BEFORE THE WORKERS' COMPENSATION BOARD OF



                          THE STATE OF OREGON



                           HEARINGS DIVISION



Oregon Occupational Safety &

     Health Division			)  Docket No: SH92075

					)  CITATION NO R078601292 

	Plaintiff			)

 		vs.			)

GREER BROS, INC. Defendant		)  OPINION AND ORDER



Hearing was convened and continued on August 10, 1992. The
plaintiff, Oregon Occupational Safety & Health Division,
appeared through Special Compliance Officer, James Ramsey, and
was represented by Assistant Attorney General, J. Kevin Shuba.
The defendant, Greer Bros, Inc., was present through corporate
officer, Michael Greer, and represented by Glenn Starks of
Associated General Contractors. Exhibits 1 through 9, and 11
through 12 were admitted into evidence. The proceedings were
recorded by Diane Bachmeier of Business Support Services.



The hearing reconvened on November 16, 1992 for the purpose of
taking further testimony. Additional exhibits, 13 through 15,
were admitted into evidence. These proceedings were recorded by
Marlene Cromwell of Business Support Services. The record closed
at the conclusion of the hearing on November 16, 1992.



                        ISSUE



The propriety of a December 16, 1991 safety citation and
assessment of multiple penalties (No. R078601292).



                   FINDINGS OF FACT



On November 6, 1991, Greer Bros, Inc., a landscaping and tree
service business, was trimming a large tree at a private
residence. The crew consisted of a foreman, Kevin Allen; and two
assistants, Dan Michaels and Hoyt Foster. In addition, for at
least part of the time, the Field Operations Manager, Dan
Greenlee, was there to observe.



In order to accomplish the job it was necessary to position a
truck with an insulated aerial device, namely a boom with
bucket, close to power lines. One of the lines was the service
drop which ran from a utility pole across the street to an
adjoining neighbor's house. There was approximately six feet of
sag in the service drop line. This particular line was an
insulated electrical conductor. Prior to commencing the job, and
immediately following the job, the service drop had been
inspected for damage by a Greer Bros. employee. No damage was
present. At the time of operations the service drop was
energized with 220 voltage. Power had not been removed. In the
course of trimming the tree the service drop line was bumped
about half way up the length of the boom an estimated three to
four times. The travel of the line caused by the bumping was in
inches.



While Allen was in the bucket, one of the assistants, was on the
ground operating the chipper. The other assistant, Hoyt Foster,
was operating a chain saw trimming limbs. Foster was not wearing
chaps or any other protective gear to protect his legs from a
potential injury with the chain saw. Both Greenlee and Allen
were in a position to observe Foster operating a chain saw
without chaps.



The Greer Bros. safety committee is composed of management. It
contains no worker representatives.



               CONCLUSIONS OF LAW AND OPINION



Failure to avoid electrical hazard



OAR 437-2-309(11)(b) provides that "ladders, platforms, or
aerial devices, including insulated aerial devices, shall not be
placed in a position where they could contact an electrical
conductor. Reliance shall not be placed on their dielectric
capabilities." The evidence shows that Greer Bros. in operating
a truck with an aerial device consisting of a boom and bucket
contacted an insulated electrical conductor otherwise known as a
"service drop" line. Accordingly, Greer Bros. was in violation
of the above cited rule. The compliance officer in assessing the
penalty rated the violation as serious with a probability factor
of "low" and a severity factor of "serious physical harm."



The evaluation of probability is to be determined pursuant to
OAR 437-01-135. The State takes the position that probability of
an injury occurring was "low." Whereas the employer asserted
that the probability was nonexistent, and thus, application of
the penalty matrix inappropriate.



The State argues that the boom hitting the service drop could
cause the line to break. The travel of the severed line would be
unpredictable. The State then suggested several different ways
by which the energized line could come in direct or indirect
contact with an employee providing a path for the flow of
electricity to a grounded object or the ground itself resulting
in an electrical shock to the employee. In contrast, the
employer disputes each and every allegation of the State.



It is highly unlikely the line would break. Foster testified
that prior to the job he had performed an evaluation of the job
to include inspection of the various lines and possible hazards.
He found the line to be in good condition. Second, the movement
against the line was described as slight. There is no persuasive
evidence that pressure on the line was sufficient to either
damage or break the line. Moreover, Foster testified that the
line was not taut but had approximately six feet of sag. Another
defense witness corroborated the fact that service lines were
typically strung with give in order to allow for movement of the
line. The presence of the slack further makes line breakage
remote. To conclude I find that it was not reasonable to assume
potential breakage of the service drop. More probable was the
scenario proposed by Foster, that the service drop would be torn
out of its anchor on the residence.



Even assuming the line would break or break free, it is not
probable that the line would go "wild." There was testimony to
the effect that the longer length would drop down and be drawn
back to its attachment point on the utility pole. A defense
witness testified that this would occur because the utility pole
attachment was higher than the anchored point on the residence.
In contrast, no persuasive evidence was offered by which the
line would become free moving and lashing out in unpredictable
ways. A reasonable interpretation would be that the line would
retract towards it point of attachment and fall to the ground
below it.



The evidence also indicates that the various scenarios
postulated by the state were remote. Based on the testimony of
the witnesses and the diagrams submitted into evidence it is
unclear that any employee was in a position to be injured.
Ramsey testified that a flailing line could have gotten into the
bucket where Allen was. However, considering that the point of
contact was the mid portion of the boom it is difficult to see
how this would occur. And although Ramsey testified that
interior parts of the bucket was metal, other witnesses
testified that the bucket was fully insulated. In any event,
there appears to be no dispute that the boom was insulated.
Given these circumstances it has not been sufficiently
demonstrated that Allen could have been injured.



According to the record Michaels was positioned by the chipper.
Based on the diagrams and testimony the location of the chipper
in the street was not in a position to be struck by a falling
line. It then follows that Michaels was not in danger of being
shocked. As to Foster, he was using the chain saw to trim limbs.
Although his position was not precisely determined it is
questionable whether or not he was in a position to be struck by
a line or touching an object that could have been struck by a
line. That leaves Greenlee who was sitting in his car observing
operations. No evidence places Greenlee in the path of a falling
line. See exs 32, 13.



Finally, and most damaging to the State's case, a  defense
witness, Bruce Poinsette, testified that regardless of the
probability of any of the above events occurring at the moment
of breakage, a fuse located in the transformer on the utility
pole would short circuit the system removing the power and thus
eliminating any potential for injury. This testimony was
unrebutted.



It is not necessary for the state to show that an injury
actually occurred or that an injury would have taken place.
Nonetheless there must be some showing that an injury could have
taken place in order to meet the minimum threshold of "low"
probability if a penalty is to be assessed. Further, it is not
necessary that a hazard be obvious and simple in its execution.
But yet, the hazard must at least evolve from a foreseeable and
logical sequence of events in order to assess liability.



To conclude, I am asked to assume a "low" probability from a
host of "what ifs" coming together at an opportune moment to
create an injury. The State's various scenarios attempting to
show how an injury could occur are not persuasive. I find that
based on the evidence presented, these scenarios amount to
speculation. Even assuming there exists a "low" probability,
sufficient doubt was cast on the State's case. The State, as the
plaintiff, had the burden of proof in this matter. I find the
state has failed to carry this burden by a preponderance of the
evidence. Accordingly, although there has been a violation of
the administrative rule, there is no basis for assessment of a
penalty amount pursuant to the matrix. See OAR 436-01-145.



Failure to wear chain saw chaps



OAR 437-2-307(5) provides all employees using chain saws shall
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. The
employee in question, Hoyt Foster, testified that he was not
wearing chaps while operating the chain saw. He offered no
reasonable explanation for his failure to do so.



The compliance officer rated the injury probability as medium
and the injury severity as serious. In addition he applied two
percentage reductions which reduced the final amount by 50
percent. The evidence supports the penalty assessment.



The employer argues that the penalty amount should be reduced
pointing to the fact that the exposure was minimal and further
that the failure to wear chaps was a momentary and unintentional
lapse on the part of the employee. However, even assuming this
to be the case, it does not serve a basis for reducing the
penalty. The duration of the hazard here was at a minimum of 2
to 5 minutes. That is enough to pose a hazard. Second the
motivational intent of the individual employee is irrelevant. In
any event, Foster testified he was experienced tree trimmer,
knew of the requirement, and had the safety gear in his vehicle.
Nonetheless, he made a conscious decision to work without the
benefit of available safety equipment. I find no mitigating
circumstances that would support reducing the assessed penalty.



Failure to ensure a safe work environment



OAR 437-40-030(2)(c) provides the employer shall take all
reasonable means to require employees to use all means and
methods, including but not limited to, ladders, scaffolds,
guardrails, machine guards, safety belts and life lines, that
are necessary to safely accomplish all work where employees are
exposed to a hazard. The State bases this violation on the
failure of the employer to enforce the safety rules regarding
the use of chaps and ensuring power shutdown.



It is undisputed that the lines were not deenergized. The state
takes the position that the employer had a duty to contact the
power company and have the lines deenergized before proceeding
with the job. In contrast the employer argues that power
shutdown was unnecessary. The compliance officer testified that
there existed "rules" in the electrical code, not the OSHA
regulations, requiring power shutdown. However, the State did
not identify the referenced rule either its source and title or
produce a copy of said rule. Nor was it demonstrated that power
shutdown was common knowledge for those "in the business."
Without the rule being identified, I can not make a
determination if the rule should have been applied in this case.
One being dependent on the other, it therefore follows, I can
not determine if there has been a failure on the part of the
employer to enforce this "rule."



Turning to the chain saw incident, the evidence shows there were
two potential supervisors on site; the foreman of the crew,
Kevin Allen, and the field operations manager, Dan Greenlee. By
virtue of their positions with Greer Bros. both men were
responsible for ensuring a safe work environment. The evidence
is persuasive that when the compliance officer arrived Greenlee
was already on site sitting in his car. The diagram and the
testimony shows that Greenlee was in a position to observe
Foster. The evidence further shows that Allen was likewise in a
position to observe Foster. Inasmuch as I find it probable that
either or both men had knowledge of Foster's failure to wear
chaps, there has been a failure of the employer to correct an
unsafe working condition. Accordingly, I find there was a
violation of the above cited rule. I further find the penalty
amount as calculated by the compliance officer is supported by
the evidence and the administrative rules. See exs 34, 5.



Failure to comply with safety committee requirements



OAR 437-40-046(1)(a) provides that safety committees, as
required by 437-40-045, shall be composed of an equal number of
management and worker representatives. The compliance officer
found that the safety committee was composed of the eight
department heads and no workers. The employer, through its
General Manager, Michael Greer, testified that all his employees
are members of the safety committee in that they are present
during the monthly safety meetings. The State counters that
participation by workers in a safety meeting does not amount to
a meaningful and substantial role as a committee member as
envisioned by the administrative rules. Review of the OSHA
regulations concerning safety committees indicates that worker
participation is a fundamental part of the administrative
scheme. As such participation by workers is not to be passive.
Accordingly, I find that mere attendance at a monthly safety
meeting can not be construed as active participation as a safety
committee member. The violation and penalty amount as determined
by the compliance officer shall not be disturbed.



                          ORDER



The December 16, 1991 safety citation and assessment of a
penalty (No. R07804092) is modified in part and affirmed in part.



Item 1-1 pertaining to standard violation OAR 437-2-309(11)(b)
is modified. Although the violation will stand, the penalty
amount of $75 is reduced to zero.



Item 1-2 pertaining to standard violation OAR 437-2-307(5) and
assessment of a penalty is affirmed in its entirety.



Item 2-3 pertaining to standard violation OAR 437-40-030(2)(c)
is modified. The violation is modified to eliminate "use of
aerial lift, while working around electrical conductors, not
assuring power shutdown" as a basis for the violation. The
penalty amount of $110 is affirmed.



Item 3-4 pertaining to standard violation OAR 437-40-046(1)(a)
and assessment of a penalty is affirmed in its entirety.        
                                         



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, on DEC 23 1992 



				WORKERS' COMPENSATION BOARD

				Abigail L. Herman

				Referee