BEFORE THE WORKERS' COMPENSATION BOARD OF



                          THE STATE OF OREGON



                           HEARINGS DIVISION



Oregon Occupational Safety &                                    
  Health Division			)  Docket No: SH-91304

	Plaintiff,			)  Citation No. L421802591

	vs.				)

MASSIH CONSTRUCTION			)

	Defendant			)  OPINION AND ORDER



A hearing was held on April 15, 1993 in Portland, Oregon.
Plaintiff was represented by Thomas W. Cowan. Defendant did not
appear. The record was closed on April 23, 1993 upon receipt of
OSHD's supplemental brief.



                        ISSUE



Defendant challenges the violations alleged in Citation
L421802591.



                      FINDINGS OF FACT



On June 19, 1991 Abbas Massih owned the Barbur Square buildings
at 912l SW Barbur Boulevard. This consisted of two adjacent
buildings. On June 19, 1991 construction work was being done at
this location, including installation of sewer lines from each
building to a main line that then went to the street. The back
hoe and plumbing work were being done by different contractors:
Loren Obrist and Rayborn's Plumbing, respectively. Massih's
son-in-law was on the job. Safety compliance officer Lee saw him
carrying barricades and working in and about the project.
Following a June 19, 1991 inspection, OSHD issued a citation to
Abbas Massih dba Charles Massih Construction Co, Exhibit 5 is
nine pages of photographs showing the sewer work in process,
including trenches, a pit, location and type of spoils, and the
general working environment.



As noted, the main line ran between the two buildings. This
trench was about two feet wide. The only convenient way to go
between the two buildings was to jump over the trench. Negative
21 Exhibit 5, page 8, and negative 22 Exhibit 5, page 9 show
that a path had been worn where the workers traveled between the
two buildings and jumped over the trench in performance of the
work.



Lee interviewed Massih on June l9, 1991 and was informed that no
employee had knowledge of first aid training.



Massih's son-in-law was on the work site on June 19, 1991
performing work. See Exhibit 5, page 6, negatives 16 and 17
where he is shown carrying barricades. I infer and find that he
was an employee of Abbas Massih.



                    OPINION AND CONCLUSION



Citation 1-1



OAR 436-40-030(2)(c) provides that:



"(2) The employer shall take all reasonable means to require
employees:



(c) To use all means and methods, including but not limited to,
ladders, scaffolds, guardrails, machine guards, safety belts and
lifelines, that are necessary to safely accomplish all work
where employees are exposed to a hazard: and. . . ."



Lee observed people working on the site jumping over the trench.
For example, he saw an electrician jump over it to plug in a
cord. A walkway could have been provided at convenient spots to
make a safer path and eliminate the possibility of slipping or
over-stretching and suffering an injury. Massih's son-in-law was
exposed to this danger.



OAR 436-40-030(2)(c) requires that means and methods be taken to
protect employees from the harmful exposure that existed here.
This was a dangerous situation that reasonably could have been
eliminated. I find that OAR 437-40-030(2)(c) was violated.



I further find that under OAR 436-01-135 and 140 the probability
of injury was medium and the severity of injury was death,
should a worker have fallen into the unshorn trench and be
subjected to a cave-in. The penalty was correctly determined.



Citation 1-2



OAR 437-03-001, 29CFR 1926.50(b) provides:



"Provisions shall be made prior to commencement of the project
for prompt medical attention in case of serious injury."



There was no provision for providing first aid. As is evident
from the photographs, potential for injury existed for anyone
working in and around the work site on June 19, 1991. Should
prompt medical attention have been necessary, no plans or
provisions were in place. The charged rule was violated.



The penalty assessment is based upon the guidelines in OAR
437-01-135 and 140 and is supported by the evidence.



                           ORDER



IT IS HEREBY ORDERED that Citation L421802591 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 to the State Court Administrator, Record
Section, 1163 State Street, 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 Portland, Oregon on May 11, 1993



				WORKERS' COMPENSATION BOARD 

				By ALBERT L. MENASHE, Referee