BEFORE THE WORKERS' COMPENSATION BOARD OF



                          THE STATE OF OREGON



                           HEARINGS DIVISION



Oregon Occupational Safety &                                    
      Health Division			)  Docket No:  SH-93106

	Plaintiff,			)

		vs.			)  Citation No:  L6260-015-93

TOM BLAYLOCK,  INC.			)

	Defendant.			)  OPINION AND ORDER



	Pursuant to notice a hearing convened May 9, 1994 in Salem,
Oregon before Referee Michael V. Johnson and was recorded by
Marlene Cromwell of Business Support Services.  The Plaintiff,
Oregon Occupational Safety and Health Division (OR-OSHA) was
represented by certified third-year law student Christopher
Burke.  The defendant, Tom Blaylock, Inc., was represented by
Attorney James R. Watts.  The record closed at the conclusion of
the hearing.  



                         ISSUES



	Whether the employer violated OAR 437-03-001 in that first aid
supplies were not easily accessible when required.  If so,
whether the $500.00 penalty is reasonable and correct.  



	Whether the employer violated OAR 437-56-050(1) in that all
vehicles were not kept in safe operating condition because the
rubber nonslip pad was missing on the break pedal of an
employer's vehicle. 

 

                         FINDINGS OF FACT



	The employer operates a roofing and sheet metal contracting
service.  During the process of forming and installing seamless
gutters, employees are exposed to sharp edges of the metal
gutter material, and are required to use ladders and work at
roof heights.  The employer uses approximately fourteen vehicles
in its business.  All the vehicles are provided with first aid
kits and there is a monthly check of all vehicles, and a daily
check of vehicles in use, to ensure that the appropriate first
aid kit is in each vehicle.  



	However, on December 11, 1990, the employer was cited by
OR-OSHA for failing to have first aid supplies readily
accessible on a job site.  The citation was not appealed and
became final by operation of law.  



	On October 16, 1991, the employer was cited by a safety
compliance officer while a crew was re-roofing a motel in
Lincoln City, Oregon.  The company vehicle did not have a first
aid kit aboard and a citation was issued.  On May 22, 1992, the
citation was affirmed.  



	On December 14, 1993 the first aid kit aboard vehicle number 14
was checked and restocked by a commercial organization.  (Ex.
A).  On the evening of December 28, 1992, truck number 14 was
inspected at the company premises and a first aid kit was
aboard.  (Ex. B).  



	On December 29, 1992, the employer was installing seamless
gutters on a newly constructed home in Stayton, Oregon.  There
was no first aid kit at the site, nor was there any in the
company vehicle number 14 parked at the site.  There were two
employees on the site.  The employer, and the employees, thought
there was a first aid kit in the pickup.  However, there was
none.   The weather was wet and there was mud and water around
the job site.  At the time pickup number 14 was inspected, the
rubber pad for the break pedal was missing.   



	The Stayton Hospital is approximately three-quarters of a mile
from the construction site and medical treatment, including
first aid, is available there.  There is a county sheriff's
office approximately two blocks from the construction site.  It
is reasonably to be expected that first aid supplies and
treatment are available at the sheriff's office.  



                         OPINION



First Aid Kit



	The hazards associated with not having ready access to first
aid supplies range from those arising from the most minor of
accidents to those arising from the most serious of accidents. 
In the event of a fall or serious laceration, first aid would be
immediately required and during the length of time required for
someone to travel two blocks to the sheriff's office, explain
the emergency, obtain first aid materials, and then return to
the site of the hypothetical injury, serious physical
consequences could ensue which would have been obviated had the
emergency medical care been available instantly.  The same is
true of traveling across town to a hospital nearly a mile away. 
On the other hand, the work of installing sheet metal parts,
including rain gutters, constantly exposes workers to the
smaller sorts of injuries such as nicks and gouges and slices. 
That is demonstrated by the fact that when the first aid kit on
the vehicle was recharged in mid-December, 1992, it was those
items normally associated with minor injuries which had to be
replaced, to wit:  "knuckle bandages", and "antiseptic swabs"
and two different types of bandages.  (Ex. B).  Clearly there is
a continuing demand for those minor sorts of first aid.  In the
event those minor problems are not immediately addressed, there
is a possibility that complications, including infection, may
speedily result.  However, when the injury is relatively minor,
it would be unusual for the worker to drive all the way to the
hospital and then endure the interminable wait required at a
hospital emergency room, not to mention the high cost thereof,
and the same is probably true in relation to a worker with a
"mere" nick traveling two blocks to the sheriff's office and
explaining the problem and obtaining first aid attention. 
Actually, most workers will probably simply tough it out and not
obtain medical care unless there are Band-Aids and antiseptic
swabs immediately adjacent to the site of the injury. 
Therefore, lack of immediately accessible first aid supplies
complicates both the least and the greatest of potential job
injuries.  



	The employer, quite foreseeably, argues that first aid supplies
were easily accessible when required, and points to the nearness
of the hospital and the proximity of the sheriff's office. 
However, many minutes would pass if an employee either had to be
taken to the sheriff's office for first aid or if the employee
were unable to travel without first aid, many minutes would pass
while the employee lay at the site of the injury while another
employee scurried to the sheriff's office, made arrangements and
returned with available supplies.  The timing of the situation
is seriously aggravated when one considers the time it might
take to travel three-quarters of a mile across town to the
hospital.  I find that first aid supplies situated at those two
locations were not easily accessible when required.  It is true
that this particular question is a "judgment call", which must
be decided on a case-by-case basis, but I note that in the
Federal application of the same safety regulation, an employer
was held to have violated the standard when the employer had a
first aid kit in the same building, however it was three story
building, together with a basement, and for a worker on the
third story, a first aid kit in the basement was not easily
accessible.  Larene Electrical Company, 8 OSHC 1771 (June 23,
1980).  



	The employer, quite honestly, points out that there was a first
aid kit in that vehicle the preceding evening.  The employer
argues that someone must have stolen the kit or that for some
other totally unanticipated and unforeseeable reason, the kit
was not on site.  However, this is the third time this
particular employer has had this exact safety problem, and it
behooves every employer, particularly this employer, to
double-check that safety appliances are in place.  



	In the event that no first aid kit is available there is
actually a low probability that an accident would occur as a
result and the probable severity of an accident in the event one
were to befall, would be "other than serious".  In normal course
that particular mix of probabilities would generate a penalty of
"0" dollars per OAR 437-01-145 (table 1).  However, this is the
third time the employer has violated that particular safety
standard, and in the parlance of the Oregon Occupational Safety
and Health code OAR 437-01-165, it constitutes a "second
repeat", and according to OAR 437-01-165(3) "For a repeated
other than serious violation that otherwise would have no
otherwise would have no initial penalty, a penalty of $200.00
shall be assessed for the first repeated violation, $500.00 if
the violation has been cited twice before * * * ".  Therefore,
an appropriate penalty is $500.00.  The employer is not entitled
to any reductions, therefore the final penalty is $500.00.  



Break Pad



	When there is no rubber cap on a metal break pedal, there is
always the possibility that a booted foot will slip from the
break pedal, especially when there is mud or other moisture
around the job site and on the worker's feet.  Again, though the
absence of a break pedal seems to be a fairly innocuous thing,
it can lead to serious results.  



	The testimony of the employees in relation to the missing brake
pad cover was that it kept falling off.  I find that, therefore,
the employer was on notice that a potentially hazardous
condition was occurring from time to time, and yet the employer
did not take such steps as would have been required to guarantee
that the rubber cap was never absent from the brake pedal. 
Therefore the employer had knowledge of the potential hazard. 
There is danger when stepping onto a slick metal brake pedal
without the benefit of a rubber pad.  There was a low
probability that an accident would happen and if one happened,
it would be the likely consequences of "other than serious". 
According to the appropriate penalty matrix, the penalty in this
case is "0".  



                         ORDER



	NOW, THEREFORE, IT IS HEREBY ORDERED that the citation
optional report number L6260-015-93, issued January 28, 1993, is
hereby 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,  February 22, 1995	



				Workers' Compensation Board

				Michael V. Johnson

				Referee