BEFORE THE WORKERS' COMPENSATION BOARD OF
THE STATE OF OREGON
HEARINGS DIVISION
Oregon Occupational Safety &
Health Division ) Docket No: SH 93202
Plaintiff, )
vs. ) Citation No: A8735-003-93
J. L. WARD CO. )
Defendant. ) OPINION AND ORDER
Pursuant to notice a hearing was held August 3, 1994 in Bend,
Oregon before Referee Howell. Plaintiff, Oregon Occupational
Safety & Health Division (OR-OSHA), was represented by Norman
Kelly of the Department of Justice. Defendant, J. L. Ward
Company, was represented by its president, J. L. Ward. The
hearing was recorded by Business Support Services. Exhibits 1-9
were received into evidence at hearing.
ISSUE:
The propriety of the penalty imposed upon defendant for
violation of 29 CFR 1926.500(d)(1).1 (In an April 9,
1993 citation, OR-OSHA imposed a $1,200 penalty for violation of
that regulation.)
1Neither the fact of the violation
nor the classification of the severity of the violation was at
issue.
FINDINGS OF FACT:
Defendant operated a business in Bend, Oregon. On March 18,
1993 employees of defendant worked on a steel deck at the top of
30 foot tall cylindrical tanks. A guard rail around the decking
on top of the tanks had a top rail, but no mid rail. The
employees working on the tank had no fall protection other than
the single top rail of the guard railing (Exhibits 2-7).
An OR-OSHA inspector observed defendant's employees working
without fall protection on the deck on top of the tanks on March
18, 1993. Because the employees did not have fall protection,
and because the guard rail on the tank did not comply with 29
CFR 1926.500(f)(1), defendant was found to have violated 29 CFR
1926.500(d)(1).2 The violation was classified as
"serious."3 The OR-OSHA inspector considered the
probability of an accident to be "low." Before the end of the
inspection defendant corrected the violation (Exhibits 1-5).
229 CFR 1926.500 has been adopted by
Oregon (the Department of Consumer and Business Services) by OAR
437-03-001(13)(a).
3Violations are rated by severity
based upon the degree of injury reasonably predictable. Ratings
include "other than serious," "serious physical harm" and
"death." The latter two ratings are referred to as serious
violations. OAR 437-01-010(53)(a)(A), 437-01-140 and
437-01-145.
On April 9, 1993 Citation A8735-003-93 issued, citing defendant
and imposing a penalty of $1,200. The penalty was determined
from a penalty schedule at Table 1 of OAR 437-01-145. The
penalty amount indicated by the table was reduced by 20 percent
because defendant corrected its violation before the end of the
OR-OSHA inspection. Other adjustments in penalties were found
to be inapplicable to the employer.4 (Exhibit 1).
4Violations are rated by severity
based upon the degree of injury reasonably predictable. Ratings
include "other than serious," "serious physical harm" and
"death." The latter two ratings are referred to as serious
violations. OAR 437-01-010(53)(a)(A), 437-01-140 and
437-01-145.
CONCLUSION:
OAR 437-01-145(1) provides:
"A penalty shall be assessed for any
serious violation by considering the penalty established by the
intersection of the probability rating and severity rating on
the Penalty Schedule (Table 1). In a case where probability and
severity are not appropriate considerations, a penalty may be
assessed by considering the facts of the violation."
The OR-OSHA inspector found that the probability of an accident
as a result of defendant's violation of 29 CFR 1926.500(b)(1)
was "low." That probability rating is the lowest available.
OAR 437-01-135. A "low" probability of accident results in the
least possible penalty for a given severity classification of a
safety violation. See OAR 437-01-145, Table 1.
Using a probability of "low" and a severity rating of "death,"
Table 1 of OAR 437-01-145 prescribes a penalty of $1,500. That
amount is reduced 20 percent, or $300, because defendant
promptly corrected its violation. See OAR 437-01-145(2)(b).
Pursuant to OAR 437-01-145, no other reductions in the penalty
are applicable. The correct penalty is $1,200. OR-OSHA
correctly computed the amount of the penalty assessed against
defendant.
Defendant makes several arguments in support of its position
that the $1,200 penalty assessed against it was disproportionate
to its safety violation. First, it argues that OR-OSHA's
determination of the amount of a penalty is arbitrary and
capricious. In support of its argument, defendant asserts that
a settlement offer was made to it during an informal conference
which would have reduced the penalty imposed in this case to
$600.
The determination of the amount of a penalty for a particular
safety violation is not arbitrary. Unless the probability of an
accident and the severity of a reasonably anticipated injury are
inappropriate considerations, 4 the amount of a
penalty is obtained from a table at OAR 437-01-145. The
mandatory use of such a table prevents arbitrary or capricious
variations between inspectors enforcing a broad range of safety
rules.
4See e.g. OAR
437-01-203.
Defendant has offered no argument as to how OAR 437-01-145, in
particular, has been applied arbitrarily.
The settlement offer made to defendant by an appeals specialist
was apparently made on behalf of the Administrator of OR-OSHA,
pursuant to OAR 437-01-255(2)(h). The fact that the
Administrator has extraordinary authority to resolve disputes by
settlement and by reduction of an assessed penalty does not
render arbitrary the penalty, imposed, pursuant to OAR
437-01-145.
Defendant argues that the three ratings for the probability of
an accident provided by OAR 437-01-135 are inadequate to
discriminate between varying likelihoods of an accident
occurring.
In this case, the probability of an accident was determined to
be "low," meaning ". . . it would be unlikely that an accident
could occur." OAR 437-01-135(3)(a). Defendant argues that an
even lower probability should be applicable to its violation.
If defendant believes that the administrative rule should be
amended to provide for a lower probability than presently
exists, it may request such an amendment pursuant to OAR
437-01-045(2). However, the validity of OAR 437-01-135 is
unchallenged. That rule was in effect at the time of
defendant's violation. That rule controls the determination of
the probability of an accident in this case.
Defendant's final argument is that in order for justice to be
done the referee presiding at hearings such as the present one
must have discretion to modify the penalties prescribed by OAR
437-01-145.
The Court addressed defendant's argument in Accident Prevention
Division v. Asana, 110 Or App 103 (1991). A referee has no
authority to impose penalties less than those provided for in
the applicable administrative rules.5
5The Administrator of OR-OSHA and the
Director of the Department of Consumer and Business Services
both have authority to modify a citation when no hearing has
been requested. OAR 437-03-265(1) and 437-03-270(2). The
Administrator may negotiate a settlement of a contested citation
in cases in which a request for hearing has been filed. OAR
437-01-255(1)&(2).
I conclude that the penalty assessed against defendant was
correctly computed and must be affirmed.
ORDER:
IT IS THEREFORE ORDERED that Citation A8735-003-93, issued
April 9, 1993, is affirmed in its entirety.
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, August 29, 1994
Workers' Compensation Board
John M. Howell
Referee