BEFORE THE WORKERS' COMPENSATION BOARD OF
THE STATE OF OREGON
HEARINGS DIVISION
Oregon Occupational Safety &
Health Division ) Docket No: SH 92152
Plaintiff, )
) Citation # G4174-014-91
EMPIRE W. INVESTMENT, )
Defendant ) OPINION AND ORDER
Pursuant to notice, a hearing was held on July 5, 1994, in
Eugene, Oregon, before George P. Livesley, Referee. The
Plaintiff was represented by Armonica Gilford, Assistant
Attorney General. Defendant, Empire W. Investment appeared
through Mike Cauthon, President, and was represented by
represented by Hunter B. Emerick. The proceedings were recorded
by Donna Taylor of Business Support Services and the record
closed on the the date of hearing.
ISSUES
This a contested case under the Oregon Safe Employment Act, ORS
Chapter 654.
Defendant contests Citation G4174-014-91 issued by Plaintiff
January 9, 1992, alleging violations of the following Oregon
Administrative Rules:
1. OAR 437-40-065(3), which requires "Any materials
which might cause a worker to slip or fall shall be removed from
floors and other treading surfaces immediately, or suitable
means or method shall be used to control the hazardous
condition" by failing to keep the kitchen and adjacent areas
free of potentially slippery grease and water. Violation class:
Serious--failure to correct; Additional penalty $5000.00.
2. OAR 437-40-050(1) which requires "each employer shall
investigate or cause to be investigated very lost time injury
that workers suffer in connection with their employment to
determine the means that should be taken to prevent recurrence.
The employer shall promptly install any safeguard or take any
corrective measure indicated or found advisable" by failing to
do accident investigations, and by failing to take the
corrective measures necessary to prevent recurring slips and
falls, resulting in serious injuries. Violation class:
serious--failure to correct; additional penalty: $1500.00.
[Exhibit 1 pages 3,4.]
And also contests citation also issued under number G4174-014-91
by Plaintiff January 9, 1992, alleging violations of the
following Oregon Administrative Rules:
3. OAR 437-02-040, 29 CF 1910.36(b)(4)which
requires in relevant part "In every building... exits shall be
so arranged and maintained as to provide free and unobstructed
egress for all parts of the building or structure at all times
when it is occupied..." by blocking the emergency exit with
empty cardboard boxes. Violation class: serious; penalty:
$1000.00.
4. OAR 437-40-047(2) which requires in relevant part "The
safety committee shall hold regular meetings at least once a
month..." by failing to hold a safety meeting for the month of
July 1992, violation class: repeat; penalty: $200.00. [Exhibit 1
pages 13, 14.]
STIPULATIONS
At hearing, Plaintiff withdrew that part of the citation which
alleged violation of OAR 437-40-050(1) [Set out as # 2 in the
ISSUES portion above.]
MOTION TO DISMISS
Employer moved to dismiss item #1.1--which alleges violation of
OAR 437-40-065(3)--on the grounds that the citation is based
purely on unreliable hearsay, citing Reguero v. Teacher
Standards and Practices, 312 Or 402 (1991).
I decline to dismiss item #1.1 on the grounds stated because the
court in Reguero specifically stated in footnote 21 that the
question of admissibility of the evidence relied upon by the
agency was not raised, and hence would not be addressed.
Although the court does suggest that hearsay is admissible only
if it is capable of being "substantial evidence" it rejects any
categorical method of determining substantiality, because the
"substantial evidence" inquiry is "case specific." Id. at 417,
418.
FINDINGS OF FACT
Defendant, Empire W Investments Inc., does business as Izzy's
Pizza Restaurant, hereinafter referred to as Izzy's.
Ray Guistio, Health Compliance Officer for Plaintiff, presented
at Izzy's on August 21, 1991 in response to a complaint that a
hot dog machine was causing a build-up of heat in the kitchen
area. [Ray Guistio is hereinafter referred to as investigator.]
Izzy's does not have a hot dog machine and investigator did not
find a problem with heat, but elected to conduct an inspection
of the premises. That inspection resulted in the citations
issued January 9, 1992, and contested herein.
Izzy's had been issued citation # F2996-018-91 on June 13, 1991,
alleging a violation of OAR 437-040-065(3), OAR 437-40-050(1),
and OAR 437-40-007(2), as well as other violations not germane
to this hearing, and given until June 27, 1991, to correct the
above violations. [Exhibit 1, pages 7, 8.]
Otherwise respond to the postcard/notice of correction sent by
Izzy's.
Izzy's made an untimely appeal of the June 13, 1991, citation,
No. F2996-018-91 and its request for hearing was dismissed.
The penalty is based upon the factors of probability of accident
and the severity.
OROSHA developed a postcard form, which it leaves with cited
employers, to be utilized in informing OROSHA that the cited
violations have been corrected. OROSHA left such postcard
with employer when it issued citation #F2996-018-91 in which
violation of OAR 437-040-065(3) was alleged and employer given
until June 27, 1991, to make the required correction.
Claimant timely mailed the correction notice to OROSHA, noting
thereon the steps taken to correct/abate.
OROSHA did not advise employer that the proposed correction of
OAR 437-40-065(3) was unsatisfactory, nor did OROSHA conduct a
follow-up inspection of employer's premises, or otherwise
respond to the postcard/notice of correction sent by Izzy's,
prior to the dates the inspection upon which the citation under
consideration herein was conducted.
Employer advised OROSHA in said postcard that it had changed the
chemicals it used to a stronger grease cutting agent and had
enhanced the training given employees. OROSHA was advised mats
had been attempted and that an attempt to adhere an impregnated
tape designed to prevent slipping to the floor had been made,
steam cleaning was utilized and the areas were cleaned on a more
frequent basis.
Investigator was unable to recall whether the photographs taken
in support of the citation were taken before or during the
cleanup/mopping process.
Investigator did not find the floors slippery when he conducted
the investigation upon which the citation under consideration
here was issued on August 21, 1991 or September 20, 1991, and he
did not observe anyone slip during the time he was on the
premises.
The floor of Izzy's is made of an epoxy mixed with a sand glass
designed to provide an abrasive finish.
How to address the alleged slippery floor conditions were the
topic of at least one safety committee meeting.
Employer's premises are equipped with emergency lights which are
designed to activate when electrical power is terminated.
The boxes stacked by the door on the date of investigation were
there briefly. The placement of the boxes did not interfere
with, or block access to the emergency door tripper bar/handle
which opens the door.
FINDINGS OF ULTIMATE FACT
Violation of OAR 437-040-065(3) slippery floors is a serious
violation of medium probability with the risk of serious
physical harm.
Violation of OAR 437-02-040, 29 CFR 1910.36(b)(4), obstructed
emergency doors, is a serious violation of low probability and
low severity.
Violation of OAR 437-40-047(2) failure to hold July safety
meeting, is a repeat mandatory violation carrying a penalty of
no less than $50.00.
The penalty for failure to correct is determined under OAR
437-01-155.
The penalty assessed for the alleged failure to abate the
violation of OAR 437-40-065(3) was computed based on the medium
probability and serious risk of physical harm multiplied by 10
days. Such computation is not authorized under OAR 437-01-155
because it failed to consider efforts by employer to correct the
violation required by subsection (2)(b).
OROSHA made no attempt to subpoena the 7 employee witnesses upon
whose statements investigator determined that employer had
failed to abate the violation of OAR 437-40-065(3).
CONCLUSIONS OF LAW AND OPINION
Every employer has the duty to comply with every safety rule,
standard, order, and/or regulations. ORS 654.022.
A violation is the breach of a person's duty to comply with an
Oregon occupational safety or health statute, regulation, rule,
standard or order. The specific classifications of violations
are: A. Serious B. General C. Minimal.
A serious violation is one in which there is a substantial
probability that death or serious physical harm could result
from a condition which exists, or from one or more practices,
means, methods, operations or processes which have been adopted
or are in use in a place of employment unless the employer did
not, and could not with the exercise of reasonable diligence,
know of the presence of the violation. OAR
437-01-015(55)(a)(A)(B)(C)
Serious physical harm is defined in OAR 437-01-015(50)(a)
Injuries that could shorten life or significantly reduce
physical or mental efficiency by inhibiting either temporarily
or permanently, the normal function of a part of the body.
Examples of such injuries are amputations, fractures (both
simple and compound) of major bones, deep cuts involving
significant bleeding and which require extensive suturing,
disabling burns, concussion, significant internal injuries, and
other cases of comparable severity.
The penalty schedule is based upon the probability of injury and
the severity of the potential injury.
Violation of OAR 437-040-065(3), slippery floors:
Izzy's was issued citation No. F2996-018-91, for violation of
the above rule on June 13, 1991, and given until June 27, 1991
to correct/abate the violation.
It is clear that employers have a duty to correct any violation
the employer has been ordered to correct. OAR 437-01-230(1).
It is equally clear that the administrator has authority to
issue a citation for safety violation and for nonabatement of a
prior violation. ORS 654.031, ORS 654.071(4), OAR
437-01-155(1).
The question presented is whether employer did make the
correction required. Employer testified that it completed the
"correction" postcard left at the business premises by Plaintiff
for that purpose and mailed same to plaintiff.
The evidence is unrebutted that OROSHA did not return to the
business premises to make a subsequent inspection to determine
whether in fact the violation had been corrected or otherwise
respond to employer's postcard notice of correction.
Employer testified that it noted on said postcard that it had
changed the chemicals it used to a stronger grease cutting agent
and had enhanced the training given employees. Employer also
testified that the use of rubber mats had been employed; that an
attempt made to attach an impregnated tape to the floor designed
to prevent slipping; that steam cleaning was utilized; and that
the areas were cleaned on a more frequent basis. Such would
suggest to the hypothetical reasonable man that satisfactory
correction had been made.
OROSHA testified that chosing between citing employer for a
failure to abate and a repeat violation where correction had
failed, he relied on interviews for 7 employees and employer.
Those employees allegedly all 7 employees advised investigator
that the floor was slippery. There was no attempt to subpoena
any of the employees and none appeared at hearing. The
statements of those employees are therefore hearsay, and while
the referee has discretion to allow hearsay, it should be
sufficiently clear to support the premise forwarded. I find
that this particular hearsay is insufficient to establish that
employer has failed to abate.
Steve Childers stated that the floors were slippery when wet
from mopping. There is evidence in the record that signs are
placed warning of the wet floors and slippery conditions during
the mopping process. He further stated that mopping occurs
between 8 and 10:30 but that floors are cleaned when needed or
if spills occur. Such would establish that employer addresses
the condition of slippery floors.
Rick Price allegedly stated that the floors are no better--still
slippery, and that he had slipped and fell to the floor. There
is no evidence that any such incident was reported, nor is it
specified whether or not the slip occurred during the cleaning
process.
Steve Such allegedly stated that he had slipped, but that the
mopped floors are slippery for 15-20 minutes during the process.
That would suggest that is the time he must have slipped.
Likewise, no such incident was reported to employer.
The alleged statements of Denny Marino are likewise unclear as
to whether his slip occurred during the mopping process and
whether the fall of Don Hale was related to a hazard in the cold
locker or to carelessness. (That Hale may have almost fallen in
the cold locker would be irrelevant to the citation which
alleges a slippery floor in a separate area.)
It is likewise unclear whether Everett Myers slip occurred
because of wet floor during cleaning or at some other time.
The other statements are unclear on the same points. Had
Plaintiff called the declarants as witnesses, the opportunity to
inquire as to whether the alleged slips were associated with the
hazard cited, would have perhaps afforded a basis for the
citation for failure to abate.
Plaintiff is required to prove the citation by a preponderance
of the evidence. It is clear that investigator based his
decision to cite Izzy's for failure to abate solely on the
hearsay statements of the employees, the hearsay statement of
Ron Vickers, and his interpretation of his discussion with Mr.
Cauthon.
The interview of Mr. Vickers is as equally amenable to an
interpretation of Vickers' personal frustration as evidenceof a
nonabatement. Clearly a statement that there is nothing they
could do to make the floor less slippery suggests that they have
explored all reasonable alternatives. The evidence supports a
finding that Izzy's explored various alternatives in an effort
address the slippery floor problem.
Mr. Cauthon's testimony at hearing would clearly establish that
Izzy's took corrective measures and abated the initial citation.
The investigator apparently was unaware of Izzy's postcard
notice of correction, as mention of same does not appear in the
investigative notes nor in his testimony.
On cross examination investigator acknowledged that the floors
were not slippery when the inspection upon which the citation
issued was conducted, that the slippery conditions occurred at
clean-up, and that clean-up would be when the floor was mopped
with a degreaser, after which the floor is rinsed, squeegeed,
and then rinsed and squeegeed again. He further testified that
he did not personally observe anyone slip during the time he was
on the premises. This testimony would establish that any
decision to issue a citation would have been based solely on
investigator's discussions with employees and management. As
found above, those statements do not rise to a preponderance.
Investigator further acknowledged that he had been advised that
removal mats had been tried and that different soaps and
degreasers had been employed. He was also aware that slippery
floors were addressed at a safety meeting. He stated that he
did not feel that such was germane in determining whether a
nonabatement had occurred, because "efforts are not solutions."
Certainly that statement would show that whether an abatement
had been made/occurred is entirely subjective.
The evidence preponderates that employer followed the procedures
adopted by OROSHA by filling out and mailing the postcard to
Plaintiff evidencing Izzy's abatement of the 1991 citation, that
OROSHA made no follow-up visit or otherwise advised Izzy's that
it considered its abatement solution inadequate, that
investigator did not find the floors slippery when he conducted
the investigation upon which the citation under consideration
here was issued, that he did not observe anyone slip during the
time he was on the premises. The evidence further preponderates
that employer set about abating the hazard of slippery floors
immediately upon issuance of the June 1991, citation. That
investigator found no evidence of a slippery floor condition
during his time on the premises in August 1992, would sugggest
that the condition had been successfully abated. That the slips
which the 7 employees alleged to have occurred were not reported
makes the allegation suspect. That investigator stated that he
did not consider efforts to abate to be germane, even though he
acknowledged that he found no evidence of slippery floors on
inspection, suggests an entirely subjective basis for the
citation.
As stated above, the evidence does not support a finding that
cemployer failed to abate the prior violation of OAR
437-40-065(3). Violation of OAR 437-40-050(1), failure to do
accident investigations:
Withdrawn by plaintiff at hearing.
Violation of OAR 437-02-040, 29 CFR 1910.36(b)(4), obstructed
emergency doors:
CFR 1910.36(b)(4) provides in relevant part:
"in every building...exits shall be so arranged and maintained
as to provide free and unobstructed egress from all parts of the
building or structure at all times when it is occupied..."
Investigator cited Izzy's for obstructing the emergency exit
with empty cardboard boxes. [See Exhibit 6, page 3.]
The investigator testified that he had determined the violation
class as serious based on his opinion that a loss of electricity
in a fire situation would cause exiting workers to stumble and
pile up in front of the door causing the potential of death by
suffocation.
Employer challenged the amount of the penalty over plaintiff's
objection that employer had challenged only the citation and not
the amount of the fine. Plaintiff's objection was overruled by
the referee.
On cross-examination investigator acknowledged that he was not
aware that the business premises are equipped with battery
operated lights required by the city code, which come on
automatically when the power is terminated. He further
acknowledged that he did not inquire as to the existence of
auxiliary power. Accordingly, the basis for investigator's
determination that severity was a risk that a substantial
possibility of death or serious physical harm would result
because employees could not see and would trip over the boxes,
is unfounded.
Although there is evidence that the boxes were in front of the
emergency exit door for only 30 minutes to one hour, the rule
specifically states that the exits are to be unobstructed "at
all times." Accordingly, I find that employer violated OAR OAR
437-02-040, 29 CFR 1910.36(b)(4), by obstructing the emergency
doors with cardboard boxes as shown in the photograph entered
into evidence as Exhibit 6, p 3, regardless of how fleeting the
obstruction.
Because investigator acknowledged that the boxes did not
interfere with operating the tripper bar which opens the door, I
find that the severity of the offense is low. OAR
437-01-140(1)(a).
The investigator properly found a low probability of injury.
OAR 437-01-135(1)(3).
From the penalty table (OAR 437-01-145) a low probability
coupled with a low severity results in a penalty of $0.00.
Violation of OAR 437-40-047(2), failure to hold July safety
meeting:
It is acknowledged that it failed to hold the July meeting.
There is no showing that a quarterly workplace safety inspection
was made during July, so as to excuse the meeting.
Since Izzy's was previously cited for violation of the
referenced standard in citation F2996-018-91, and the citation
affirmed due to the late appeal, the investigator properly found
this to be a repeat violation.
The penalty for a repeat violation is computed by increasing the
penalty for the first violation by 50%. OAR 437-01-165(1).
OROSHA cites OAR 437-01-203(7) as establishing a penalty of
$100.00 for failure to hold the monthly safety meeting. I
disagree. That section deals only with the penalty for failure
to "establish" a safety committee--a violation not alleged here.
OAR 437-01-165 is the only other section found dealing with a
penalty. Subsection (2) states that the total penalty for a
repeat violation shall not be less than $50.00.
Accordingly, that is the appropriate penalty.
ORDERS
NOW, THEREFORE, IT IS HEREBY ORDERED That:
1. That portion of Citation number G4174-014-91 which alleges
violation of OAR 437-40-050(1) for failure to install safeguards
or to take corrective measures, is withdrawn by plaintiff and
vacated and set aside.
2. That portion of Citation number G4174-014-91 which alleges
violation of OAR 437-40-065(3), for failure to abate the
slippery floors, is disapproved and set aside.
3. That portion of Citation number G4174-014-91 which alleges
violation of OAR 437-02-040, for failure to keep the emergency
exit door unobstructed is approved and affirmed as to the
violation of the safety standard, but modified to provide a a
low probability of injury and a low severity for a penalty of
zero dollars.
4. That portion of Citation number G4174-014-91 which alleges
violation of OAR 437-40-047(2), for failure hold monthly safety
committee meetings is approved and affirmed as to the violation
of the standard, but modified so as to provide for a penalty of
$50.00.
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 sixty (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 Eugene, Oregon, JULY 29, 1994,
WORKERS' COMPENSATION BOARD
George P. Livesley
Referee