainant advanced the theorythat Saw engaged in a single pattern and practice of willfulnon-reporting. Complainant argues that having generally established sucha pattern, it follows that all unrecorded and under-recorded violationswere willful. Complainant made no attempt to prove that Saw willfullyfailed to record each individual injury. The evidentiary path chosen byComplainant was considerably less onerous than showing willfulness ineach and every instance. While choosing to make a single showing of apattern and practice of under-reporting, Complainant nevertheless seeksto have each instance of under-reporting assessed individually, asthough she had proved that Saw possessed a willful state of mind in eachinstance. Taking these factors into account, I find that a moreappropriate penalty would be reached by grouping all record keepinginstances into a single violation with a single penalty. While the individual injuries Saw failed to record were notserious, and though Saw did not appear to be shielding a large number ofsafety violations by under reporting, the gravity of Respondent?sunder-reporting was nonetheless high. In this case, Saw crossed the linefrom simple non reporting to attempting to influence work restrictionsordered by Dr. Davis. Work restrictions not only make an injuryreportable, but, more fundamentally, are physician?s orders that embodymedical treatment, containing orders necessary for the patient?srecovery. To urge a physician to limit or refrain from issuing workrestrictions interferes with the patient?s medical treatment andintrudes on the doctor\/patient relationship. Saw, through Gary Jones,attempted to influence medical treatment to shield itself frominspections. I do not find it relevant that Dr. Davis did not yield toSaw?s pressure, or that specific employees were not identified. I findthat the gravity of this violation is, therefore, high and the statutorymaximum penalty of $70,000.00 is appropriate. ORDER1. Wilful citation 1, items 1 through 16, alleging violation of?1904.2(a), are AFFIRMED.2. Citation 1, item 17, alleging violation of ?1904.2(a), isVACATED.3. Wilful citation 1, items 18 through 20, alleging violation of?1904.2(a), are AFFIRMED.4. Citation 1, item 21, alleging violation of ?1904.2(a), isVACATED.5. Wilful citation 1, item 22, alleging violation of ?1904.2(a),is AFFIRMED.6. Citation 1, item 23, alleging violation of ?1904.2(a), isVACATED.7. Wilful citation 1, items 24 through 26, alleging violation of?1904.2(a), are AFFIRMED.8. Citation 1, item 27, alleging violation of ?1904.2(a), isVACATED.9. Wilful citation 1, item 28, alleging violation of ?1904.2(a),is AFFIRMED.10. Citation 1, item 29, alleging violation of ?1904.2(a), is VACATED.11. Wilful citation 1, items 30 through 33, alleging violation of?1904.2(a), are AFFIRMED.12. Citation 1, item 34, alleging violation of ?1904.2(a), is VACATED.13. Wilful citation 1, items 35 through 43, alleging violation of?1904.2(a), are AFFIRMED.14. Citation 1, item 44 alleging violation of ?1904.2(a), is VACATED.15. Wilful citation 1, items 45 through 62, alleging violation of?1904.2(a), are AFFIRMED.16. Citation 1, item 63, alleging violation of ?1904.2(a), is VACATED.17. Wilful citation 1, items 64 through 66, alleging violation of?1904.2(a), are AFFIRMED.18. Wilful citation 1, item 67(1) through 67(7) alleging violationof ?1904.2(a), are AFFIRMED.19. Citation 1, item 67(8), alleging violation of ?1904.2(a), isVACATED.20. Wilful citation 1, items 67(9) through 67(14), allegingviolation of ?1904.2(a), are AFFIRMED.21. Citation 1, items 67(15) and 67(16) alleging violation of?1904.2(a), are VACATED.22. The violations affirmed are combined for purposes of assessinga penalty. A single penalty of $70,000.00 is ASSESSED. \/s\/ JamesH. Barkley Judge,OSHRC Dated:May 30, 2002″