BEFORE THE WORKERS' COMPENSATION BOARD OF THE STATE OF OREGON HEARINGS DIVISION
Oregon Occupational Safety & Health Division ) Docket No: SH-93179 Plaintiff, ) CITATION NO: C5730-001-93 ) ) MODOC LUMBER CO., ) WITHDRAWAL OF AND REPUBLICATION Defendant ) OF ORDER OF DISMISSAL WITH ) SUPPLEMENTAL FINDINGS AND ) OPINION An Order of Dismissal was published on December 6, 1994 and on December 15 counsel for Modoc Lumber Company, George Goodman, submitted a motion for reconsideration requesting inclusion of additional findings of fact and opinion. Counsel for OR-OSHA, Assistant Attorney General Armonica Gilford, responded on December 27 and Mr. Goodman replied on January 5. I have evaluated the motion and response and based thereon and pursuant to my authority under OAR 438--85-870(2)(3)(4) I have concluded that (1) reconsideration should be allowed, (2) an additional exhibit should be included for purposes of Mr. Goodman's original motion to dismiss and (3) supplemental findings of fact and opinion are appropriate. The additional exhibit that I have concluded should be admitted is a November 23, 1994 fax transmission to me from Assistant Attorney General Armonica Gilford, which is hereby identified as Exhibit 30 and admitted.
SUPPLEMENTAL FINDINGS OF FACT
Mr. Menestrina's fatal accident occurred outside while he was driving his lumber carrier to the maintenance shop for repairs (Exhibits 5 (page 6), 22 (page 7)). Mr. Crawford did not identify his opening conference reference to the lock out/tag out program as part of the OR-OSHA inspection at that time or specifically identify the lock out/tag out program as a possible source of violations in any citation (Exhibits 5 (page 1), 22 (pages 1-4)). There is no evidence in the documents submitted by OR-OSHA prior to the hearing date that those people interviewed by Mr. Dixon and Mr. Crawford subsequent to the opening conference were not interviewed privately. Based on the employee interviews conducted by Mr. Dixon and Mr. Crawford subsequent to the opening conference they concluded that proper lock out/tag out procedures were not followed at different locations inside the employer's mill (Exhibits 4 (pages 2, 3, 4)). There is no evidence in the documentary exhibits pertaining to the investigation that Mr. Dixon or Mr. Crawford entered or attempted to enter inside the mill areas of the alleged lock out/tag out violations. In fact, there was no on-site physical inspection of those areas prior to issuance of the citation for lock out/tag out violations (Exhibit 30; OR-OSHA response to motion to dismiss, page 6 (lines 9-11). The three lock out/tag out violations described in the March 30, 1993 citation were related to conditions inside the mill (Exhibits 1 (pages 3-5), 4 (page 2-4)).
SUPPLEMENTAL ULTIMATE FINDING OF FACT
The employer did not consent to inspection of conditions inside the mill which bore no relationship to causation of the lumber carrier accident of October 5, 1992.
SUPPLEMENTAL OPINION
The general and specific questions addressed by Mr. Crawford and Mr. Dixon during apparently private employee interviews that clearly or even arguably could pertain to the fatal accident were certainly within the scope of the inspection that had been explained to the employer and to which the employer had consented. However, the specific questions asked by Mr. Crawford and/or Mr. Dixon during those employee interviews which pertained to the functioning of the lock out/tag out program were clearly outside the scope that had been explained to the employer at the opening conference and to which the employer had consented. Absent an opportunity by the employer's management and supervisory personnel to provide OR-OSHA information as to whether the employer did or did not have knowledge of the allegedly violative conditions and to participate in the investigation of allegedly violative conditions to determine if they existed at all, there could be no inspection that would determine if a violation had occurred. If the employer had been interviewed relative to knowledge regarding the lock out/tag out or chipper issues or had been requested to allow entrance into the mill by the compliance officers to inspect those conditions and the employer had remained silent, the failure to object, might be deemed to be consent. However, a statutorily authorized and therefore valid inspection was foreclosed because the employer was denied the opportunity to consent to an expansion of scope of the inspection.
ORDER
IT IS HEREBY ORDERED that the Order of Dismissal dated December 6, 1994 is withdrawn and republished as supplemented above. NOTICE TO ALL PARTIES: If you are dissatisfied with the 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, Oregon 97310, pursuant to ORS 183.480, 183.482. 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 a 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, January 6, 1995 WORKERS' COMPENSATION BOARD Philip A. Mongrain, Referee