     Case: 12-60834      Document: 00512432611         Page: 1    Date Filed: 11/06/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                               United States Court of Appeals
                                                                                        Fifth Circuit

                                                                                      FILED
                                    No. 12-60834                               November 6, 2013
                                  Summary Calendar
                                                                                 Lyle W. Cayce
                                                                                      Clerk

SHAW GLOBAL ENERGY SERVICES, INCORPORATED,

                                                 Petitioner
v.

THOMAS E. PEREZ, SECRETARY, DEPARTMENT OF LABOR,

                                                 Respondent




               Petition for Review of an Order of the Occupational
                      Safety and Health Review Commission
                                   No. 09-0555


Before WIENER, OWEN, and HAYNES, Circuit Judges.
PER CURIAM:*
       Shaw Global Services, Inc. (“Shaw”) appeals the Occupational Safety and
Health     Review     Commission’s       (the   “Commission”)       affirmance       of      an
Occupational Safety and Health Administration (“OSHA”) citation for failure
to record an employee’s work-related illness pursuant to 29 C.F.R.
§ 1904.29(b)(3). Shaw further appeals an OSHA Administrative Law Judge’s
(“ALJ”) affirmance of an OSHA citation for failing to abide by the annual


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                      No. 12-60834
respirator fit-testing requirement pursuant to 29 C.F.R. § 1910.134(f)(2). We
DENY Shaw’s petition and AFFIRM the decisions of the Commission and the
ALJ.
                       I. Factual and Procedural History
       Shaw contracted to demolish the cell room of a chemical plant, which
involved removing pipes, tanks, and equipment that contained residual
amounts of mercury. The demolition workers wore respirators and submitted
to urinalysis tests to monitor mercury levels in their bodies. Five weeks after
Channing Stanfield began performing demolition work on the cell room, his
urinalysis measurement for mercury exceeded 75 µg/g—the level at which
Shaw removed its employees from demolition work in the cell room. 11 Shortly
after his reassignment from demolition work in early September, Stanfield
experienced a non-work-related back injury, and a doctor recommended two
weeks of light duty. Rather than assign him to light duty work, Shaw sent
Stanfield home to recover.
       Over the next few weeks, Stanfield visited the emergency room several
times complaining of symptoms consistent with mercury toxicity. According to
Stanfield, a toxicologist diagnosed him with mercury toxicity, and he was
admitted to the hospital for several days to receive treatment.                   Stanfield
informed Shaw’s safety manager of his diagnosis and symptoms, which had
started in early September. Shaw’s safety manager visited Stanfield in the
hospital where he was again informed, this time by Stanfield’s parents, that


       1  Shaw explains that its practice of removing employees whose mercury levels reach
75 µg/g falls within the Chlorine Institute’s (“CI”) guidelines, which suggest that temporary
removal of employees may be appropriate at a mercury level of 100 µg/g or above.

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                                 No. 12-60834
Stanfield was being treated for mercury toxicity. Stanfield did not provide his
medical records to Shaw, and Shaw questioned Stanfield’s diagnosis. After an
investigation, Shaw concluded that Stanfield’s symptoms were not a result of
mercury exposure and, therefore, decided not to record his alleged illness.
      After inspecting the chemical plant, OSHA issued Shaw the two citations
at issue. The first citation, classified as an other-than-serious violation, was
based on Shaw’s failure to record Stanfield’s work-related illness as required
by § 1904.29(b)(3). The second citation, classified as a serious violation, was
based on Shaw’s failure to abide by the annual respirator fit-testing
requirement under § 1910.134(f)(2). Although Shaw had its employees fit-
tested for respirators prior to their use, four Shaw employees who were fit-
tested in June 2007 were not again re-tested until sixteen months later in
October 2008.
      Following a hearing, the ALJ affirmed the two citations. Shaw sought
review by the Commission, which declined to review the respirator fit-testing
citation, but accepted the record-keeping citation for review and affirmed the
decision of the ALJ. Shaw petitioned this court pursuant to 29 U.S.C. § 660(a)
for review of the Commission’s decision concerning the record-keeping citation
and the ALJ’s decision concerning the respirator fit-testing citation.
                       II. Record-Keeping Citation
      Section 1904.29(b)(3) requires employers to record an employee’s “injury
or illness on the OSHA 300 Log and 301 Incident Report within seven (7)
calendar days of receiving information that a recordable injury or illness has
occurred.” The parties do not contest that mercury toxicity is a recordable
illness and that Shaw did not record any alleged mercury-related illness
reported by Stanfield in its record-keeping logs. Therefore, the only issue is
whether Shaw “receiv[ed] information that a recordable injury or illness ha[d]


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                                 No. 12-60834
occurred” that would require Shaw to record Stanfield’s alleged injury in its
logs. See § 1904.29(b)(3).
      Shaw argues that the Commission applied an incorrect legal standard in
interpreting § 1904.29(b)(3) because the regulation requires recording only
when the employer “make[s] a reasonable judgment based on the information
and expertise available to it” that the employee experienced a recordable injury
or illness. See Amoco Chems. Corp., 12 BNA OSHC 1849, at *7 (No. 78-0250,
1986). Conversely, according to the Secretary of Labor (the “Secretary”), the
recording requirement is triggered whenever an employer receives information
sufficient to put it on notice that a recordable injury or illness has occurred,
irrespective of the employer’s judgment of whether recording is necessary. We
normally defer to the Secretary’s interpretation of an OSHA regulation when
it “is consistent with the regulatory language and is otherwise reasonable.”
Trinity Marine Nashville, Inc. v. Occupational Safety & Health Review
Comm’n, 275 F.3d 423, 427 (5th Cir. 2001) (emphasis omitted) (citation and
quotation marks omitted).      However, we need not decide if a recording
obligation is triggered only when the employer makes a reasonable judgment
that recording is necessary because the Commission concluded that Shaw’s
decision not to record Stanfield’s alleged illness was “plainly unreasonable”
under Amoco Chemicals in light of the information available to it. As a result,
even employing Shaw’s interpretation of § 1904.29(b)(3), we must affirm the
Commission’s decision.
      “We are bound by the [Commission’s] findings on questions of fact and
reasonable inferences drawn from them if they are supported by substantial
evidence on the record considered as a whole even if this court could justifiably
reach a different result de novo.”      Trinity Marine, 275 F.3d at 426-27.
Moreover, we will not disturb the Commission’s legal conclusions unless “they


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                                       No. 12-60834
are arbitrary, capricious, an abuse of discretion, or otherwise not in accordance
with [the] law.” Id. at 427 (citation and internal quotation marks omitted).
       Based on the testimony and exhibits presented during a three-day
hearing before the ALJ, the Commission found that Shaw was aware that
Stanfield worked in an environment that could have exposed him to mercury
and that his urinalysis result suggested he had been exposed to mercury.
Further, the Commission found that both Stanfield and his parents informed
Shaw that he was undergoing treatment for mercury toxicity and that Shaw’s
safety manager admitted visiting Stanfield because he was being treated for
mercury toxicity. Based on these findings, the Commission concluded “that
Shaw had sufficient information to determine that a recordable illness had
occurred.”
       The Commission also concluded based on its findings that “Shaw’s
decision not to record was plainly unreasonable,” especially in light of the fact
that Shaw’s safety manager admitted to visiting Stanfield in the hospital
because he was being treated for mercury toxicity.                 Shaw argues that its
decision not to record was reasonable because it did not have an opportunity
to review Stanfield’s medical records. Although Shaw understandably desired
to review Stanfield’s medical records, we cannot conclude that the absence of
medical records rendered the Commission’s conclusion arbitrary or capricious
in light of its findings concerning the information in Shaw’s possession
suggesting Stanfield had experienced a recordable illness. 2                     Therefore,


       2  Shaw further asserts that it made a reasonable judgment that recording of
Stanfield’s alleged illness was unnecessary because: (1) Stanfield’s mercury levels were below
the level the CI considers dangerous; (2) Stanfield was allegedly diagnosed over a month after
working in the cell room; and (3) no other employees who worked in the cell room presented
with mercury toxicity symptoms. Although these facts may suggest that Stanfield did not
experience a recordable illness, they do not establish that the Commission arbitrarily or
capriciously concluded that Shaw’s decision not to record was “plainly unreasonable” in light
of the significant amount of evidence suggesting that Stanfield experienced mercury toxicity.
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                                  No. 12-60834
applying the reasonable judgment standard of Amoco Chemicals—the
standard that Shaw advocates on appeal should be applied—the Commission
concluded that the citation for Shaw’s failure to record pursuant to
§ 1904.29(b)(3) was proper. See Amoco Chems., 12 BNA OSHC 1849, at *7.
Therefore,   even    under   Shaw’s    interpretation   of   the   record-keeping
requirement, the Commission’s decision that Shaw’s failure to record was
“plainly unreasonable” was not arbitrary or capricious, and its order must be
affirmed.
                     III. Respirator Fit-Testing Citation
      OSHA also cited Shaw for failing to perform annual respirator fit-
testing. The respirator fit-testing regulation requires employers to “ensure
that an employee using a tight-fitting facepiece respirator is fit-tested prior to
initial use of the respirator, whenever a different respirator facepiece . . . is
used, and at least annually thereafter.” § 1910.134(f)(2) (emphasis added).
The annual fit-testing requirement is based on “the recognition that
standardized fit-testing protocols greatly increase the effectiveness of
respirators.” Respiratory Protection, 63 Fed. Reg. 1152, 1157 (Jan. 8, 1998)
(codified at 29 C.F.R. § 1910.134). The parties do not contest that there was a
sixteen-month gap between the initial fit-testing and the subsequent test for
four of Shaw’s employees. Therefore, the only issue on appeal is whether
§ 1910.134(f)(2)’s requirement that testing be performed “at least annually”
allows for this gap between testing.
      Shaw argues that “at least annually” requires that testing must occur at
least once per calendar year. Therefore, under Shaw’s approach, because the
initial fit-testing was performed in June 2007, its subsequent fit-testing in
October 2008 was timely. Notably, under this interpretation an employer who
performs testing in January would not be required to perform additional
testing until December of the following year, thereby creating a twenty-three
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                                       No. 12-60834
month gap between fit-testing. Such an approach is unreasonable in light of
the regulation’s plain language requiring testing “at least annually.” It would
also subvert the regulation’s purpose of creating standardized testing protocols
because it would allow for gaps ranging from twelve to twenty-three months
between fit-testing.
       Conversely, the Secretary interprets this phrase as requiring fit-testing
“no later than 365 days after the previous testing.” We defer to the Secretary’s
interpretation of OSHA regulations when it “is consistent with the regulatory
language and is otherwise reasonable.”              Trinity Marine, 275 F.3d at 427
(emphasis omitted) (citation and quotation marks omitted).                     Interpreting
“annually” to refer to a 365-day period, as advocated by the Secretary, is
consistent with the regulation’s plain language and achieves the purpose of
standardizing the fit-testing protocols by ensuring that there are not
significant fluctuations in the amount of time between tests. 3 See 63 Fed. Reg.
1152, 1157. Therefore, because Shaw’s sixteen-month gap between fit-testing
violated § 1910.134(f)(2)’s requirement that testing be performed “at least
annually,” we affirm the ALJ’s order with respect to the fit-testing citation.
       Accordingly, Shaw’s petition for review is DENIED and the orders of the
ALJ and the Commission are AFFIRMED.




       3 While the regulation’s reference to “at least annually” cannot reasonably be
interpreted to allow for a sixteen-month gap in testing, we leave for another day the question
of whether a gap between testing of a year and a few days would violate § 1910.134(f)(2).
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