BEFORE THE WORKERS' COMPENSATION BOARD OF



                          THE STATE OF OREGON



                           HEARINGS DIVISION



Oregon Occupational Safety &  

    Health Division		)   Docket No: SH92309

	Plaintiff,		)   AMENDED CITATION NO. B733206592

 		v.		)

JOHN ARNOLD CO,			)

	Defendant.		)  OPINION AND ORDER



Hearing convened and closed March 9, 1993 in Portland, Oregon
before Gary A. Thye, Referee. Plaintiff was represented by
Norman Kelley. Defendant was represented by its owner, John
Arnold. The proceedings were recorded by Harris Reporting.
Exhibits 1 through 9 were received in evidence.



                         PRELIMINARY MATTER



The initial Citation and Notice of Penalty herein was issued
June 8, 1992. The citation was amended on June 19, 1992 to
reverse the order of the listed violations (see exhibit 4 page
3). However, Item Number 1-2 on the original citation became
Item Number 22 on the amended citation. Although the change was
probably inadvertent, because the Amended Citation and Notice of
Penalty supersedes the original and is the operative document
herein, the Item Numbers will be referred to as listed therein.



                         ISSUES 



In Item Number 1-1, defendant concedes the violation but
challenges the amount of the penalty ($1,050). In Item Number
2-2, defendant concedes that there was no shoring in the trench
and that the amount of the penalty is appropriate, but disputes
that there was an employee in the trench in violation of the
standard.



                       FINDINGS OF FACT



On April 15, 1992, defendant was digging a trench at the corner
of West First street and North C street in Island City, Oregon,
into which a water main was placed. The pipe (main) was
connected at the north end of the trench to a meter valve box
(the capped vertical pipe protruding from the ground best seen
in exhibit 6 page 6). When plaintiff's compliance officer
arrived, the water main had been connected to the meter valve
and extended south partially down the then excavated portion of
the trench at a slightly downhill angle. At what appears to be
between two thirds to three fourths of the length of the pipe
from the meter valve, a PVC pipe was connected to the main. The
PVC pipe was connected at a 90 degree angle from a shallower
trench intersecting from the east (see exhibit 6 pages 4, 5, 6
and 7). The main trench was four and a half feet deep at the
north end, six and a half feet deep at the junction of the PVC
pipe, and seven feet deep at the south end of the main then in
the trench. The intersecting ditch from the east was four and a
half to five feet deep.



One of defendant's employees, Cochrane, had connected the PVC
pipe to the main, but was in the shallow end of the trench when
the compliance officer arrived at the site (see the top
photograph on exhibit 6, page 4). The soil in the trench was not
stable rock. No adequate protective system was in place, causing
a high probability that an accident causing death could occur.
Defendant had previously violated this standard (see exhibit 5).



Also on April 15, 1992, an employee of defendant rode on the
fender of a backhoe approximately two thirds of a mile on a
heavily traveled highway (see exhibit 6 pages 13). The duration
of exposure, and in particular the proximity of the employee to
the point of danger, that is the wheel of the backhoe and other
vehicular traffic, indicate that it is likely that an accident
could occur, which reasonably could be predicted to result in
death. Defendant's lost workday cases incidence rate for the
previous calendar year was below the current published statewide
average rate for defendant's Standard Industrial Classification.



                   FINDINGS OF ULTIMATE FACT



An employee of defendant was not adequately protected in an
excavation greater than five feet deep and not in stable rock.
An employee of defendant was exposed to a substantial
probability that death or serious physical harm could result in
that it was likely that an accident could occur that reasonably
could be predicted to result in death.



                   CONCLUSIONS AND OPINION



Item Number 1-1



OAR 437-56-010(5) provides:



"No one but the operator shall be permitted to ride on vehicles
unless safe riding facilities are provided for each additional
person authorized to ride."  Defendant concedes that the rule
was violated. However, he contends that the penalty is too high.



I agree with the compliance officer that, considering the
factors contained in OAR 437-01-135(2), particularly the fact
that the employee rode for almost a mile on the fender and that
he was in close proximity to the point of danger, i.e. the
backhoe wheel and/or the highway pavement, a medium probability
of an accident existed. The backhoe was traveling slowly on a
busy public thoroughfare, thereby increasing the possibility of
a collision. There is no evidence that the backhoe contained any
protective device for the employee riding on the fender, or even
anything the employee could grab if he slid from the fender.
These factors indicate that it is likely that an accident could
occur, and therefore the probability rating is medium. OAR
437-01-135(3)(b).



I also agree with the compliance officer that, should the
employee fall from the backhoe, death would be reasonably
predictable because of the proximity of the wheel of the backhoe
and/or the possibility of being struck by traffic on the
highway. A medium probability of death results in a penalty of
$1,500. OAR 437-01-145(5). The violation is serious, because
there is a substantial probability that death or serious
physical harm could result. OAR 437-01-015(55)(a)(A). Therefore,
suspension of the penalty is not appropriate. OAR 437-01-150(2).
However, a 30 percent reduction is appropriate. OAR
437-01-145(2)(b).



Item Number 2-2



29 CFR 1926.652(a)(1) provides: "Each employee in an excavation
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
and examination of the ground by a competent person provides no
indication of a potential cave-in."



The excavation was not in stable rock and was greater than five
feet deep except at its north end. Defendant conceded that an
adequate protective system was required in areas of the trench
greater than five feet in depth in which an employee worked.
Plaintiff did not contend that an adequate protective system was
necessary in those portions of the trench less then five feet
deep.



The main issue litigated by the parties on this violation
concerned whether or not an employee of defendant was in the
trench, and if so, where. There is no question that defendant's
employee Cochrane was in the trench. The top photograph on page
4 of exhibit 6 shows Cochrane in the north end of the trench.
However, the north end of the trench is four and one half feet
deep, and it would appear from the photograph that the portion
of the trench in which Cochrane was standing was not over five
feet deep (defendant is not charged with failure to provide an
adequate protective system in an excavation less than five feet
deep). Thus, the compliance officer did not observe the
violation. However, the evidence preponderates in favor of
finding that Cochrane was working in the portion of the trench
more than five feet deep.



Cochrane was the "competent person foreman" on the job, and was
seen working in the trench by the project inspector for the
engineering firm and by the dump truck operator. Although
neither testified that Cochrane was seen in the deep end of the
trench, the fact that Cochrane was the employee primarily
responsible for laying the pipe corroborates Cochrane's
statement to the compliance officer on April 15, 1992 that he
had been in the deep end of the trench that day. More
specifically, the compliance officer's notes written on April
15, 1992 state that Cochrane said that he had connected the PVC
to the pipe. Exhibit 6 pages 4 through 9 clearly show the PVC
attached to the water main. The dump truck operator testified
that he had observed Cochrane working in the lateral ditch, from
whence the PVC came. There is no evidence in the record that
someone other than Cochrane made the attachment. Thus, the
hearsay evidence upon which the citation is based is
sufficiently corroborated to render the evidence reliable. The
trench was six and one half feet deep at the PVC attachment.
Therefore, an adequate protection system was required to be in
place at the time that the attachment was made.



Employer produced evidence at hearing that Cochrane might have
had an ulterior motive for telling the compliance officer that
he had been in the deep end of the trench. This may have been
true on April 28, 1992, the day after Cochrane's employment was
terminated when Cochrane called OROSHA and signed a written
statement, but there is no evidence that Cochrane was unhappy
with his employment on April 15, 1992. The fact remains that
someone had to attach the PVC line to the water main. There is
every reason to believe that that person was Cochrane, who was
at that time an employee of defendant. Therefore, the evidence
preponderates in favor of finding that the violation occurred.



                           ORDER



IT IS HEREBY ORDERED that Amended Citation number B7332-065-92
is approved.



NOTICE TO ALL PARTIES: If you are dissatisfied with this Order,
you may, not later than sixty (60) days from the mailing date of
this Order, request a review by the Court of Appeals, State Court

Administrator, Records Section, 1163 State Street, Salem, OR
97310. Any such request for review shall be mailed to the Court
of Appeals at the above address with copies of such request
mailed to all other parties to this proceeding. The procedure
for such judicial review is prescribed by ORS 183.480 and ORS
183.482. Failure to mail such a request for review within sixty
(60) days of the mailing date of this Order will result in LOSS
OF RIGHT TO APPEAL FROM THIS ORDER.



	ENTERED at Portland, Oregon, on APRIL 27, 1993 



				WORKERS' COMPENSATION BOARD

				Gary A. Thye referee