THE STATE OF OREGON

                           HEARINGS DIVISION

Oregon Occupational Safety &                                    
  Health Division			)  DOCKET NO. SH89291


		Plaintiff		)

		vs.			)


		Defendant		)  OPINION AND ORDER

	Pursuant to notice, hearing convened in Bend, Oregon on March
27, 1990 concerning a contested case under the Oregon Safe
Ernployment Act, ORS 654.001 to 654.295 and 654.991. The
plaintiff, accident Prevention Division (APD), appeared through
its attorney, Norman F. Kelley, Assistant attorney General. The
defendant, Rodney Smith Trucking, Inc., was represented by
Sandra Smith, an officer of the corporation. The parties
presented evidence and statements and stipulated that Smith's
statements were to be considered the equivalent of testimony.
Pat Martin of Business Support Services recorded the proceedings.


	Propriety of an assessed penalty. Whether defendant's lack of
knowledge of administrative regulations and its immediate
compliance with the law once it learned it was in violation
absolves it of liability for an assessed penalty.

                       FINDINGS  OF FACT

	This case arises out of a citation the plaintiff issued on
September 6, 1989 to Rodney Smith Trucking, Inc., an employer
subject to the Oregon Safe Employment Act. A Safety Compliance
Officer for the Accident Prevention Division (APD) cited
defendant for operating a new BARKO 270 hydraulic log loader
without having a guard or barrier in front of the operator's
windshield. Ex 2. The Safety Compliance Officer also cited the
employer for allowing its employees to approach the hazardous
pinch point area of the log loader without informing the
operator of that intent or receiving acknowledgment from the
operator that the operator understood the employee's intention.

	APD assessed a $105 penalty for the lack of a windshield guard
but assessed no penalty for the pinch point violation. Ex. 3.

	Defendant owns and operates four log trucks. The violation
occurred on August 14 1989 at the Abbot Springs Sale site
approximately 17 miles Northwest of Camp Sherman Oreqon. Ex. 23.
Defendant had just purchased the log loader and was unaware of
the Administrative Rules' requirements concerning guards and
machine operation. The log loader came without a windshield
guard designed to prevent logs from crashing into the operator's
cab. Learning of the need for the windshield guard via the
inspection defendant promptly ordered the $850 device and had it
installed on its loader on or before September 9 1989. Ex. 25
Defendant has no record of prior offenses.

                     CONCLUSIONS AND  OPINION

	The audience shows that the defendant promptly ordered and
installed a satisfactory metal guard over the cab windshield of
the log loader. At hearing Ms. Smith carefully and credibly
explained that defendant had no prior record of violations and
that because this was the first log loader it had purchased
defendant was unfamiliar with the safety regulations concerning
log loaders. Defendant bought the loader in the same condition
the Safety Compliance Officer observed on August 14 1989 and
defendant had received no warnings of the need for a windshield
barrier prior to that time. The employer also urged that its
prompt compliance and a good safety record merited an absolution
of the penalty APD assessed.

	The purpose of the Oregon Safe Employment Act is to assure as
far as possible safe and helpful working conditions for every
Oregon worker and to preserve human resources and reduce the
substantial burden in terms of lost production wage loss medical
expenses disability compensation payments and human suffering
created by occupational injury  and disease. ORS 654.003. In
order to accomplish these goals the Oregon l legislature
established a coordinated program of worker and employer
education health and safety consultative services and
demonstration projects and research to assist workers and their
employers in preventing occupational injuries and disease from
whatever cause.   ORS 656.003(2).  However the act also contains
mandatory Provisions:

	Every employer shall furnish employment and a place of
employment which are safe and healthful for employees therein
and shall. furnish and use such devices and safeguards and shall
adopt and use such practices means methods operations and
processes as are reasonably necessary to render such employment
and place of employment safe and healthful, and shall do every
other thing reasonably necessary to protect the life, safety and
health of such employees. ORS 654.010.

	Further, employers are prohibited from constructing unsafe or
unhealthy places of employment or interfering with safety
devices or methods. ORS 654.015, 659.020. Every employer and
employee has the duty to comply with all safety and health
orders, decisions and rules. ORS 654.022.

	The Director of the Department of Insurance and Finance has
general jurisdiction and supervision concerning matters of safe
employment. Pursuant to ORS 654.031, whenever the Director has
reason to believe, after an inspection or investigation, that
any place or method, process or operation of employment is
unsafe, the Director shall issue such appropriate citation and
order as may be necessary to render such employment or place of
employment safe and to protect the life, safety and health of
the employees. Further, the Director may in the order direct
that certain additions, repairs, improvements or changes be made
and that various devices and safeguards be furnished, provided
and used as are reasonably required to render the employment or
place of employment safe and healthful in the manner and within
the time specified in the order. ORS 654.031.

	additionally, the Director may by general or special orders fix
reasonable standards and prescribe and enforce reasonable orders
for the adoption, installation, use and maintenance of devices,
safeguards and other means of protection as may be necessary to
carry out the laws concerning the safety and health of
employees. ORS 654.035. Following inspections, revealing safety
violations the Director hall with reasonable promptness, issue
to an employer a citation and notice of proposed civil penalty,
if any, to be assessed under the chapter and fix a reasonable
time for correction of alleged violations. ORS 654.067, 071(1).

	Pursuant to legislative direction and statutory authority, the
Director has adopted various administrative rules and
regulations concerning the safety of logging operations. ORS
654.003, 654,.025. These are found in OAR Chapter 437, Division
80. OAR 438-80-270(2) provides that logging machines shall be
equipped with barriers and bulkheads to protect the operator
when a design, location or use of such machines exposes the
operator to materials or loads being handled. On this case, the
required guard protects operators from logs crashing through the
operator's cab windshield.

	Concerning the administration of the Oregon Safe Employment
Act, the Director has adopted Administrative Rules. OAR
437-01-015(55)(2)(A) provides that a serious violation is one in
which there is a substantial probability that death or serious
physical harm could result from an employment condition,
practice or operation. (An exception exists if the employer did
not, and could not with the exercise of reasonable diligence
know of the presence of the violation.) The Administrative Rules
define "serious physical harm" as injuries that could shorten
life or significantly reduce physical or mental efficiency by
inhibiting, either temporarily or permanently, the normal
function of a part of the body. Examples of such injuries are
amputations, fractures of major bones (both simple and
compound), deep cuts involving significant bleeding which
require extensive suturing, disabling burns, concussions,
significant internal injuries, and other cases of comparable
severity. OAR 437-01-015(50)(a). The Director properly
classified the offense as serious in this instance.

	OAR 437-01-145 establishes a penalty schedule for violations.
Table 1 of OAR 437-01-145 provides that a penalty for a
violation of low probability but of serious severity is $150.
The penalty may be reduced by 30 percent for a good safety
record. OAR 437-01-145(2)(b). However, the assessment of some
penalty is mandatory.   OAR 437-01-145(1), (2). Therefore, the
facts that the defendant promptly corrected the violation, did
not violate the law willfully, and has good record, at most, can
result in only a reduction of the penalty. OAR 437-01-145.

	Although defendant was unaware of the specific requirements of
placing a guard over the operator's cab windshield of the log
loader, that lack of awareness does not constitute legal cause
for failing to assess a penalty or for absolving the defendant
of its liability to pay the penalty. Defendant had learned the
safety procedures and regulations concerning the operation of
log trucks. It had recently purchased the log loader and was
under similar obligation to learn of the safety requirements for
the operation of that type of equipment. There is no authority
for eliminating the penalty assessment merely because the
employer was unaware of the windshield guard requirements. At
the same time, the employer's responsible action in immediately
correcting the deficiency and its excellent safety record in the
past are reflected in the appropriate reduction of the legally
required minimum penalty from $150 to $105.


	Citation number R653615089, issued September 6, 1989, is

	NOTICE TO ALL PARTIES: You are entitled to judicial review of
this Order. Proceedings for review are to be instituted by
filing a petition in the Court: of appeals, Supreme Court
Building, Salem, Oregon 97310, within 60 days following the date
this Order is entered and served as shown here on. The procedure
for such judicial review is prescribed by ORS 183.480 and ORS

	Entered at Salem, Oregon  April 17, 1990