BEFORE THE WORKERS' COMPENSATION BOARD OF



                          THE STATE OF OREGON



                           HEARINGS DIVISION



Oregon Occupational Safety &                                    
  Health Division			)  Docket No: SH91173 

	Plaintiff			)

	vs.				)  CITATION NO. M850110791

CRYSTAL SPRINGS PACKING CO., Defendant	)  OPINION AND ORDER



Pursuant to notice, the above matter was heard in Medford,
Oregon, on October 31, 1991, before Referee Black. Plaintiff was
represented by its attorney, Armonica Gilford, an Assistant
Attorney General with the Oregon Department of Justice, with
Charles McFarland of OROSHA. The employer/defendant was
represented by its attorney, Daniel Thorndike, with Tom Spatz of
the employer. The proceedings were recorded by JoeAnn Johnson
for Business Support Services. The record closed at hearing.



                            ISSUES



Is the employer subject to various administrative penalties
pursuant to a Citation and Notice of Penalty issued July 8,
1991, pursuant to ORS chapter 654?



                        FINDINGS OF FACT



The employer has appealed a citation imposing penalties in the
aggregate amount of $295 for four different citations of the
Oregon Safety Code. These resulted from the observation and
subsequent inspection of Charles McFarland, a Safety Compliance
Officer with OROSHA on July 13 and 14, 1991, at the employer's
facility in downtown Medford.



On July 13, McFarland was enroute to another location in his
motor vehicle (the OROSHA office is located in the immediate
neighborhood of the Crystal Springs plant) when he noticed an
individual standing in the street a block or so ahead with a
broom. McFarland then observed a small quantity of debris
falling into the area of a large trash container alongside the
employer's building. (SEE Ex. 610).

 

The compliance officer approached and identified himself. The
individual in the street turned out to be the employer's
maintenance foreman, Jerry Griffin. Mr. Griffin was engaged in
supervising two additional employees located on the roof who
were engaged in removing old roofing material with shovels. The
debris from this process was dropped from time to time by means
of a plywood platform set up at the outer edge of the building.
It was about 40 feet to ground level from this edge. There had
been no attempt to form a chute or provide additional guidance
for the materials sent over the side. The employer was aware
that the city street below (one of four bounding the building)
was temporarily closed due to city utility work in the
neighborhood; Griffin's principal function at the street level
was to watch for passersby and incidentally to keep roofing
debris from getting scattered about.



Griffin was not wearing a hard hat. Although the likelihood of
actual injury in the circumstances was low, serious physical
injury could result from being struck in the head with roofing
debris" At hearing he attempted to excuse this oversight by
indicating that he had been standing in the protection of an
adjacent tree when substantial amounts of debris were being
dropped.



McFarland was eventually told to get a warrant if he wished to
undertake further inspection of the premises. He did so,
returning the following day, when additional problems were
identified: a defective power cord attached to a grinder set up
on the roof and used for sharpening the shovels used to rip up
roofing; and a lack of appropriate footwear for the two workers
engaged in removal of the materials.



The outside shell of the grinder cord, a standard heavy duty
equipment cord, was separated at the plug end from the housing
of the plug itself. The plug was missing the cap or shield that
is set inside the face of the plug and around the prongs. Thus,
the actual wires within the cord and their connection to the
prongs were exposed to any stress on the cord from sudden jerks
(as when workers trip or materials get tangled in the cord) and
to the possibility of fingers or materials coming in direct
contact with exposed wires at the plug. This general (that is,
with potential for less that serious injury) violation was rated
as creating a medium probability of an accidental injury.
Although OROSHA assessed the probability of occurrence factor
here as medium, I rate it as low. There is clear potential here
for equipment failure. I do not see it as likely (OAR
437-01-135(3)(b)) that injury would occur from this condition of
the cord.



Both roofing workers were wearing light weight tennis/running
type shoes. Random exposed nails in the roofing materials,
varying in length from approximately one-half to three-quarters
of an inch, were capable of penetrating this footwear, if not
through the soles then through the sides, particularly around
the ball of the foot. This does not, of course, pose a risk of
serious injury. The probability of occurrence is rated as low.



Following McFarland's appearance on July 13, no modifications of
the chute/drop arrangements were effected. The employer did not
use it thereafter and began bagging loose debris. After the
compliance officer's observation of the bad cord on the 14th,
the cord was cut off and the unit removed form service. No
attempt was made to replace the shoes of the workers on the roof
at the time of inspection. The employer had a lost time
incidence in 1990 of zero and had not been cited for safety
violations of any sort.



                   FINDINGS OF ULTIMATE FACT



At the time of observance/inspection, the employer maintained
conditions posing risk of serious physical injury with respect
to the absence of a hard hat and the design of the arrangements
for dumping debris from the roof.



Lack of appropriate shoes and a defective power cord posed low
risks of non-serious physical injury to workers.



                 CONCLUSIONS OF LAW AND REASONING



First, I note that the people in question were supervised or
were themselves supervisors. This is not an employee misconduct
case that excuses the employer based on a lack of scienter. See
Sartin v. APD, 32 Or App 109 (1978).



Head Protection



OAR 437-50-020(1) (29 CFR 1926(a)) states in part: "Employees
working in areas where there is possible danger of head injury
from impact, or from falling or flying objects *"shall be
protected by protective helmets."



A Crystal Packing employee was "in" an "area" where there was a
"possible" risk of head injury. What one encounters here is a
situation which, as the employer correctly argues, was under
control that is, the worker who was not wearing head protection
was aware of potential hazards and if one may read between the
lines a bit taking prudent cautionary measures when heavy debris
dumping was underway. This argument assumes complete control by
Griffin of the people on the roof, but as a practical matter, it
is reasonable. The problem is that it does not answer the safety
code question. Was there a risk of "possible" head injury? Yes,
there was. Does the head protection rule require a hard hat in
such situations? Yes, it does. I have impliedly disagreed in my
findings with the employer's contention, based on the definition
at OAR 437-01-005(55)(a)(A), that this was not a serious
violation. This rule speaks of substantial probability of
serious injury and thus mixes up the analysis of occurrence
probability and that of severity of injury. The text of the head
protection rule must govern. What the employer's case here does
support is the assessment of a probability of occurrence rating
of low. It does not, however, alter the fact that such an event
would probably involve serious, rather than merely insignificant
or minor, physical harm to the worker. (This is further
discussed under penalties, infra) Debris Chute



The employer does not dispute that its setup for dumping the
roofing debris was inadequate. An enclosed chute is required for
drops in excess of 20 feet. 29 CFR 1926.252(a) (codified in the
rules as OAR 437-03-1926.252(a)). The further question is that
of probability of accident, which was rated as low, and of
severity, which was rated as serious, but not fatal. I have no
reason to quarrel with this assessment. As in item 1-1,
uncontrolled roofing debris falling 40 feet, even to a
designated area, poses risk of serious bodily injury.



Footwear, Electrical Cord



There is clear evidence of the presence of nails in the roofing
debris. Lengths were not measured, and there is no claim that
longer structural type nails were present. Nonetheless, the
referee is cognizant of the minimal protection against such
hazards afforded by ordinary running/exercise/deck type shoes,
particularly around the sides. A nail wound in the side of the
foot is nearly as unpleasant as one in the bottom. This is, of
course, a general violation with a low probability of occurrence
and one posing only the risk of minor injury.



Penalties



OAR 437-01-145(2) permits certain penalty adjustments. The
referee and of course OROSHA are strictly bound by the
applicable administrative rules addressing penalties and penalty
reductions. APD v,. Asana, 110 Or App 103 (1991).



I conclude that the employer is entitled to some penalty
reductions. OROSHA calculated a $75 penalty for the hard hat
violation upon finding a low probability of occurrence, and a
severity equal to that for serious physical injury. Under the
matrix at OAR 437-01-145, this resulted in a $150 penalty.
Because of the employer's correction of this violation at the
time (OAR 437-01-145(2)(a)) and because the employer's lost work
day incidence (O) was below the statewide average (OAR
437-010-145(2)(b)), 20% and 30% reductions were applied to the
penalty resulting in a final amount of $75.



The debris chute violation resulted in a penalty of $150 upon
the same probability and severity factors. It was not torn down
at the time of inspection and, therefore, only a 30% reduction
due to the lost work day incidence may be effected, reducing the
penalty to $100. The citation, apparently erroneously, reduced
this penalty to only $120.



The safety inspector testified that he did not observe the
employer to disable the grinder cord at the time. The employer's
witness testified, however, that the cord was cut off at the
time of the inspection, and this testimony is more precise and
uncontradicted. With a low probability of occurrence and a
potential for a moderately severe injury, a $75 penalty is
warranted under the matrix. When reduced for both lost work day
and resistance reasons, it drops below $50 and is suspended. See
OAR 437-01-145(3).



The employer urged that there is a failure of proof with respect
to any likelihood of injury from the shoes worn by the workers
on the roof. I disagree, partly based on the sort of personal
and general experience with footwear that I believe is subject
to official notice. Running type and leisure type canvas
footwear does not protect the feet against nails of any sort on
the sides. Some running shoes probably would protect the feet
from half-inch punctures but not from three-quarter-inch
punctures. Lighter types of leisure shoes would be of no help at
all. There is credible evidence before the referee that half and
three-quarter-inch nails were present in numbers on the work
site and distributed about within materials in such a way as the
workers would frequently be about, and occasionally in contact
with them. The penalty under the matrix, as with the cord, is
initially $75. It is subject only to a 30X reduction due to the
employer's experience rating: the $50 penalty is appropriate.



                             ORDER



THEREFORE, the Citation and Notice of Penalty issued July 8,
1991, is modified in that the penalties are reduced in the
aggregate to $225. The document is otherwise affirmed as issued.



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 hereon. The
procedure for such judicial review i5 prescribed by ORS 183.480
and ORS 183.482.



	Entered at Eugene, Oregon JAN O 7 1992 



				WORKERS' COMPENSATION BOARD

				By Bruce K. Black, Referee