BEFORE THE WORKERS' COMPENSATION BOARD OF



                          THE STATE OF OREGON



                           HEARINGS DIVISION



Oregon Occupational Safety &                                    
  Health Division			)  Docket No: SH91246

	Plaintiff			)

					)  Citation No: M44180759

	Defendant			)

NGU LOGGING INC				)  OPINION AND ORDER



Hearing convened and closed on January 16, 1992 in Coos Bay,
Oregon. Oregon Occupational Safety and Health Division (OROSHA)
was represented by attorney Armonica Gilford. The employer, NGU
Logging, was represented by Frank Sherman, a partner in the
company. Business Support Services recorded the proceedings.



                          ISSUES



The employer appeals OR OSHA's citation dated July 29, 1991. The
citation contains two items, 1-1 and 2-2. OROSHA has withdrawn
item 2-2. Therefore, the sole issue is whether the employer
committed the violation alleged in item 1-1 and, if so, whether
the penalty is reasonable.



                     FINDINGS OF FACT



On July 2, 1991, the employer's logging crew was operating at a
logging site identified as the China Creek Timber Sale. The site
was located a few miles east of Highway 101 about halfway
between Gold Beach and Brookings, Oregon.



On that day, Mark Hurliman, a safety compliance officer (SCO)
for OR OSHA noticed the logging site from Highway 101 and went
to the site where he conducted a routine inspection.



The SCO spoke to the siderod (i.e. foreman), of the crew, Mike
Phillips. The SCO noticed that the chaser on the landing was
operating a chain saw without external leg protectors (chaps).
Phillips told the SCO that the regular chaser was gone that day
and that Phillips and the hook tender, Clifford Shaffer, were
sharing the chasing duties. Shaffer commented that the regular
chaser had the chaps with him in his vehicle.



Leg protectors can also be worn inside a pair of pants. These
protectors are easily visible on a hot day such as this one.
Neither Shaffer nor Phillips was wearing leg protectors inside
his pants.



There was a low probability of a serious accident as a result of
the failure to wear leg protectors while operating a chain saw
on the landing.



                 CONCLUSIONS OF LAW AND OPINION



OAR 437-80-045(8) requires that chasers who at any time operate
power chain saws shall wear leg protectors while operating chain
saws. The two men who were working as chasers on July 2, 1991
were not wearing leg protectors.



I accept the SCO's testimony on this point because he is an
experienced logger and logging safety inspector. His observation
is sufficient to convince me that it is probable that neither
Shaffer nor Phillips was wearing any type of leg protection. The
employer offered no evidence to rebut this fact as to Shaffer.



The employer did offer an unsworn statement from someone
identified as Clifford Shaffer that he had been wearing safety
chaps on the day in question. This unsworn hearsay statement is
not sufficient to cause me to question the SCO's observation.



I also accept the SCO's opinion that there is only a low
probability of an accident due to this violation. Both Shaffer
and Phillips are in responsible positions on the logging crew.
It is reasonable to infer that both know how to operate a chain
saw so that it is unlikely that it will kick back. However, I
also agree with the SCO that if such an accident happened it
would be likely to cause serious injury. A chain saw kicking
back could easily cause serious cuts on a worker's leg.



                         ORDER



Item 1-1 of the citation is upheld in its entirety. Item 2-2 is
withdrawn.



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 January 21, 1992 



				WORKERS' COMPENSATION

				By Raymond W. Myers Referee