BEFORE THE WORKERS' COMPENSATION BOARD OF



                          THE STATE OF OREGON



                           HEARINGS DIVISION



Oregon Occupational Safety &                                    
  Health Division			)  Docket No:  SH92377

					)  

 	Plaintiff			)  CITATION No: D4775-055-92

					)

 	of				)

HOFENBREDL LOGGING			)  

	Defendant			)  OPINION AND ORDER



	Pursuant to notice, a hearing was convened and closed on July
27, 1993, in Salem, Oregon, before Referee Kirk Spangler. 
Plaintiff, Oregon Occupational Safety and Health Division ("OR
OSHA"), was represented by Mr. Kevin Shuba, Assistant Attorney
General.  Defendant, Hofenbredl Logging, was represented by Mr.
Don Davis, Loss Prevention Engineer.  Exhibits 1 through 12 were
received in evidence.  The hearing was recorded by Business
Support Services.



                         STIPULATION



	The parties stipulate to the violation and penalty as set forth
in Item 1-3 of the citation (Citation No. D4775-055-92).



                          ISSUES



	1.  Whether defendant violated OAR 437-06-435(4).



	2.  Whether defendant violated OAR 437-06-045(2).



                         FINDINGS OF FACT



	Decedent, Mr. Nolan Curl, began working for the employer as a
part-time truck driver in 1989.  He continued to work for the
employer in that capacity until his death at age 75.



	The employer was engaged in the business of loading and
transporting logs.  Thus, the employer owned and operated a
machine loader and several logging trucks.



	On May 1, 1992, the employer was operating a machine loader at
a site approximately two miles away from the location of Curl's
death.  Meanwhile, Curl had driven one of the employer's trucks
to another work site to pickup and haul some logs.  There, Fall
Creek Logging was operating the machine loader.



	While his truck was being loaded, Curl stepped out of the cab
and walked to the rear of the trailer.  He was wearing a
baseball cap; not a hard hat.  A log fell, striking him on the
head.  As a result of head injuries, he died.



	Shortly after the accident, an OR OSHA safety compliance
officer arrived.  He conducted an investigation, which led to
Citation No. D4775-055-92.



                ULTIMATE FINDINGS OF FACT



	The employer, Hofenbredl Logging, had no control over the
loading operation performed by Fall Creek Logging.



	Curl was engaged in a logging activity wherein there was a
possibility of falling objects, but was not wearing a hard hat.



               CONCLUSIONS OF LAW AND OPINION



Item 1-1



	OAR 437-06-435(1) and (4) state:



"(1) It shall be the responsibility of the employer who has control of the actual loading operation to comply with OAR 437-06-435(2) through (20) which are applicable to log loading and to the requirement for hard hats. "(4) No employee shall enter the hazardous area alongside or underneath a log truck being loaded without establishing communication with the loading machine operator and truck driver and determining that it is safe to enter the area, and that the logs are saddled within the stakes or secured by the log loader. The danger area shall include * * * both sides of the log truck behind the cab guard." (Emphasis added).
The employer argues that OR OSHA has cited to and relied on a rule that does not apply. OR OSHA responds that Division 6 applies to all forest activities. OAR 437-06-003(1). It also argues that OAR 437-06-435(1) cannot be read to apply solely to the employer in control of the loading operation. To be sure, Division 6 establishes safety and health practices for all forest activities. OAR 437-06-003(1). That is not to say, however, that every rule in Division 6 applies to every forest activity. A cursory review of Division shows that is subdivided by subject matter. Thus, while one rule may cover a certain forest activity, another may not. Here, Curl's death occurred while logs were being loaded onto the employer's truck. The employer was not at the loading site, however, and had no control over it. The loading operation was under the control of another employer. The emphasized portion of the above-quotation shows that it is the responsibility of the employer with actual control over the loading operation to comply with OAR 437-06-435(2) through (20). The rule is plain and unambiguous. Accordingly, I conclude that OAR 437-06-435(4) does not apply to the employer. Moreover, OAR 437-06-435(4) plainly applies to an employee other than the truck driver. Otherwise, it would not require the employee to communicate with both the loader operator and the truck driver. It would seem, therefore, that a more precise rule would apply to Curl. That rule is OAR 436-06-460(5), which specifically applies to "truck drivers or other employees." See Hogan and Moran, OSHA, Section 4.04[4], pg. 4-113. Although OR OSHA could have moved to amend its pleading, it did not do so -- either before or at the hearing. See OAR 438-85-526(1). Thus, I need not inquire into whether the employer was surprised or prejudiced. See Hogan and Moran, OSHA, Section 4.04[5], pgs. 4-113 and 4-114. For all of the above reasons, I conclude that the employer has not violated OAR 437-06-435(4). Therefore, the violation set forth in Item 1-1 and the $700 penalty must be set aside. Item 1-2 OAR 437-06-45(2) states:
"Employees engaged in logging activities or working in areas where there is a possible danger of head injury from impact or from falling or flying objects, shall wear an approved hard hat meeting the provisions of American National Standard, ANSI Z89.1-1986, Protective Headwear for Industrial Workers - Requirements.
"EXCEPTION: Employees working in or under a vehicle cab or canopy are excluded from wearing a hard hat while in or under such vehicle." Here, Curl was generally engaged in a logging activity and was working in an area of possible head injury. Despite that danger, he was not wearing a hard had as required by OAR 437-06-045(2). Regarding the penalty, the evidence is persuasive that the violation was serious. Therefore, OR OSHA has met its burden of proving the both the violation and penalty set forth in Item 1-2. Item 1-3 I do not address Item 1-3, inasmuch as the parties have stipulated to the violation and penalty therein. ORDER IT IS THEREFORE ORDERED that Item 1-1 in Citation No. D4775-055-92, as well as the associated penalty, is set aside and disapproved. IT IS FURTHER ORDERED that Items 1-2 and 1-3 in Citation No. D4775-055-92, as well as the associated penalties, are upheld and approved. 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 August 18, 1993 WORKERS' COMPENSATION BOARD By Kirk Spangler Referee