BEFORE THE WORKERS' COMPENSATION BOARD OF



                          THE STATE OF OREGON



                           HEARINGS DIVISION



Oregon Occupational Safety &                                    
  Health Division			)  Docket No: SH92345

	Plaintiff,			)  CITATION NO. G842106292

 		v.			)

ROSS BROTHERS CONSTRUCTION, Defendant.	)  OPINION AND ORDER



Pursuant to notice this matter was heard and closed on May 5,
1993 in Portland, Oregon before Albert W. Hoguet, Referee. The
Oregon Occupational Safety and Health Division of the Department
of Insurance and Finance (hereinafter OROSHA) was represented by
Thomas W. Cowan, Assistant Attorney General, Business Activities
Section, General Counsel Division, Department of Justice of the
State of Oregon. Ross Brothers Construction (hereinafter
defendant) appeared through Steven Toney, Vice President. No
attorney appeared on behalf of Ross Brothers and Ross Brothers
elected to proceed without legal counsel. Exhibits 1 through 6
submitted by OROSHA pursuant to letter dated April 27, 1993 and
Exhibit 7 submitted at hearing by Ross Brothers were received
into evidence. The proceedings were recorded by Sandy Madden of
Harris Reporting Services.



                        ISSUES



OROSHA issued Citation and Notice of Penalty No. G8421-062-92
(hereinafter citation) to Ross Brothers for violating Oregon's
safe employment act on August 17, 1992. Ross Brothers appeals
the citation.



There are five violations set forth in the citation. At hearing
Ross Brothers stipulated to the violation and penalty listed as
item number 2-5 at Exhibit 1-4. Ross Brothers disputes the other
four alleged violations. The findings of fact and conclusions
and opinions that follow focus solely on the disputed violations.



                      FINDINGS OF FACT



On July 28, 1992 the defendant was working on one of the
concrete hammerheads supporting a state highway bypass near
Corvallis, Oregon. The defendant was using a scaffold. The
scaffold was set up on a flatbed truck with two stages (levels)
above the flatbed of the truck. It was approximately 16 feet
from the second or top stage of the scaffold to ground level.
The scaffold was made of metal tubing. Four cross braces between
the flatbed of the truck and the first stage of the scaffold and
two cross braces between the first and second stages of the
scaffold were of the right length and properly placed and
secured by cross pins. Two cross braces between the first and
second stages of the scaffold were too long and not intended for
this scaffold and were held in place by a couple of pieces of
wrapped/twisted wire. Wood planks placed side by side were used
as flooring on both the first and second stage of the scaffold.
These wood planks extended over the end of the scaffold. They
were not secured in any way and the planks had no cleats/bumpers
to prevent end to end motion.



On July 28, 1992 an OROSHA safety compliance officer with 25
years experience with OROSHA happened to be driving by the
aforementioned work site and noticed two workers on the
aforementioned scaffold without apparent fall protection. The
compliance officer turned around and came back to the work site
and parked his vehicle approximately 300 feet from the area of
the scaffold. The compliance officer approached the scaffold
(first approach) and observed two workers working on the top of
the hammerhead on the top level of the scaffold. The compliance
officer tried to take photographs but had a dead camera battery.
The compliance officer returned to his vehicle, got a new
battery and again returned to the scaffold (second approach).
The two workers who had previously been on the scaffold were now
down off the scaffold and the flatbed truck supporting the
scaffold had been move forward and was in the process of backing
up. When the compliance officer approached the truck stopped and
the compliance officer then conducted an opening conference,
inspection, took photographs of the scaffold and then conducted
a closing conference. The photographs of the scaffold are set
forth at Exhibit 4 and depict the construction of the scaffold
as it appeared during the compliance officer's first and second
approach and depict the location of the scaffold after his
second approach.



During his first and second approach the compliance officer
observed no ladder or equivalent piece of equipment separate
from the scaffold anywhere near the scaffold to provide access
to or egress from the scaffold.



During the compliance officer's first approach when the two
workers were on the scaffold, the scaffold was very close to
actually leaning against the hammerhead but it was not touching
the hammerhead (Exhibit 44 shows the approximate distance). At
that point the scaffold was not vertical or plumb and was
leaning at an angle close to the angle depicted in Exhibit 43.
There was no chance the scaffold was going to fall completely
over.



                CONCLUSIONS AND OPINION



Credibility



The compliance officer was the only witness to testify at
hearing. Based upon my observations of his attitude, appearance
and demeanor and after a complete review of the record, I
conclude that the compliance officer was a very credible and
reliable witness.



Exhibit 7 is offered by the defendant as a partial contradiction
to the testimony of the compliance officer. Exhibit 7 was
allegedly prepared by an employee of the defendant who is still
working for the defendant. While I have admitted Exhibit 7 and I
consider its hearsay contents as relevant evidence in this
proceeding, I cannot consider it more persuasive than the
testimony of the compliance officer especially in light of the
fact that the compliance officer was subject to cross
examination at hearing and did not alter his testimony, has 25
years experience with OROSHA, his testimony is supported by his
worksheet/field notes and inspection supplement as set forth at
Exhibits 2 and 3 and in light of the record as a whole.



Contested OROSHA Violations



OROSHA has the burden of proving by a preponderance of the
evidence a denied violation and the reasonableness of any
contested penalty. OAR 438-85-820. The four contested violations
are discussed separately below.



1. Violation Item #1-1



The standard violated is cited at Exhibit 1 page 3 and is set
forth at Exhibit 5 page 190 and basically requires that
scaffolds be plumb. It is OROSHA's contention that the scaffold
was not plumb during the compliance officer's first approach
when the two workers were working on the top stage of the
scaffold. OROSHA relies on the testimony of the compliance
officer and the photographs at Exhibit 44 and 43 as discussed in
the Findings of Fact above. The defendant contends that the
scaffold was not out of plumb. I agree with OROSHA. The scaffold
was slightly out of plumb.



2. Violation Item #1-2



The standard violated is cited at Exhibit 13 and set forth at
Exhibit 5-197. This standard deals with how to properly brace a
scaffold. OROSHA contends that the two cross braces between the
first and second stages of the scaffold that were too long and
not intended for the scaffold being used and that were held in
place by a couple of pieces of wrapped/twisted wires violated
this standard. I agree. The defendant relies on Exhibit 72 to
avoid a violation under this standard. For the reasons
previously stated above I cannot accept this hearsay statement
over the testimony of the OROSHA compliance officer.



3. Violation Item #1-3



The standard violated is cited at Exhibit 1-3 and set forth at
Exhibit 5-190. That standard requires an access ladder or
equivalent safe access be provided to the scaffold. There is
really no dispute that there was no ladder or equivalent piece
of equipment available or being used during the compliance
officer's approach. The defendant used the scaffold frame for
access to the scaffold. OROSHA contends that the use of the
scaffold frame for access constitutes a hazard because the
scaffold frame is designed for various levels of planking and
not for access by workers and once planking is in place,
requires workers to perform very difficult maneuvers to get
around the planking to get on the scaffolding decks. I agree.
The applicable standard has been violated.



4. Violation Item #1-4



The standard violated is cited at Exhibit 1-3 and is set forth
at Exhibit 5-190. The basis of this violation is that the
scaffold planks did not have cleats or bumpers on the bottom to
prevent the planks from moving end to end as depicted in
Exhibits 4-3 and 4-4. The defendant argues that since the planks
extended over the ends of the scaffold support as depicted in
the photographs and in compliance with another standard that is
sufficient and should excuse a violation of this standard. I
disagree. There are two separate standards with two separate
purposes and the standard cited was clearly violated.



5. Probability/Severity/Penalty



The defendant's main concern in this case is that the four
violations discussed above have been classified as serious.
Violations are evaluated based on probability and severity.
Probability is rated as low, medium or high. Severity is rated
as low, moderate, serious physical harm or death. The
probability and severity ratings are then placed in a penalty
schedule table to come up with a standardized penalty for the
rated violation. The administrative rules governing this
procedure are set forth at OAR 437-01-135 through OAR
437-01-145. All of the defendant's four violations received a
probability rating of low which means that the compliance
officer after considering the various factors in the applicable
administrative rule concluded that is was "unlikely that an
accident could occur" as a result of. each of these violations. 
I agree with this assessment.



The severity rating is based on the compliance officer's
determination of the degree of injury which is reasonably
predictable should an accident occur as a result of the four
violations. The compliance officer concluded that serious
physical harm was reasonably predictable if a worker was to fall
the sixteen feet from the top stage of the scaffold to the
ground. Specifically the compliance officer concluded that it
was reasonably predictable that a worker would suffer a fracture
as a result of such a fall. Serious physical harm is defined at
OAR 437-01-010(50) to include fractures. I agree with the
compliance officer that a fracture is reasonably predictable if
a worker was to fall sixteen feet from the top stage of the
scaffold. I also agree that serious physical harm (a fracture)
is reasonably predictable with regard to violations 1-2, 1-3 and
1-4 but I disagree that serious physical harm is reasonably
predictable with regard to violation 1-1. That is because even
though the scaffolding was out of plumb it was not that far out
of plumb as evidenced by Exhibits 4-4 and 4-3 and because it was
almost leaning up against the hammerhead. As the compliance
officer testified, there was no chance the scaffolding was going
to fall completely over. Any tipping of the scaffolding would be
against the hammerhead and would result in a tipping of a very
short distance. This tipping might cause a worker to fall toward
the hammerhead but would not on a reasonably predictable basis
cause the worker to fall sixteen feet to the ground. I conclude
therefore that the severity rating for violation 1-1 should be
low meaning such a fall "could cause minor injury.



Plugging the probability ratings and the severity ratings into
the penalty schedule results in a general violation and a zero
dollar penalty for violation 1-1. All of the other violations
constitute serious violations with a penalty amount equal to
$150. This was the amount calculated by the compliance officer
but because the defendant corrected all violations at the time
of inspection and because the defendant had a good safety
record, the compliance officer reduced the defendant's penalties
for each serious violation to $75 as permitted by OROSHA
administrative rules. Those $75 penalties are the penalties on
the citation with regard to violations 1-2, 1-3 and 1-4 and
those penalties will be affirmed.



                         ORDER



OROSHA Citation and Notice of Penalty No. G8421-062-92 is hereby
affirmed as to violation item numbers 1-2, 1-3, 1-4 and 2-5 and
violation item number 1-1 is hereby changed to a general
violation with a penalty of $0.



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 MAY 19, 1993 



				WORKERS' COMPENSATION BOARD

				Albert W: Hogue

				Referee