BEFORE THE WORKERS' COMPENSATION BOARD OF



                          THE STATE OF OREGON



                           HEARINGS DIVISION



Oregon Occupational Safety &                                    
     Health Division			)  Docket No:  SH-93242

	Plaintiff			)  Citation No.  H1069-070-93

					)

PACIFIC POWER				)

					)

	Defendant			)  OPINION AND ORDER



	Pursuant to notice, a hearing was held in the above matter on
May 24, 1995 in Salem, Oregon before Marilyn Nichols,
Administrative Law Judge. The Plaintiff, Oregon Occupational
Safety and Health Division (OROSHA), was represented by Thomas
Cowan, Assistant Attorney General. The Defendant, Pacific Power,
was represented by and through their attorney, Deborah Sather.
The hearing was recorded by Gina Freeman of Business Support
Services. The matter was continued for written closing argument.
Final argument was received on July 20, 1995 and the record was
then closed. 



	The following exhibits were admitted into the record: Exhibits
1-25.



                    EVIDENTIARY QUESTION



	During closing argument, Plaintiff quoted and relied on
statements from one of its witnesses, James Stickles, who works
for PUC as a utility analysts, a job he has held since 1981.
Prior to that date, he did work as a lineman. Defendant objected
to that reliance based on objections made at the time of the
hearing and the ruling of the ALJ, at the hearing, that certain
testimony would be excluded. A copy of the transcript of Mr.
Stickles' testimony was provided for review. 



	In response to questions by the Referee (ALJ) Mr. Stickles
acknowledged that he was not an expert on the job linemen do on
a day to day basis at the present time. (P. 9,  l. 14 transcript
of his testimony). Based in part on his acknowledgment as well
as the length of time he has been out of the business, and his
work primarily with a code that did not deal with the safety
regulations of linemen, the ruling was made that he was not an
expert in the area of enforcement of OROSHA's regulations and
Defendant's motion to strike was allowed as to any testimony he
gave regarding the rules and regulations of OROSHA. (P.11, l.
19-22 transcript of James Stickles). His testimony that was
directed to his opinion on the safe practices of linemen, that
was admissible, was based on his experience as a lineman up to
1981 and his limited exposure to the field since that time. 



                          ISSUES



	The Defendant requested the hearing to challenge Item 1-1 of
Citation No. H1069-070-93. The Defendant disputes that a
violation of OAR 437-50-010(1) occurred.



	The Defendant also challenges the classification and the
penalty assessed on Item 1-1.



                        FINDINGS OF FACT



	As a result of a Pre-Hearing Conference held on April 10, 1995,
the parties stipulated that the Defendant's request for hearing
was timely, that the Defendant was an employer subject to the
Oregon Safe Employment Act and that the referenced employee,
Robert Dorn, was wearing cotton gloves and a sweatshirt and, at
the time of the said employee's injury, the line was energized.



	Robert Dorn was injured on March 17, 1993 when he came in
contact with a 120 volt line while doing a routine procedure
installing a new street light. Dorn was working in a bucket,
that was not considered to be fully insulated. On the day of the
injury, it had been raining and there was water in the bottom of
the bucket. It was not raining at the time Dorn was injured. 



	To install the new street light, Dorn was required to complete
the hookup while the line was energized because traffic lights
were on the same line. It would have created unnecessary
inconvenience and possible danger to cut the power to the line
and thus to the traffic lights. The 120 volt line was considered
to be a low voltage line. Company rules do not require the use
of special gloves while working on 120 volt lines. The company
does have rules that require the use of rubber gloves on lines
of 600 volts or more and other rules regarding working on high
voltage lines. Generally, the lineman choose, on an individual
basis, to use rubber gloves on line in excess of 440 volts.
There are no specific OROSHA rules dealing with the wearing of
protective gloves for linemen working on 120 volt low voltage
lines.  



	To complete the transfer to the new light, Dorn was required to
splice the line, adding a connector, called a firecracker, to
the hot line. The procedure for completing this type of
connection is fairly routine and not generally considered to be
risky. The connector is then covered with a plastic boot. The
boot is taped in place and the hot line is then totally covered
and insulated, like a common extension cord would be. Handling
an insulated hot line is  considered to be no more risky than
handling an extension cord. 



	Dorn completed the splice, moved the boot into place, and taped
it down. Apparently, because of the dampness due to the rain,
the tape did not hold and when Dorn was doing the final wrap of
the hot line and the neutral line, he placed the hot line under
his arm and his left arm came in contact with the exposed
portion of the firecracker connector and his right arm
apparently came in contact with the neutral line. As a result he
was shocked as he became a conductor of electricity. Dorn tried
to get away from the line by dropping into the bucket. In doing
so he fell into about two inches of water. The line, however,
went down with him and the connection was not broken until the
bucket was lowered by his partner. Dorn was taken to the
hospital and remained there for a couple of days for
observation. There were no lasting injuries to Dorn from this
incident. 



	At the time of the accident, Dorn was wearing cotton gloves,
which is his standard glove while working on a low voltage line.
The gloves were wet as was the sweatshirt he was wearing at the
time. Cotton gloves and clothes do add a certain amount of 
insulating protection to workers when the weather is dry and are
considered safe because they do no burn easily if the lineman is
subject to an electrical flash. Additionally at the time of the
incident, Dorn was using insulated tools, to complete his job.
He using these tools he did not touch the hot line while making
the connection.



	There are no universally accepted industry wide standards
requiring the use of rubber gloves on all line work done on both
low and high voltage lines. There does appear to be such a
standard on lines of 600 volts or more. There are some companies
within the industry which appear to require the use of rubber
gloves or low voltage gloves in this situation. 



	Journeymen linemen are all experienced linemen. They are
generally left to their own discretion to determine when they
will use the rubber or low voltage glove. On lines that are
fully insulated, there is no need to wear rubber gloves because
there is no exposure. Some linemen work on these lines
barehanded. Rubber gloves are uncomfortable to wear as they are
hot in the summer and cold in the winter. Rubber gloves do
extend up the forearm to just below the elbow.



                       CONCLUSIONS OF LAW



Violation of OAR 437-50-010(1)



	Defendant contends that there was no violation of any safety
rule at the time of the accident to Robert Dorn. The rule cited
as the basis of the citation is as follows:



OAR 437-50-010(1) Protective equipment shall be provided and used to prevent injury or occupational illness wherever hazards from processes or environment cannot be contained or eliminated at their source.
Defendant contends that the injury was the result of a freak accident and the wearing of rubber gloves as protective equipment, would not have prevented the accident. OROSHA argues that because of the weather conditions, Dorn should have been using personal protection equipment, i. e. rubber gloves, in the performance of his duties. The rule cited is a general rule rather than an industry specific rule. OROSHA argues that this rule is applicable to this situation because the rainy weather created a hazard that could not be contained or eliminated and thus required special care. The rule requires that protective equipment shall be provided and used and that the use of this equipment is to prevent injury or illness. Violation of this rule in this matter is a question of fact. Protective equipment is not defined in the rules. The rule, however, does indicate that protective equipment includes shields, barriers, restraints and equipment for the protection of any part of the body. Other provisions of this rule make reference to equipment or clothing. OROSHA argues that to be considered as protective equipment, the item should be connected or attached to the employee's body. I disagree. Such an interpretation of the definition of equipment is too narrow and is not necessarily consistent with the rule which identifies shields or barriers as such equipment. The Defendant argues that the plastic boot that was installed over the connector was in fact protective equipment and if it had not failed to stay in place, there would have been no risk to the employee. I agree with the Defendant, protective equipment need not be only those items that attach to an employees body, but in this matter can include insulated tools, clothing and the plastic boot which was used, among other things, to prevent injury. Dorn was using protective equipment at the time of the accident. He was not using the specific protective equipment that the SCO believes he should have been using. OROSHA contends that Dorn was not using the proper protective equipment according to the industry standard for making a splice in an energized line under these adverse weather conditions. Tom Hoffman, the SCO who investigated this matter after the injury to Dorn had been reported, interviewed several people in the electrical transmission industry to establish that standard. The transcripts of those interviews are contained in this record. Generally the interviews were very short and the information given to the individuals called by the SCO were very limited. Even Defendant would agree that a lineman should not handle a hot line ( an energized line), directly, without some type of protective device. Beyond that general consensus, there was no clear universally accepted understanding of how to work on 120 volt line. It is also clear that, at the time of this accident, there was no clearance distance for working on 120 volt line. Clearance distance is the distance the worker must stand away from the line. Clearance distance, was only as issue because claimant place the insulated line under this arm when he was attempting to wrap the hot line and neutral line together after completing the connection. Again it only entered into the problem because the boot failed to stay in place. The weight given the opinions of the individuals questioned by Mr. Hoffman to establish the industry standard, is lessened by their lack of the facts as they relate to this case. They were not told that Dorn was handling the wire with his hands, only after the splice had been completed and the boot put in place and the hot line was considered to be totally insulated. They were not told that the accident happened because the boot slipped. They were not told that the actual contact with the energized line was in claimant's arms and occurred because the boot slipped and exposed the hot line. These are important facts to know when giving an opinion on what is the common and accepted practice of doing the work on a 120 volt line. Mr. Hoffman stated on cross examination that he did not think these questions were important or relevant in establishing the industry standard. Defendant argued that additionally because Mr. Hoffman identified Pacific Power as the company under investigation, and the individuals contacted by him were competitors of Pacific Power, that there was some bias. There was no showing of bias in this record and none will be assumed just because there is competition in the industry. It is the accepted standard of the industry that some protective equipment should be used when working on 120 volt line that is energized. Dorn used insulated tools when he was working directly on the hot line. He did not touch the hot line with his bare hands, nor did he touch the hot line with his cotton gloves. Once the splice was completed, he placed another protective device over it to cover and insulate the hot line. This boot covered the hot line so it was no longer exposed to present a potential hazard to the workman. An insulated and covered 120 volt line is much like an extension cord in that the metal conductor is completely covered and can be safely handled without additional protective devices being used. The line was fairly new and there was no evidence in this record that the insulation on the line itself failed. Consequently, I find that there was no violation of the cited rule. Because the citation is being set aside, there is no reason to discuss the classification of the violation nor the penalty imposed by the citation. Therefore, ORDER IT IS HEREBY ORDERED that Citation No. H1069-070-93 is set aside as no violation of that rule occurred as indicated. 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 14, 1995 Workers' Compensation Board Marilyn E. Nichols Administrative Law Judge