BEFORE THE WORKERS' COMPENSATION BOARD OF THE STATE OF OREGON HEARINGS DIVISION
Oregon Occupational Safety & Health Division ) Docket No: SH92353 HEALTH DIVISION ) Plaintiff, ) Citation No. S0426-040-92 vs. ) ) DCS SANITATION MANAGEMENT ) Defendant ) ORDER ON RECONSIDERATION An Opinion and Order was issued in the above entitled matter on May 19, 1993. An Order of Abatement to allow reconsideration was issued on July 15, 1993. The employer has filed affidavits and exhibits in support of its motion for a reopening. Both parties have filed memoranda.
ISSUES
The employer essentially raises three types of arguments in its request for reconsideration and reopening. First, the employer offers new and additional evidence in support of its case, which was not presented at the time of the hearing. Second, the employer argues that, based upon that new evidence and the newly submitted evidence, no violations occurred. Finally, the employer argues that the wrong standard for determining whether a serious violation occurred was applied.
CONCLUSIONS AND OPINION
New Evidence The employer seeks to offer essentially four factual allegations which were not presented at the time of hearing. The first is that while the violation indicated that an alkaline cleaner was used, the cleaner was not actually alkaline based. The second is that the mixing process was inherently safe. The third is that the eyewash fountain was more accessible than indicated in the violation and opinion and order. Finally, the employer submits a contract, indicating that it was someone else's responsibility to make eyewash fountains available. All of the above referenced new evidence and arguments that can be made based upon that evidence constitutes evidence and argument that could have, with the exercise of due diligence, been offered and made at the time of hearing. Neither fairness nor substantial justice dictate that the employer be allowed to try its case on more than one occasion. As part of its offer of this new evidence and argument, there must be some showing that that information was not available at the time of hearing. There is no such showing. The only thing that has apparently changed since the time of the hearing is that the employer has obtained counsel. That is obviously the employer's right. In fact, at the time of hearing, before going on the record, the employer was given a Notice of Rights under the Administrative Procedures Act and directed to read those rights. Those rights contain a notice indicating that the employer is entitled to be represented by an attorney and that the employer is entitled to request a postponement during the hearing if the employer decides that it needs an attorney. Once this case went on the record, the employer representative, Mr. Moore, was asked if he had read the notice and waived its reading. He answered affirmatively to both questions. Thus, the employer knowingly waived its right to counsel during this hearing. The fact that it has now obtained counsel and that counsel has additional evidence and argument to present that was not presented by the unrepresented employer at the time of hearing does not constitute a basis under a standard of fairness or substantial justice to reopen the record. Existence of Violations The employer's second series of arguments concerns whether the violations cited in this case actually occurred. As APD points out in its reply responsive brief, the employer stipulated that the violations occurred and that the only dispute concerned whether they should have been classified as serious. In its reply brief to that response, the employer suggests that this unrepresented employer representative was told that that was the only issue presumably by the referee. The issue of the employer having been unrepresented is dealt with above. As far as the limitation of the issues, the transcript makes it clear that what the referee told the employer was that it was the referee's understanding that the employer did not contest the violations themselves, but only their characterization as serious. This came up on two occasions during the introductory comments between the referee and the parties and on both occasions the employer representative agreed with that statement of the issues. Accordingly, the employer knowingly and expressly waived at the time of hearing any argument that the violations did not occur. Neither fairness nor substantial justice suggest that it should be allowed to rescind its agreement and now litigate the violations. Standard of Proof for Serious Violation The employer correctly points out that the definition of a serious violation is contained at OAR 437-01-015(55)(a)(A). That definition and a discussion of whether the facts in this case meet the standard of proof for a serious violation is indeed not contained in the Opinion and Order. I would note, however, that APD, in its closing argument, did rely upon that subsection. The employer suggests that because the referee concluded that there was a low probability that an accident with these chemicals would occur, it is not legally possible to conclude that a serious violation took place. That is not a correct application of the administrative rules as I understand them. The issue of whether there is a high or low likelihood that an accident will occur arises under OAR 437-01-145(5), where the proper penalty is assessed. As I understand the rules, that is the only place where the probability of an accident occurring has any relevance. To meet the definition of a serious violation, there must be a substantial probability that death or serious physical harm could result from the violation which exists. Thus, there must only be a substantial probability that, if an accident occurs, death or serious physical harm could result. There does not need to be a substantial probability that the accident will occur. The focus is on the probability of serious physical harm. Under the facts established at the time of hearing, that substantial probability was proved by APD. There was a substantial probability that serious injury to the eyes could occur if the chemicals came in contact with the eyes. In addition, such a violation is serious unless the employer did not, or could not, with the exercise of reasonable diligence, have known of the presence of the violation. The employer has not argued that it did not or could not have known with the exercise of reasonable diligence of the presence of the violation. Clearly, it either knew or should have known that the fountain was not immediately accessible and in good operating order. In sum, I conclude that APD has sustained its burden of proving a serious violation and correctly determined the penalties for that violation.
ORDER
On reconsideration, as supplemented herein, I adhere to and republish my May 19, 1993 Opinion and Order in its entirety. The parties rights of appeal shall run from the date of this order. 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 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 October 22, 1993 WORKERS' COMPENSATION BOARD By John Mark Mills Referee