BEFORE THE WORKERS' COMPENSATION BOARD OF



                          THE STATE OF OREGON



                           HEARINGS DIVISION



Oregon Occupational Safety &                                    
  Health Division			)  Docket No: SH91073

	Plaintiff,			)  CITATION NO:	M6281011091

TREES INC. Defendant 			)  OPINION AND ORDER



Hearing was held in Medford, Oregon on July l9, l991 before
Philip A. Mongrain, Referee. Oregon Occupational Safety & Health
Division was represented by Assistant Attorney General Norman F.
Kelley. Trees, Inc. was represented by Attorney Jeremy Fellows.
The hearing was closed on July 25 following oral closing
arguments.



                           ISSUES



Whether the employer violated standards as alleged by a citation
issued on January 3, l991.



                        FINDINGS OF FACT



Alleged violation 1-l



The employer was engaged in a tree trimming operation on the
afternoon of November 16, 1990 utilizing an aerial boom truck
and a chipper (Mike Mitchell's testimony; Exhibit 3, page l).
The truck was parked on a slight curve facing south and occupied
more than one half but less than two thirds of the south bound
lane (Exhibit 3 (pages l, 2, 7)). The two man crew had placed a
series of orange marker cones around the truck from the rear to
the front (Exhibits 3 (pages 1, 2), 5 (pages 8, 9)). There was
ample room for two cars to pass next to the truck (Mike
Mitchell's testimony; Exhibit 5, page 9). Approximately 100 feet
to the rear of the truck was a four way stop intersection, in
which was a "utility work ahead" sign at the entrance of the
street leading to the truck (Exhibits 3 (page 7), 5 (pages l5)).
No signs were positioned so as to be seen by people approaching
the site from the south (Exhibits 3 (page 7), 5 (pages 68)). The
street is two lanes, posted at 25 mph with speeds of 30 to 35
mph common, and the traffic volume was "moderate" (Mike
Mitchell's testimony). A short distance south of the truck was a
sign designating a school crosswalk (Exhibit 5, page 7). The
weather was clear and dry with good visibility (Mike Mitchell's
testimony; Exhibit 5 (pages 16)). Cars approaching the work site
from the north, to the rear of the truck, encountered a
momentary "blind spot" for visibility of the left lane, and all
cars observed by the safety compliance officer slowed down and
proceeded slowly around the truck (Mike Mitchell's testimony;
Exhibit 5 (pages l, 2, 9)). The employer was cited for failure
to utilize a flagger or other appropriate traffic controls
(Exhibits l (page 3), 3 (page l)). Based on an assessment by the
Safety Compliance Officer that the circumstances represented a
medium probability of a serious injury to the employees, and
allowing a 30 percent reduction for the employer's past safety
record, the employer was assessed a fine of $350.00 (Mike
Mitchell's testimony; Exhibits l (page 3), 3 (page l)).



Alleged violation 1-2



The chipper that was in use by the crew was a "drum" type
chipper that is not required by American National Safety
Institute (ANSI) standards to be equipped with an emergency
shutoff button, and was not expected by the safety compliance
officer to include such a shutoff button (Mike Mitchell's
testimony, Robert Reeder's testimony). However, the employer had
installed a shutoff button on the machine in the mistaken belief
that it was required in Oregon, then ignored it upon learning to
the contrary, and the button had become disconnected (Robert
Reeder's testimony; Exhibit 3, page 3). The drum on such a
chipper runs down even after the machine is turned off, and the
employer felt that a shutoff button would give the employees a
false sense of security (Robert Reeder's testimony). Employees
are instructed in other procedures for dealing with emergency
situations involving the chipper (Robert Reeder's testimony).
The employer was cited for failure to repair defective equipment
in the form of a required shutoff button (Exhibits 1 (page 3), 3
(page 3)). Based on an assessment by the safety compliance
officer that the circumstance represented a medium probability
of a serious injury to the employees, and allowing the
appropriate 30 percent reduction, the employer was assessed a
penalty of $350.00 (Mike Mitchell's testimony; Exhibits l (page
3), 3 (page 3)).



Alleged violation 1-3



Withdrawn at the hearing.



Alleged violation 1-4

The chipper, a machine  of unknown weight, was connected to the
truck by a tow bar and two chains with open hooks on the ends
(Exhibits 3 (page 5), 5 (page 10)). The open hooks were placed
over a metal plate welded to the back of the truck (Mike
Mitchell's testimony; Exhibit 5, page 10). No evidence was
presented regarding the tensile strength of the chains. The
safety compliance officer testified to his belief that as
attached the chains would be insufficient to control the chipper
should the tow bar fail. Based on the attachment of the chain
hooks and length of the chains the compliance officer cited the
employer because the connection chains were insufficient to
control the chipper if the tow bar failed (Mike Mitchell's
testimony; Exhibit 3, page 5). Considering the apparent adequacy
of the tow bar the compliance officer concluded that there was a
low probability of a serious injury to the employees, and
allowing an appropriate 30 percent reduction assessed the
employer a penalty of $105.00 (Mike Mitchell's testimony;
Exhibit 3, page 5).



Alleged violation 1-5



Both sides of the chipper's engine compartment were unguarded
and open, exposing a vertical V-belt drive and fan (Mike
Mitchell's testimony; Exhibits 3 (page 6), 5 (page 11)). The
engine compartment is situated at a right angle to the line of
travel of the employees and within the frame work of the chipper
body, so it is not easily accessible (Mike Mitchell's testimony;
Exhibits 5 (page 11), 15). However, there were items of
equipment placed near the open compartment (Exhibit 5, page 11).
The chipper is not manufactured with side covers for the engine
compartment, although they are available as an option (Robert
Reeder's testimony Exhibit 11). A solid cover would create
excessive engine heat, but a porous metal cover would permit air
flow (Mike Mitchell's testimony). The employer was cited for
failure to guard or enclose the engine compartment (Exhibit l,
page 4). Based on an assessment by the safety compliance officer
that this fact situation represented a medium probability of
serious injury, and allowing a 30 percent reduction, the
employer was assessed a penalty of $350.00 (Exhibits

(page 4), 3 (page 6)).



Alleged violation 2-6



Only one traffic warning sign was positioned relative to the
work being performed, namely, a "utility work ahead" sign 75 to
100 feet north of the truck (Exhibits 3 (page 7), 5 (pages 19)).
Based on an inadequate number of signs the employer was cited
for failure to provide adequate and appropriate traffic controls
(Mike Mitchell's testimony; Exhibits 1 (page 5), 3 (page 7)).
Based on the compliance officer's conclusion that these facts
represented a low probability of serious injury, the employer
was assessed an initial penalty of $150.00 that was doubled as a
repeat violation of a citation issued in June, 1989 (Exhibits 1
(page 5), 3 (page 7), 4).   The June, 1989 citation erroneously
alleged a violation of sign construction when it should have
alleged a violation of the number of signs, but it was never
appealed (Mike Mitchell's testimony).



                   ULTIMATE FINDINGS OF FACT



(l) A flagger or other traffic control measures were not
required in order to protect the employees.



(2) The chipper was not defective equipment or an unsafe
condition because of the inoperative emergency shutoff button.



(3) Chains connecting the chipper to the truck were
insufficiently attached to control the chipper being towed,
representing a medium probability of a serious injury.



(4) The chipper engine's vertical drive belt was exposed,
representing a low probability of a serious injury.



(5) North bound cars were not warned by signs of work activity
ahead, representing a low probability of a serious injury.



                           OPINION



Alleged violation l-l



OAR 437-03-O01 29 CFR 1926.201(a)(1) provides that:



"When operations are such that signs, signals, and barricades do
not provide the necessary protection on or adjacent to a highway
or street, flagmen or other appropriate traffic controls shall
be provided." (emphasis supplied)



Adequate protection is obviously the standard established by
this regulation. Mr. Mitchell was of the opinion the standard
was not met. The Oregon Occupational Safety & Health Division
has the burden of proving this, and I am not persuaded that the
burden has been met.



The weather conditions were clear and dry and the work was being
performed in the middle of the day. Approaching from the north
all cars were warned by a sign and by orange cones that work was
proceeding ahead. That this was effective is demonstrated by the
fact that all cars observed approaching from the north slowed
down and proceeded slowly around the truck. A momentary blind
spot existed relative to oncoming left lane traffic, which
reasonably would be safely traversed by proceeding slowly. Cars
coming from the south had unlimited visibility on dry pavement,
and Mr. Mitchell admitted at one point in his testimony that
south of the work site cars slow down for a school crossing. In
fact, such reduced speed was one of the factors that persuaded
Mr. Mitchell to determine a low probability of an accident due
to an absence of signs. Finally, placement of a sign or signs
south of the work site would have added to the probable reduced
speed of cars approaching from the south.



Ideal weather conditions, unlimited visibility looking north, a
warning sign to the rear of the truck, orange cones around the
truck, cars slowing down from both directions, the probable
additional effect of a sign south of the work site. As I view
it, these factors represent "necessary protection" to the
employees, and a flagger or other traffic controls were not
necessary. Mr. Mitchell suggested that drivers could become
confused and disoriented. In my opinion, drivers so confused and
disoriented probably would be unaffected by a flagger or other
traffic controls. Therefore, I conclude that the cited standard
was not violated and alleged violation l-l must be dismissed.



Alleged violation 1-2



OAR 437-40-040(1) provides:



"All places of employment shall be inspected by a qualified
person...defective equipment or unsafe conditions found by these
inspections shall be replaced or repaired or remedied promptly."



The regulations adopted by ANSI do not require a shutoff button
on a drum type chipper. The safety compliance officer did not
expect such a shutoff button so apparently there is no
requirement in Oregon that a button be provided. However, a
button was installed by the employer because it was believed to
be required. The drum on such a chipper will continue to run
down even after it is turned off. The employees were trained to
look to other procedures for shutoff than the emergency button.
All these factors persuade me that in fact there was no
"defective equipment", nor were there any unsafe conditions that
would have been alleviated by the presence of an emergency
shutoff button. Therefore, the cited standard was not violated
and alleged violation 1-2 must be dismissed.



Alleged violation 1-3



This allegation was withdrawn so must be dismissed.



Alleged violation 1-4



OAR 437-56-115(2) provides:



"Safety chains or cables shall have a tensile strength
equivalent to the gross weight of the towed vehicle and their
means of attachment to the towed and towing vehicle shall be of
sufficient strength to control the towed vehicle in event the
tow bar or coupling device fails".



There is no evidence regarding the tensile strength of the
chains connecting the truck and the chipper, so that aspect of
the alleged violation has not been proved . As far as the method
of attachment of the chains to the truck, namely, by open hooks
placed over a welded metal plate (Exhibit 5, page 10), there is
no specific evidence regarding the propensity of the chains to
detach or slide back and forth. However, the safety compliance
officer testified to the usual method he has observed wherein
the chain is brought back and hooked on itself. The method of
actual attachment looks to be potentially unstable (Exhibit 5,
page 10), and the compliance officer's suggested method of
attachment presents the appearance of greater stability, so
absent specific contrary evidence I am persuaded that the burden
has been carried to prove the violation relative to the method
of chains attachment.



The compliance officer assessed the probability of accident
resulting from this violation as low (Exhibit 3, page 5) in view
of the apparent adequacy of the tow bar, and that seems
reasonable. The compliance officer evaluated the potential
injury as serious if an accident occurred as a result of the
violation, and assuming a loose or unstable chipper such an
evaluation appears reasonable. OAR 437-01-145(5) provides for a
$150.00 penalty in the case of a violation that represents a low
probability of a serious injury, and that is the penalty that
was assessed (Exhibit 3, page 5). A 30 percent reduction was
apparently allowed pursuant to OAR 437-01-145(2)(b) for
consideration of the employer's past safety record, and there is
no evidence that suggests the reduction was improper. Therefore,
the penalty was correct as well as the alleged v i o 1 a t ion.



Alleged violation l-5



OAR 437-02-240 29 CFR 1910.219(e)(3)(i) provides:



"Vertical and inclined belts shall be enclosed by a guard
conforming to standards in paragraphs (m) and (o) of this
section."



The chipper's engine compartment included an exposed vertical
belt (Exhibit 5, page ll). The evidence discloses that some
equipment is placed next to the engine compartment (Exhibit 5,
page ll), so even though the normal operations and activities of
the employees are at right angles to the compartment and
separated from the engine compartment by the chipper frame, it
appears that at times an employee could reasonably be exposed to
the unguarded belt. A porous metal cover is apparently available
for the machine, which presumably would provide protection and
still allow the engine to operate without excessive heat.
Therefore, I conclude that the alleged violation has been proved.



The safety compliance officer concluded that the exposed belt
presented a medium probability of a serious injury. I cannot
quarrel with the assessment of a potentially serious injury
resulting from being caught in a drive belt. However,
considering the evidence that indicates virtually all employee
operations are at right angles to the exposed engine compartment
and outside the intervening frame of the chipper, I believe it
is reasonable to conclude that the probability of an accident
would be low. The proper fine for a low probability of a serious
injury is $150.00 according to OAR 437-01-145(5).   Given the 30
percent reduction allowed   by   the compliance officer (Exhibit
3, page 6), which is presumably still appropriate, the fine
should be $105.00.



Alleged violation 2-6



Section 6B3 of the code describing traffic controls for street
maintenance (exhibit 14) provides:



"Signs shall be placed in positions where they will convey their
messages most effectively and placement must therefore be
accommodated to highway design and alignment. Signs shall be so
placed that the driver will have adequate time for response."



The evidence is clear that there were no signs at all to the
south of the employer's work site (Mike Mitchell's testimony;
Exhibit 5 (pages 68)). Although the safety compliance officer
testified that cars coming from the south slowed down due to the
school crossing sign, I am not persuaded it was prudent to
assume all drivers would honor the school crossing sign in the
middle of the day when children were not normally present. Also,
a proper sign, such as the "utility work ahead" to the north of
the truck, would have provided a specific warning of what to
look for. At the very least it would have provided an important
backup to the school crossing sign, and thereby would have
offered the maximum amount of assurance that cars approaching
from the south would slow down and be alert. One sign to the
south, in conjunction with ideal driving conditions, was
sufficient to provide protection to the workers. I believe that
it is reasonable to have also placed at least one sign to the
north. With signs, a flagger and/or other traffic controls were
unnecessary, but one or the other was necessary, and neither
existed as far as north bound traffic. Therefore, the alleged
violation has been proved.



The safety compliance officer determined that considering the
weather conditions, the posted school crossing sign, and the
posted speed of 25 to 35 mph, the probability of an accident
resulting from the violation was low. I agree. A potentially
serious injury was foreseen from an accident, and since a
collision of some kind would be very likely I cannot disagree. A
low probability of a serious injury requires a $150.00 penalty
according to OAR 437-01-145(5), which is doubled pursuant to OAR
437-01-165(1) due to an earlier similar violation (Exhibit 3,
page 7). Therefore, the assessed penalty of $300.00 is
appropriate.



                    CONCLUSIONS OF LAW



Alleged violations l-l and 1-2 have not been proved, but alleged
violations 1-4, l-5 and 2-6 have been proved.



                         ORDER



IT IS HEREBY ORDERED AS TO CITATION M628101191 THAT:



(l) Alleged violation 1-1 is dismissed.



(2) Alleged violation 1-2 is dismissed.



(3) Alleged violation l-3 is dismissed.



(4) Alleged violation 1-4 and the proposed penalty are approved.



(5) Alleged violation 1-5 is approved, with a modified penalty
of $105.00.



(6) Alleged violation 2-6 and the proposed penalty are approved.



NOTICE TO ALL PARTIES: Any party to this proceeding who is
dissatisfied with this order may, not later than sixty (60) days
after the mailing of this order, petition for a judicial review
by the Court of Appeals as provided in ORS 183.480 to 183.500.



	Entered at Medford, Oregon on this day February 11, 1992



				WORKERS' COMPENSATION BOARD

				Philip A. Mongrain, Referee