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