THE STATE OF OREGON

                           HEARINGS DIVISION

Oregon Occupational Safety &                                    
  Health Division			)  Docket No:  SH-93066

 	Plaintiff			)  CITATION NO:  P9762-024-93



	Hearing was held in Medford, Oregon on July 20, 1993 before
Philip A. Mongrain, Referee.  Oregon Occupational Safety and
Health Division (OR-OSHA) was represented by Assistant Attorney
General Armonica Gilford.  Trees, Inc. was represented by
attorney Jeremy Fellows.  The hearing was reported by Cari Domis
of Business Support Services and was initially closed at its
conclusion but was thereafter reopened on August 3 upon receipt
of a motion by Ms. Gilford to amend OR-OSHA's citation.  Mr.
Fellows' response to the motion was then submitted, a response
by Ms. Gilford was submitted and on September 10 Mr. Fellows'
final response relative to the motion was received.


	(1)  Whether OR-OSHA should be allowed to amend its citation
relative to Item 1-1.

	(2)  Whether the defendant violated safety standards as alleged
in Item 1-1 of the citation issued by OR-OSHA on February 18,

	The defendant conceded at the hearing that it would not
challenge the violation alleged in Item 1-2 of the citation.

                      FINDINGS OF FACT

	On January 27, 1993 the defendant was removing a Douglas Fir
and one of its employees was removing limbs as he climbed up the
tree (Mike Patterson's testimony; Exhibits 3 (page 1), 4).  The
employee was described that day by Safety Compliance Office Mike
Patterson to be 45 to 50 feet up in a tree and not using a
"climbing rope" for fall protection as he climbed the tree and
at times as he cut limbs (Mike Patterson's testimony; Exhibit 3,
page 1).  Mr. Patterson intended by his written term "climbing
rope" to describe a "flip strap", which is a different device
(Mike Patterson's testimony).  A climbing rope is thrown up into
a tree and anchored in a limb crotch and used to assist a person
in climbing up  the tree, while a "flip strap" is a thick strap
that serves as a method off all protection by wrapping around
the trunk of a tree and hooking into a special belt worn by the
worker (Mike Patterson's testimony, Bob Reeder's testimony). 
Although a forester that works for Trees, Inc., J. Neil,
testified that the worker on January 27, 1993 had a climbing
rope hanging from his belt, in fact a climbing rope cannot
effectively be used in a Douglas Fir because of the number and
configuration of the limbs, and its attempted use can render
climbing a tree more hazardous (Bob Reeder's testimony, Jay
Neil's testimony, Merle Baker's testimony).  Although Mr.
Patterson's field notes reflect that the worker sawed limbs
while unhooked from his "climbing rope", and that the job
foreman agreed the worker was not tied off (Exhibit 3, page 1),
Mr. Patterson agreed at the hearing that the worker was secured
to the tree by his "scare strap".  Also, Mr. Neil testified that
although he did not use it all the time the worker used his
strap while removing limbs.

	Mr. Patterson calculated that the circumstances he observed
represented a low probability of an injury occurring from a fall
and that the injury could be death, which requires a $1500 fine
according to the applicable regulations.  According to Mr.
Patterson he recommended a reduction of the fine to $750 because
of immediate compliance and the employer's low accident rate.

	On February 18, 1993 a citation was issued charging the
employer with a violation of OAR 437-2-310(1)(a) insofar as
climbing a Douglas Fir at a height of approximately 45 to 50
feet without being tied off with his climbing rope, and
assessing a penalty of $750 (Exhibit 1, page 3).  A violation of
OAR 437-65-020(1)(b) was also alleged (Exhibit 1, page 3).  The
employer then requested a hearing "appealing all citations
issued on 2/18/93" (Hearings Division File).  

	At the commencement of the hearing Mr. Fellows offered a motion
in limine for the purpose of limiting the issue to whether the
defendant had violated the safety standard in question by its
employee not being tied off with a climbing rope while climbing
a tree, as opposed to working in the tree.  The motion was
consistent with a pre-hearing motion and supporting points and
authorities filed by Mr. Fellows for a stay of the correction
order issued relative to the violation of OAR 437-2-310(1)(a) as
alleged by OR-OSHA (Hearings Division File).  That motion was
granted on May 18, 1993 (Hearings Division File).  Subsequent to
the hearing OR-OSHA moved to amend the citation as follows:

"Item No. 1-1 Standard Violated: OAR 437-02-310(1)(a) The employee did not use OR-OSHA approved fall protection when working 10 feet above the ground in a Douglas Fir tree at employer's worksite in Corvallis, Oregon."
ULTIMATE FINDINGS OF FACT (1) Good cause does not exist for amending OR-OSHA's citation. (2) The defendant's employee was climbing but not working during the period of time he was not tied in with his climbing rope. (3) A climbing rope cannot safely be used in a Douglas Fir in the usual manner. (4) The defendant's employee has not been proved to have been unsecured while working in the tree on January 27, 1993. OPINION OR-OSHA argues it should be allowed to amend its citation. The essential basis for its argument can be found in the following statements:
"...Defendant must also provide OR-OSHA with notice of those defenses defendant intends to raise. OR-OSHA prepared its case based on defendant's statements at the informal conference and defendant's April 12 Request for Stay. OR-OSHA's case was prejudiced as a result." (Motion to Amend, page 2 lines 19-23). "...Defendant did not provide plaintiff with notice that it intended to wait until hearing to argue over the meaning of 'climbing rope' and then assert a defense that it more hazardous to comply with the 'climbing rope' requirement when ascending Douglas Fir trees than not to comply with the requirement..."
(Plaintiff's Response to Defendant's Objection to Plaintiff's Motion to Amend, page 2 lines 22-26, page 3 line 1). Prior to the hearing OR-OSHA was clearly advised that the defendant would contend that its employee did not violate the standard in question by not being tied off with a climbing rope while climbing, as opposed to working. To the extent the defendant relies on the distinction between a "climbing rope" and "flip strap" or "scare strap" and the argument that the use of a climbing rope creates a greater hazard, that is an affirmative defense that is always available and as far as I am aware there is no statutory or administrative requirement that an affirmative defense must be specifically pleaded. Necessarily inherent in the defendant's position is any reason why it is not a violation if a worker is not tied off with a climbing rope while climbing, and in that context the defendant was entitled to assume that the compliance officer who prepared the notes which served as the basis for the citation knew the difference between a climbing rope and a "flip strap" and would not use the two terms interchangeably. Therefore, the defendant had no reason to advise OROSHA that it would distinguish the two. Ms. Gilford cites Professor Davis as to the objective of fair opportunity to prepare for an administrative hearing. In the context of the circumstances described above, I believe OR-OSHA in fact had a fair opportunity to prepare by reviewing the citation, discussing the case carefully with the compliance officer and availing itself of the obvious opportunity prior to the hearing to review the defendant's stated position and request further information from defendant's counsel as to particular defenses that would be advanced. Therefore, I conclude that there is no good cause shown pursuant to OAR 438-85-536 for allowing the proposed amendment. As to the merits of the alleged violation, OAR 437-02-310(1)(a) provides:
"A tree worker shall be tied in with an approved type of climbing rope and safety saddle when working 10 feet above the ground. The climbing rope shall always be used even when working from a ladder or scaffold and the employee is 10 feet or more above the adjacent ground line. A safety strap or rope with snaps may be used for additional protection."
OAR 437-02-310(1)(c), (f), (g) and (h) provide, respectively, that the climbing rope shall be passed around the tree trunk as high as possible using "branches with a wide crotch"; that the climbing line "... shall be crotched as soon as practical after the worker is aloft..."; that the worker is to be secured "...before starting operations"; that the worker "...shall remain tied in until the work is completed..." Phrases such as "tying in", "after the worker is aloft", "secured before starting operations", "tied in until the work is completed" reflect to me the idea of a distinction between climbing or ascending a tree and performing the particular work procedures that are the purpose of climbing the tree. The context of the regulations persuades me that the climbing rope is to be used to secure the worker while performing the procedures, not while actually climbing the tree. Therefore, it has not been proved that the defendant violated OAR 437-2-310(1)(a) as alleged in Item 1-1 of the citation. Assuming that Item 1-1 properly alleges a violation of OAR 437-2-310(1)(a) and that actual climbing of the tree is covered by the regulation, there is uncontradicted evidence that a climbing rope cannot safely be used in its intended manner in a Douglas Fir; that it is more hazardous to use it in the intended manner than not to use it. Therefore, the affirmative defense has been established. Finally, assuming that the motion to amend the citation should have been allowed, the compliance officer's testimony indicated that while removing limbs the claimant was secured to the tree by his "scare strap". Jay Neil, who works for the defendant, testified to the same effect. This is contrary to the compliance officer's notes, but it leaves the evidence at least in equipoise as to this point, which is insufficient to carry OR-OSHA's burden of proof. Therefore, even an amended violation could not be proved by a preponderance of the evidence. CONCLUSIONS OF LAW (1) The citation cannot properly be amended. (2) The violation alleged in Item 1-1 of the citation has not been proved. ORDER IT IS HEREBY ORDERED THAT with regard to Citation No. P9762-024-93: (1) Item 1-1 is dismissed. (2) Item 1-2 and the proposed penalty are approved. NOTICE TO ALL PARTIES: If yo are dissatisfied with this Order, you may, not later than sixty (60) days after the mailing date on this Order, request a review by the Court of Appeals, Third Floor, Justice Building, Salem, OR 97310, pursuant to ORS 183.480, 482. A 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. Failure to mail such a request for review within sixty (60) days after the mailing date of the Order will result in LOSS OF RIGHT TO APPEAL FROM THIS ORDER. Entered at Medford, Oregon on this day December 9, 1993 WORKERS' COMPENSATION BOARD Philip A. Mongrain, Referee