BEFORE THE WORKERS' COMPENSATION BOARD OF



                          THE STATE OF OREGON



                           HEARINGS DIVISION



Oregon Occupational Safety &                                    
  Health Division			)  Docket No: SH91210

 	Plaintiff,			)  Citation No. L626011191 

ZIMBRICK LOGGING, INC.

	Defendant			)  OPINION AND ORDER



A hearing in the above captioned case was held in Salem, Oregon
on January 2, 1992 before the undersigned referee. The court
reporting service was Business Support Services. The Oregon
Occupational Safety and Health Division of the Department of
Insurance and Finance (OROSHA) was represented by its attorney,
J. Kevin Shuba. Zimbrick Logging, Inc. (employer) was
represented by Don Davis.



This is a contested case under the Oregon Safe Employment Act.
The employer has appealed Citation No. L626011191 issued by
OROSHA on June 6, 1991, which cited the employer for allegedly
violating several standards promulgated by the Director of the
Department of Insurance and Finance pursuant to the Director's
authority under the Oregon Safe Employment Act (ORS Chapter
654). At the hearing the employer advised that it was appealing
Items 1-1, 2-2, 3-3, and 3-4 in the citation.



Following the hearing the record was kept open for the
submission of written arguments. The last of said arguments was
received on March 4, 1992 and the record was closed at that time.



                      FINDINGS OF FACT



The employer is a contract logging company based in Willamina.
On May 15, 1991 Bruce Lawson, a Safety Compliance Officer with
OROSHA, inspected the employer's logging site in Philomath.
Lawson has been employed by OROSHA for about 2 years. He had
done CAT logging work prior to his employment with OROSHA.
Accompanying Lawson on his inspection was another OROSHA
employee, Mike Patterson, who has been employed with OROSHA for
about a year. Patterson previously did logging work for about 13
years.



At the time Lawson inspected the employer's logging site on May
15, 1991 he found the following conditions/practices:



one of the employer's workers, Bill Barnes, was not wearing
protective chaps over his trousers while engaged in
limbing/bucking with a chain saw. He was also not wearing a hard
hat at that time. Another employee was not wearing a hard hat
while unhooking a choker.



a first aid kit and blanket were not present at the work site.



there was a buildup of hydraulic fluid and oil on the housing
deck below the rotating superstructure of a loader shovel. This
fluid buildup was on a surface on which the equipment operator
had to step to get into the cab or get down to the ground from
the cab. There was no nonslip material attached to or on the
surface where the fluid/oil buildup was present.



Based upon the information obtained by Lawson during his May 15,
1991 inspection, OROSHA issued a citation to the employer on
June 6, 1991, citing it for allegedly violating OAR
437-80-045(8), 437-80-045(2), 437-80-050(2), 437-80-220(8),
437-80-220(13)(a), and 437-155-020(1).



Per the authority of Roy Zimbrick, the owner of Zimbrick
Logging, Barnes was in charge of the employer's operation on May
15, 1991. Barnes knew and had the authority to enforce the
safety rules and the employer's policies.



The failure of Barnes to wear protective chaps when he was using
a power chain saw could have resulted in a deep cut in the leg
involving significant bleeding and requiring extensive suturing.



The failure of the two employees to wear a hard hat exposed them
to a potential head injury from a swinging object. The
probability (of an accident/injury) rating regarding their
failure to wear a hard hat was low. Their failure to wear a hard
hat could have caused a significant injury to the head  a
concussion or fracture.



The employer had been cited for a violation of OAR 437-80-045(2)
(requiring the use of a hard hat) on two prior occasions in 1989
and said citations had become final at the time of the May 1991
inspection.



The absence of a first aid kit, including a blanket, at the
employer's work site could have caused a significant injury in
the sense that what initially might have been a minor injury
could have become one with significant consequences because of
the lack of a first aid kit and blanket.



At the time of the May 1991 inspection the employer was not
providing/maintaining a safe means of access/egress with respect
to its loader shovel. Such condition could have caused a
significant injury.



                   OPINION AND CONCLUSIONS



In its closing argument the employer alleged several "due
process" violations on the part of OROSHA and contended that
this should result in the dismissal of the citation. First, the
employer contends that OROSHA violated OAR 437-01-255, which
deals with informal conferences. The employer contends that its
employees were not notified of their right to attend an informal
conference involving the employer and OROSHA. However, the
employer has not shown how OROSHA's noncompliance, if any, with
the cited rule has anything to do with the question of whether
or not it violated the various standards identified in the
citation. The employer has not pointed to any authority that
requires the dismissal of a citation where OROSHA has failed to
comply in some fashion with OAR 437-01-255.



The employer contends that OROSHA violated OAR 437-01-205(3),
which provides that each employee representative shall be sent a
copy of all citations and notices of penalties issued by OROSHA.
The employer has not shown how OROSHA's noncompliance, if any,
with said rule prejudiced the employer's rights regarding the
citation herein. The employer has pointed to no authority which
would support the dismissal of a citation on this ground.



The employer contends that OROSHA violated OAR 438-85-305(1) and
438-85-111(3), which address OROSHA's obligation to refer a
contested case to the Hearings Division. The employer argues
that because of the passage of a long period of time between the
inspection and the hearing in this matter, it was unable to
locate witnesses for its defense. However, the employer has not
shown by evidence  testimony or exhibits  how any delay on
OROSHA's part in getting the case to the Hearings Division
prevented the employer from obtaining and producing testimony
and/or documentary evidence that would have been pertinent to
the issues raised by the employer in this matter. The employer
has not cited any authority that supports dismissal of a
citation on the basis of any violation by OROSHA of OAR
438-85-111(3) and OAR 438-85-305(1).



In sum, I am not persuaded that any of the "due process"
arguments advanced by the employer support the dismissal of the
citation in this case.



Turning to the merits, the first Item in the citation that will
be addressed is Item 1-1. This alleges a violation of OAR
437-80-045(8), which provides as follows:



"Chasers, knot bumpers and other employes who at any time
operate power chain saws shall, when operating power chain saws
on the landing, wear flexible ballistic nylon pads or other
equivalent protection sewn or otherwise fastened to the
trousers, which will protect the legs from the thigh to below
the knee from injury due to inadvertent and accidental contact
with a moving power saw chain."



Bruce Lawson, an OROSHA safety compliance officer, and Mike
Patterson, another OROSHA employee who accompanied Lawson on the
inspection on May 15, 1991, both credibly testified that they
observed one of the employer's workers, Bill Barnes, operating a
chain saw without wearing the type of leg protection referenced
in the standard (see also Ex. 3, p. 1, Ex. 4, p. 1, and Ex. 7,
p. 1). The employer has offered no contrary evidence. I find
that at that time of the inspection on May 15, 1991 the employer
violated OAR 437-80-045(8).



The employer contends that the violation in Item 1-1 should be
classified as general, not serious. A serious violation is one
in which there is a substantial probability that death or
serious physical harm could result from a condition or practice
at the place of employment, unless the employer did not, and
could not with reasonable diligence, know of the presence of the
violation. See OAR 437-01-015(55)(a)(A). "Serious physical harm"
includes such things as amputations and deep cuts involving
significant bleeding and which require extensive suturing. See
OAR 437-01-015(50)(a). Lawson credibly testified that the
failure to wear the protection required by the standard could
result in a deep cut in the leg. The standard itself specifies
that the required protective clothing is to protect the legs
from injury due to inadvertent and accidental contact with a
moving Power saw chain. Further, this is not a case where the
employer did not, and could not with reasonable diligence, know
of the presence of the violation. The person Lawson identified
as not wearing the protective clothing was Bill Barnes (see Ex.
2, p. 1, Ex. 3, p. 1, Ex. 4, p. 1, and Ex. 7, p. 1). According
to the testimony of Roy Zimbrick, the owner of Zimbrick Logging,
Barnes was in charge of the employer's operation on the date of
the inspection. Zimbrick testified that Barnes knows and has the
authority to enforce the safety rules and the employer's
policies.



Based upon the testimony of Lawson and Zimbrick, and the
applicable law, I conclude that the violation in Item 1-1 is
properly classified as serious.



The penalty assessed for the violation in Item 11 was $75. At
the hearing the employer contested the penalty amount. However,
the basis for the employer's challenge to the penalty amount is
apparently that the classification for the violation should be
general, not serious, since $75 is the lowest possible penalty
for a serious violation. See OAR 437-01-145. I have already
determined that the violation is properly classified as serious.
Thus, there is no basis for reducing the penalty amount.



In sum, based upon the evidence presented and the applicable
law, I conclude that Item 11 in the citation must be affirmed.



Item 2-2 in the citation alleges a violation of OAR
437-80-045(2), which provides as follows:



"All employes engaged in or around logging operations shall wear
approved hard hats, unless they are in or under vehicle cabs or
canopies."



Based upon the credible testimony of Lawson and his notes and
photographs from his inspection (see Ex. 3, pp. 23, Ex. 4, p. 1,
and Ex. 7, pp. 12), I find that at the time of the inspection
two employees of the employer were not wearing hard hats and
were not in or under a vehicle cab or canopy. One such employee
was unhooking a choker. The other, Barnes, was limbing/bucking.
As noted earlier, Barnes was in charge of the employer's
operation that day.



At the hearing Zimbrick testified, with reference to Exhibit 7,
page 2 (a photograph of the work site), that there were no
overhead hazards at the work site and that he therefore did not
feel that the workers who were not wearing hard hats were
exposed to any hazard. However, Zimbrick also testified that he
did not know/could not explain why the workers were not wearing
hard hats on the day of the inspection. This implies that
Zimbrick thinks that they should have been wearing hard hats; it
thus conflicts with his assertion that the workers were not
exposed to any hazard. In his testimony Lawson agreed that
Exhibit 7, page 2 shows no overhead exposure to a hazard. But
Lawson also testified that the hard hat requirement in the
standard is to protect against a falling or a swinging object.
Patterson, who prior to his employment with OROSHA had 13 years
of experience in logging work, testified that a hard hat can
protect the head with regard to a blow from a limb trapped in
logs that are bunched together  Patterson stated that when
chokers are removed the logs can shift and a limb can pop out.



I am persuaded by the evidence in the record that there was a
potential hazard, albeit not overhead, to which the employer's
workers who were not wearing hard hats were exposed. In any
event, OAR 437-80-045(2) does not contain any
limitations/exceptions regarding the requirement of wearing a
hard hat except where the employee is in or under a vehicle cab
or canopy. Based upon the evidence presented and the applicable
law, I conclude that OROSHA has established the violation set
forth in Item 2-2.



At the hearing the employer advised that it was not contesting
the classification (repeat) of the violation in Item 2-2. The
employer indicated that it was contesting the penalty amount.
The penalty is based upon the probability (of an accident) and
the severity (regarding the degree of injury or illness which is
reasonably predictable) rating. See OAR 437-01-135, 437-01-140,
and 437-01-145. Lawson's inspection notes indicate that he gave
a probability rating of low for the violation in Item 22 (see
Ex. 3, pp. 23). This is the lowest rating allowed per OAR
437-01-135(3). Regarding the severity rating, Lawson's notes
indicate that he assigned a rating of moderate (Ex. 3, pp. 23).
Per OAR 437-01-140(1)(b), a "moderate" rating is for conditions
that could cause significant injury. Lawson's notes show that he
felt that the type of injury that the failure to wear a hard hat
could cause could be a concussion or a fracture (Ex. 3, pp. 23).
This certainly seems reasonable, and there is no contrary
evidence in the record. Such an injury is properly characterized
as significant, not minor. See OAR 437-01-140(1)(a) and (b). Per
OAR 437-01-145(Table 1), the penalty where the probability
rating is low and the severity rating is moderate is $75. The
evidence in the record shows that the violation in Item 2-2 is a
double repeat violation (see Ex. 1, p. 4, Ex. 5, and Ex. 6).



Thus, per OAR 437-01-165(1), the $75 amount is increased 100
percent  that is, to $150. Further, since there was a double
violation of OAR 437-80-045(2)  that is, two workers not wearing
hard hats  the penalties for each subpart of the grouped
violations are added, making a total penalty amount of $300. See
OAR 437-01-015(32) and 437-01-145(4).



In sum, based upon the evidence presented and the applicable
law, I conclude that Item 2-2 must be affirmed.



Item 3-3 in the citation alleges a violation of OAR
437-80-050(2), which requires that certain minimum first aid
supplies must be in proximity to all employees. Lawson credibly
testified that there was no first aid kit at the work site at
the time of the inspection. At the hearing the parties agreed
that there is no dispute regarding the occurrence of a violation
or regarding the probability factor being medium per OAR
437-01-135(3). The only dispute is with regard to the severity
rating. OROSHA contends that the rating should be moderate; the
employer contends that the rating should be low. Per OAR
437-01-140(1), a severity rating of low is for conditions that
could cause a minor injury, and a rating of moderate is for
conditions that could cause a significant injury. Lawson
testified that he assigned a moderate rating because of the
types of injuries that could occur at the logging site and which
could be exacerbated by the lack of a first aid kit. No contrary
evidence was presented by the employer. In its brief the
employer contends that there were blankets at the site. However,
the employer has presented no evidence to support this
contention, and Lawson's notes indicate that no blankets were
found at the work site (see Ex. 4, p. 1). It certainly seems
reasonable that the lack of a first aid kit could turn what
might begin as a minor injury into an injury with significant
residuals. I find that the evidence in the record supports a
severity rating of moderate. Per OAR 437-01-145, the appropriate
penalty where the probability rating is medium and the severity
rating is moderate is $300. OROSHA reduced the penalty to $150
per OAR 437-01-145(2) (see Ex. 1, p. 4, and Ex. 3, p. 4). Based
upon the evidence presented and the applicable law, I conclude
that Item 33 must be affirmed.



Item 3-4 in the citation alleges a violation of OAR
437-80-220(8), which provides as follows:



"A safe and adequate means of access and egress to all parts of
logging machines where employes must go shall be provided and
maintained in a safe condition."



Based upon Lawson's credible testimony and his inspection notes
and photographs (see Ex. 3, p. 5, Ex. 4, p. 1, and Ex. 7, p. 3),
I find that at the time of the inspection there was a buildup of
hydraulic fluid and oil on the housing deck below the rotating
superstructure of the loader shovel. This buildup of fluid/oil
was on a surface on which the equipment operator had to step in
order to get into the cab of the equipment or to get down to the
ground from the cab. There was no nonslip material  such as a
metal mesh covering  in the area of the oil buildup. In its
closing brief the employer argues that dirt and/or sawdust had
been applied to the surface in question and that there was no
slippery condition. However, the evidence, as opposed to the
employer's argument, does not counter the credible testimony of
Lawson and his inspection notes regarding the buildup of
oil/hydraulic fluid and the absence of any nonslip material to
eliminate/minimize the hazard. I find from the evidence in the
record that a safe means of access and egress regarding the
loader shovel was not provided/maintained by the employer at the
time of the inspection. I conclude that OROSHA has established a
violation of OAR 437-80-220(8).



At the hearing the parties indicated that there was no dispute
about the classification or correction date regarding Item 3-4.
The employer indicated that it was disputing the penalty amount.
Lawson assigned a probability rating of low (Ex. 3, p. 5). This
is the lowest rating allowed per OAR 437-01-135(3). He gave a
severity rating of moderate (Ex. 3, p. 5). He testified that he
assigned a rating of moderate because he felt that if a worker
fell because of the condition it would not result in serious
physical harm (the next level of severity above moderate per OAR
437-01-140). There is no evidence in the record that the
condition that is the subject of Item 3-4 could cause no more
than a minor injury  in which case the severity rating would be
low per OAR 437-01-140. Based upon the evidence presented, I
find that the correct severity rating is moderate. Per OAR
437-01-145 the penalty amount is $75 where the probability
rating is low and the severity rating is moderate. Per OAR
437-01-145(2)(b), the $75 penalty amount was reduced by OROSHA
to $50.



In sum, based upon the evidence presented and the applicable
law, I conclude that Item 3-4 in the citation must be affirmed.



                         ORDER



IT IS THEREFORE ORDERED that Citation No. L626011191 issued by
OROSHA to Zimbrick Logging on June 6, 1991 is affirmed.



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 is prescribed by ORS 183.480 and ORS
183.482.



	ENTERED at Salem, Oregon 03 APRIL 1992 



				WORKERS' COMPENSATION BOARD

				By John P. McCullough, Referee