BEFORE THE WORKERS' COMPENSATION BOARD OF



                          THE STATE OF OREGON



                           HEARINGS DIVISION



Oregon Occupational Safety &                                    
  Health Division			)  Docket No: SH91206

	Plaintiff,			)  Citation No:  M850209991

VISAR CONST CO INC

	Defendant			)  OPINION AND ORDER



Hearing was held in Medford, Oregon on December 23, l991 before
Philip A. Mongrain, Referee. Oregon Occupational Safety and
Health Division was represented by Assistant Attorney General
Norman F. Kelley. Raul Duggis represented the employer. The
hearing was reported by Business Support Services and was closed
at its conclusion.



                              ISSUES



Whether the employer violated safety standards as alleged by a
citation issued on June 18, l991.



                         FINDINGS OF FACT



On May 21, 1991 the employer was placing a culvert in an
excavation done by Otis Blankenship on property owned by Steve
Wilson (Exhibits 2, 3 (page 2), 4 (pages l, 2), 5). The
excavation was approximately 16 feet wide at the bottom, a
little wider at the top, and approximately 10 feet deep
(testimony of Charles McFarland; Exhibits 3, 4 (page l), 5). The
walls of the excavation were slightly sloped and no shoring was
present (testimony of Charles McFarland; Exhibits 3 (page l),
5). Two of the employer's employees were observed by Safety
Compliance Officer Charles McFarland working in the excavation
(testimony of Charles McFarland; Exhibits 2, 3, 5). Neither was
wearing a hard hat (Exhibits 3 (page 3), 5 (page l)). They had
been working on the project for at least two weeks (Exhibit 3,
page l).



Mr. McFarland has had some basic training in soil
classification, and although he performed no soil composition
tests he concluded on the basis of a "visual" analysis that the
soil composition of the excavation was "a little bit of
everything", that is sandstone, fill, clay and river run
(testimony of Charles McFarland). The soil in the section of the
excavation where the two employees were working included "fill"
that had been compacted and rolled (Charles McFarland's
testimony). The soil had been removed from the excavation with
difficulty (Mr. Sesar's testimony). The employees were working
within the 11 feet 4 inch border of a concrete form with
vertical rebar, as they had been instructed (Exhibits 3 (page
2), 5 (page l)). No sloughing of soil material was observed at
the bottom of the excavation (Charles McFarland's testimony).



Mr. McFarland concluded that the two employees working in the
excavation were not properly protected from the danger of a
cave-in by proper sloping or shoring, and that they were not
protected from head injuries by protective helmets (Exhibit 3).
Therefore, he cited the employer for failure to protect the
employees from cave-ins by an adequate protective system, and
for failure of the employees to wear protective helmets (Exhibit
l (pages 3, 4)). Based upon a conclusion by Mr. McFarland of a
moderate probability of a cave-in that would potentially cause
death, and allowing a 50 percent reduction because of the
employer's good safety record and because work was stopped until
the alleged violation was remedied, Mr. McFarland recommended
and the employer was assessed a fine of $750.00 for the
"protective system" violation (Charles McFarland's testimony;
Exhibits l (page 2), 3 (page l)). Based upon a conclusion of a
low probability of serious injury in the form of a potential
concussion or laceration, and allowing a 50 percent reduction
because of the employer's good safety record and because work
was stopped until the alleged violation was remedied, Mr.
McFarland recommended and the employer was assessed a fine of
$75.00 for the protective helmet violation (Charles McFarland's
testimony; Exhibits l (page 4), 3 (page 3)).



The employer, Mr. Sesar, testified that he has had many years
experience working with many different soils; that he observed
the excavation process and the soil was "hard" coming out; that
it was his opinion the excavation sides would "slough off rather
than cave-in and would present no danger to people working in
the middle of the trench.



                 ULTIMATE FINDINGS OF FACT



(l) There is no evidence that the excavation sloping was not
approved by a registered engineer.



(2) The failure of the employer's workers to wear hard hats
represented a low probability of an accident potentially
resulting in a serious injury.



                          OPINION



Alleged violation 1-1



(1) OAR 437-03-001 29 CFR 1926.652 (a)(1) provides:



(1) Each employee shall be protected from cave-ins by an
adequate protective system designed in accordance with paragraph
(b) or (c) of this section except when:



(i) Excavations are made entirely in stable rock: or



(ii) Excavations are less than 5 feet (1.52m) in depth. .



Paragraph (b) of the regulation provides:



". . .The slopes and configurations of sloping and benching
systems shall be selected and constructed by the employer or his
designee and shall be in accordance with the requirements of
paragraph (b)(l); or, in the alternative, paragraph (b)(2); or,
in the alternative, paragraph (b)(3), or in the alternative,
paragraph (b)(4), as follows:



The various options of paragraphs (b)(l), (b)(2), (b)(3), and
(b)(4) pertain to specified degrees of sloping from 34 to 53
degrees, sloping designs based on tabulated data, such as tables
and charts, which are approved by a registered professional
engineer, and to sloping and benching systems approved by a
registered professional engineer.



Paragraph (c) of the regulation pertains to:



". . .Designs of Support systems shield systems, and other
protective systems shall be selected and constructed by the
employer or his designee and shall be in accordance with the
requirements of



Oregon Occupational Safety and Health Division has the burden of
proving its allegations. It has alleged a violation by the
employer of regulations that require the employer or its
designee to select and construct protective systems in
accordance with certain sloping angles, or in accordance with
sloping or benching systems selected from tabulated data
approved by registered professional engineer, or in accordance
with a sloping o. benching system approved by a registered
professional engineer.



Photographs obtained by the safety compliance officer (Exhibit
5) clearly establish that 34 to 53 degrees of sloping was not
provided as required by the specific regulations. However, there
is no evidence that establishes the amount of sloping
represented in the photographs was not developed in accordance
with tabulated data approved by a registered engineer, or
approved by a registered engineer. Absent such evidence the
alleged violations have not been proved. Lest it be suggested
that this is unduly picky, I would hasten to point out that
there is evidence in the record that the soil was hard and no
sloughing of the walls was observed, so it is not outrageous to
suggest that the excavation may have been approved by a
professional engineer.



All the elements of the alleged violation not having been
proved, alleged violation 1-1 must be dismissed.



If I am determined on appeal to have been wrong in my conclusion
discussed above, and a violation has been proved, then I would
conclude that given the evidence regarding the hardness of the
soil and the absence of sloughing from the sides, the
probability of a cave-in would be low. It is reasonable to
conclude that if cave-in occurred a potential result would be
death. According OAR 437-01-145 (5) a low probability of an
accident potential resulting in death translates to a fine of
$1000. Presumably, the same factors described by Mr. McFarland
would apply to reduce the fine by 50 percent, so the fine would
be $500.



Alleged violation 1-2



OAR 437-03-001 29 CFR 1926.100 (a) provides:



"Employees working in areas where there is a possible danger of
head injury from impact, or from falling or flying objects, or
from electrical shock and burns, shall be protected by
protective helmets. n



Clearly, the evidence establishes that this standard was
violated, and the employer did not even contest it. Considering
the evidence of lack of sloughing material, it would appear that
Mr. McFarland was correct in concluding a low probability of an
accident. It an accident occurred, depending on the size of
falling material a concussion or laceration would be a potential
result, so Mr. McFarland was correct in evaluating the possible
injury as serious.   According to OAR 437-01-145(5) a low
probability of a serious injury translates to a $150 fine, which
would be reduced by 50 percent to $75 based on the factors
described by Mr. McFarland Accordingly, alleged violation 12 and
the assessed penalty must , affirmed.



                     CONCLUSION OF LAW



Alleged violation 1-1 has not been proved, but alleged violation
1-2 has been proved.



                             ORDER



IT IS HEREBY ORDERED as to Citation M850209991 that:

(l) Alleged violation 1-1 is dismissed.



(2) Alleged violation 1-2 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 March 5, 1992



				WORKERS' COMPENSATION BOARD

				Philip A. Mongrain,