BEFORE THE WORKERS' COMPENSATION BOARD OF
THE STATE OF OREGON
HEARINGS DIVISION
Oregon Occupational Safety &
Health Division ) Docket No: SH-93276
)
Plaintiff, )
)
vs. ) Citation No: &6958-005-93
)
B&G EXCAVATION INC )
)
Defendant. ) OPINION AND ORDER
Pursuant to notice this matter was heard on July 12-13, 1995 in
Portland, Oregon before the undersigned Administrative Law
Judge. OROSHA was represented by Norman F. Kelley. The
employer, B&G Excavation, Inc, was represented by Gordon L.
Osaka. The proceedings were recorded by Sandy Madden of Harris
Reporting Services. The record was closed on September 14, 1995
after completion of written closing arguments from counsel.
ISSUES
The employer appeals Citation and Notice of Penalty
U6958-005-93 issued by OROSHA on June 22, 1993 (hereinafter the
citation).
On April 14, 1995, OROSHA and the employer participated in a
mandatory pre-hearing conference. A pre-hearing conference
order (PHCO) dated May 5, 1995 reflects the agreements and
understandings of the parties at said conference and is binding
on the parties. This PHCO is incorporated by reference herein.
EXHIBITS
Exhibits 1 through 30 (except Exhibits 21 and 24 which were
withdrawn) were admitted into evidence.
FINDINGS OF FACT/CONCLUSION AND OPINION
During the first week of May, 1993, a restaurant on the
northwest corner of Southeast Stark at Southeast 247th, City of
Troutdale, County of Multnomah, State of Oregon, was in the
process of being remodeled. The restaurant was closed and not
open for business during the remodel.
Southeast Stark at this intersection is a main arterial with
two lanes of traffic each going east and west plus a center turn
lane plus a bike lane (also referred to as the "fog line") on
the north side of the street. There are sidewalks on both sides
of the street with marked crosswalks crossing Southeast 247th.
There are traffic signals for both east and west bound traffic
and separate turn signals for traffic using the center turn lane
turning north and south onto Southeast 247th. Southeast 247th
to the south leads into a business development. Southeast 247th
to the north dead ends after a very short distance and appears
to serve as nothing more than access to and parking for the
restaurant being remodeled.
The employer was hired by the general contractor of the
restaurant remodel project to put in a sewer line running from
the restaurant in a southeast direction to a manhole located in
the crosswalk on the north side of Southeast Stark at Southeast
247th. The manhole touches the crosswalk marking on the south
side of the crosswalk. K.U. is the president and sole
stockholder of the employer. K.U. was raised on a farm and has
operated equipment all his life and has completed approximately
1,000 similar excavation projects.
During the late evening hours of May 4, 1993, the left turn
traffic signal loop wires (hereinafter turn signal wires) for
the intersection of Southeast Stark at Southeast 247th were cut
resulting in a malfunction of the Stark Street center lane left
turn signals. These turn signal wires were under the
jurisdiction of the County. This malfunction was brought to the
attention of the County electrician who in turn brought it to
the attention of the County right-of-way use inspector (T.D.)
early on May 5, 1993. T.D. then went to the intersection at
Southeast Stark at Southeast 247th to check out the situation.
After talking with K.U. it was determined that the employer did
not have a required permit from the County (claimant did have a
permit from the City of Troutdale). T.D. issued a "stop work"
order and directed K.U. to go and obtain a County permit. K.U.
then left to obtain a County permit. Because he suspected
several OROSHA violations, T.D. also called for an OROSHA
inspector. A safety compliance officer (SCO) arrived at the
employer's job site during the late morning/early afternoon of
May 5, 1993. Both T.D. (Exhibit 15-3) and the SCO (Exhibit 8)
took pictures of the employer's job site. There is also a short
video at Exhibit 13.
Based upon the observations of T.D. as related to the SCO and
based upon the SCO's own investigation, the employer was issued
the citation alleging eight item violations. The employer
admits that it was an employer subject to the Oregon Safe
Employment Act on May 5, 1993 and does not challenge the general
validity of the citation. Item 2-8 of the citation was
dismissed at hearing for the reasons stated on record and is not
further addressed in this Opinion and Order. The remaining
seven items of the citation along with additional findings of
fact applicable to all items are hereinafter discussed in the
order presented in the citation.
Item 1-1
Plaintiff contends that the employer violated OAR 437-03-001(29
CFR 1926.651(d)) which provides as follows:
"Employees exposed to public vehicular traffic shall
be provided with, and shall wear, warning vests or other
suitable garments marked with or made of reflectorized or
high-visibility material".
K.U., J.B. and R.R. were at the employer's job site when T.D.
arrived on May 5, 1993. It is not disputed that R.R. was an
employee of the employer. The employer does contend however
that J.B. was not an employee of the employer on May 5, 1993.
"Employee" is defined in pertinent part at ORS 654-005(4) as any
individual who engages to furnish services for remuneration,
financial or otherwise, subject to the direction and control of
an employer. After a complete review of the record, I conclude
that J.B. was an employee of the employer on May 5, 1993. J.B.,
who had worked for the employer before and who was on friendly
terms with K.U.'s sister, was dropped off at the job site that
morning seeking to earn some money while on leave from military
service. J.B. would not have worked without compensation,
expected to be paid for working and was paid for working for the
employer under the direction of K.U. on May 5, 1993. This was
not full time employment but temporary employment on a day to
day basis. These conclusions are supported by the testimony of
J.B., T.D., the SCO and the record as a whole. The employer's
apparent contention that claimant was not working and was just
visiting the job site on May 5, 1993 is rejected. Furthermore,
I agree with plaintiff that the temporary nature of J.B.'s
employment explains his absence from the employer's May, 1993
employment records.
Plaintiff contends that as an employee, J.B. was flagging on
Stark Street just east of the job site exposed to public
vehicular traffic without a warning vest or other suitable
garment marked with or made of reflectorized or high visibility
material. When T.D. arrived at the employer's job site, K.U.
was sitting on a backhoe that was positioned across the
crosswalk and bike path and extending somewhat into the adjacent
west bound lane of Stark Street in a southeast/northwest
direction in line with the open trench that had been excavated
for laying the sewer pipe and that ended at pavement level just
short of the northern line of the crosswalk. Southeast 247th
was blocked off by the nature of the work in progress but also
by safety cones and barricades with flashers. R.R. was in the
trench but on his way out. J.B. was standing in the bike lane
to the east of the backhoe approximately 3-4 feet off the curb
waving his arms for traffic moving in a westerly direction on
Stark Street to move over. J.B. was wearing a white T-shirt and
jeans with no hat and without anything in his hands. There was
a "workers" sign about the size of a stop sign on a barricade in
the bike lane some distance to the east of J.B. Traffic on
Stark Street heading in a westerly direction was traveling at
the normal speed limit of 45 miles per hour and was not slowing
down for J.B. although, because of the left turn signal
malfunction, traffic heading in a westerly direction on Stark
Street was caused to stop every two to three minutes even when
there was no traffic in the turn lane. These facts are
supported by the testimony of T.D., J.B.'s admissions to the SCO
(see Exhibits 4-1 and 3-1), J.B.'s testimony, in part, at
hearing and the actual physical nature and dimensions of the
employer's excavation project (persuasively detailed by the
plaintiff's calculations in its written closing arguments). In
short, T.D. saw J.B. in the bike lane trying to get traffic to
move over and J.B. admitted at hearing that he was out in the
street trying to get traffic to avoid the backhoe which was
extending "somewhat" into the northern lane of west bound
traffic on Stark Street. The nature of the employer's
excavation project at this point required a flagger and J.B. was
performing that function but without a warning vest or other
suitable garment marked with or made of reflectorized or high
visibility material. The employer's arguments to the contrary
are rejected and J.B.'s testimony at hearing that he was wearing
a reflector vest and hard hat and carrying a sign is similarly
rejected. I therefore conclude that J.B. was exposed to public
vehicular traffic on Stark Street and was not wearing a vest or
other suitable garment marked with or made of reflectorized or
high visibility material.
Based on all of the above, I conclude the plaintiff has proven
a violation of OAR 437-03-001 (29 CFR 1926.651(d).
Item1-2
Plaintiff contends that the employer violated OAR 437-03-001
(29 CFR 1926.651(i)(3)) which provides as follows:
"Sidewalks, pavements, and appurtenant structures
shall not be undermined unless a support system or another
method of protection is provided to protect employees from the
possible collapse of said structures."
When T.D. first saw (from approximately 20 feet away) R.R. in
the trench, R.R. was approximately waist deep and walking
rapidly (faster than a walk but not quite a run) in a
northwesterly direction on his way out of the trench. His
course out of the trench did not appear to be obstructed. R.R.
is somewhere between 5'2"-5'5" tall.
There is a rainwater runoff 12 inch sump pipe that crosses
through the open trench approximately 5-6 feet before the open
trench ends at pavement level. The open trench to the northwest
of the sump pipe varies in depth but no deeper than 4 1/2 - 5
feet (this portion of the trench is not the subject of this item
violation). The open trench to the southeast of the sump pipe
is approximately 9-10 feet deep and approximately 5-6 feet long
before extending another 4 feet or so under the pavement (coyote
hole) at about the same depth. The width of the trench is
constant at about 27-28 inches from the sump pipe to the end of
the coyote hole (approximately 2 feet from the manhole). The
pavement above the coyote hole had been cut in such a way as to
facilitate its removal to continue an open trench to the manhole
(see top of Exhibit 8-4 and bottom of Exhibit 8-5). There was
no support system, shoring, coffin or other method to prevent
collapse of the trench or coyote hole.
When T.D. arrived K.U. was not operating the backhoe but the
backhoe motor was running and the backhoe end of the backhoe
(there is a loader on the other end) was toward the trench.
Fresh dirt was off to the side of the trench.
Neither T.D. nor SCO saw any digging. There was a squared (not
pointed) shovel in the trench near the sump pipe but its exact
location (deep side versus shallow side) cannot be determined
based upon a preponderance of the evidence.
There is no dispute that the pavement from the southeast end of
the open trench to the manhole had been undermined by the cut
pavement and the four foot coyote hole. There is also no
dispute that there was no support system in place to protect the
deep end of the open trench and coyote hole from possible
collapse. The plaintiff concedes however that in order to
establish a violation of the rule cited, plaintiff must prove
that employees were exposed to unsafe conditions resulting from
the employer's failure to comply with the cited standard.
Employee exposure can be proven by actual or potential exposure
to a risk of injury. Plaintiff contends that R.R. and K.U. were
actually exposed to a risk of injury due to collapse.
Regarding R.R., plaintiff relies on the fact that R.R. and the
shovel were in the open trench, the SCO's opinion that the
coyote hole was dug at least in part by the shovel and the
reasonable inferences that can be drawn therefrom; in short,
that R.R. was in the deep end of the trench and in the coyote
hole using the shovel to dig out part of the coyote hole and
thus at risk of injury from collapse. The employer disputes the
plaintiff's position on all points. After a careful review of
the evidence I conclude that I must agree with the employer.
The plaintiff has concluded that R.R. was in the deep end of the
trench and in the coyote hole but the testimony of T.D. by
itself does not support that conclusion. T.D. saw R.R. hurrying
out of the trench but he also testified that R.R. was not below
waist level and his course out of the trench was unobstructed.
R.R. obviously could not have been in the deep end of the trench
and be observed at waist level and further would not have had an
unobstructed course out of the trench if he had to go from the
deep end to the shallow end over the sump pipe. Additionally
the employer contends that the deep end of the trench and coyote
hole were dug with the backhoe and not by shovel. I find the
employer's testimony on this point more persuasive than the SCO.
The employer demonstrated using a scale model how the deep end
of the trench and coyote hole was dug with the backhoe. The
employer's testimony on this point is supported by the
employer's years of experience performing similar excavation
projects, the scale model demonstration and the literature
describing the backhoe's features at Exhibit 27 (note digging
depth at page 3). Additionally although the shovel was in the
trench, I am not convinced that it was used by anyone to dig the
deep end of the trench or the coyote hole because its exact
location was not proven and it is the type of shovel with a
squared end that is more appropriate for clearing than digging
where you would expect a pointed shovel. The employer concedes
that R.R. was in the shallow end of the trench and contends that
his purpose was to be on the watch out for a lateral from the
manhole as K.U. was digging with the backhoe. On a more
probable than not basis I accept this explanation for the
reasons just stated.
Regarding K.U. the plaintiff contends that K.U. admitted that
he was in the coyote hole but claimed that it didn't matter
because he was the sole owner of the employer and therefore
exempt from this standard. The employer agrees that he had a
discussion with the SCO regarding whether or not he could go
into the coyote hole without violating the standard. Apparently
this was somewhat of a heated discussion (see Exhibit 5-3). The
employer however contends that K.U. never actually went into the
coyote hole and never said that he did. I can find nothing in
the exhibit record to corroborate plaintiff's contention that
K.U. actually said that he had been in deep part of the open
trench or the coyote hole. There is no dispute that the sewer
line was not yet ready to be hooked up to the lateral. On a
more probable than not basis I conclude that there was a heated
discussion between K.U. and the SCO about whether K.U. had a
right to go into the deep end of the trench and coyote hole but
I also conclude that K.U. never actually said that he went into
to the deep end of the trench and coyote hole and conclude in
fact that he did not do so. Therefore, I need not reach the
issue of whether or not K.U. was an employee of the employer for
purposes of this item violation.
Plaintiff contends that even in the absence of evidence that
R.R. (or K.U.) was actually in the deep end of the trench and
coyote hole plaintiff has still met its burden of proving
employees were potentially exposed to a risk of injury.
Plaintiff cites Accident Prev. Div. v. Stadeli Pump, 18 Or App
357 (1994). The Stadeli Pump case is similar to this case and
involved installing sewer lines and manholes. But in that case
there was some testimony that established the fact that workers
had been in an unshored trench before the inspection with the
court noting that other evidence may permit an inference that
an unshored trench is a place where employees are currently
working, although not present at the moment of inspection. See
case cited and discussed at page 8-9 of claimant's response to
defendant's closing argument. But I cannot infer based on the
record in this case that employees of the employer had been or
were currently working in the deep end of the trench and coyote
hole. The employer was excavating the deep end of the trench
and coyote hole with the backhoe. There had not been employee
exposure prior to T.D.'s arrival and "stop work" order. A
support system, shoring, coffin or other method of protection is
not required while the backhoe work is still in progress. You
can't do both at the same time.
Based on all the above I conclude that the plaintiff has not
proven a violation of OAR 437-03-001(29 CFR 1926.651(i)(3)).
Item 2-3
Prior to beginning excavation for the remodeled sewer line, the
employer notified a private utility notification/locator
system/service to locate and mark any utilities that might be in
the path of the proposed excavation. The county was not a
participating member of that system. The employer did not
notify the county of the proposed excavation although the
employer knew it was in the county. Prior to excavation the
utility locator service located and marked utilities for
participating members of their system. They did not mark and
locate the county's turn signal wires.
Prior to excavation the employer subcontracted the pavement
cutting above the proposed trench. The subcontractor cut the
pavement above the turn signal wires on May 4, 1993. The
employer excavated that portion of the trench also on May 4,
1993. The turn signal wires were cut on May 4, 1993 either
during pavement cutting by the subcontractor or excavation by
the employer.
There is no real dispute that the county was not notified prior
to the aforementioned pavement cutting and excavation. This is
in direct violation of ORS 757.551(1), applicable to the
employer pursuant to OAR 437-03-096. The citation also charges
the employer with a violation of ORS 757.566(4), also applicable
to the employer pursuant to OAR 437-03-096. Plaintiff's sole
contention under this statute is that the employer "did not
notify all appropriate local public agencies to insure public
safety". That statutory language from ORS 757.566(4) is only
applicable if the cutting of the turn signal wires caused an
emergency. "Emergency" is defined at ORS 757.541(3) to mean any
condition constituting an immediate danger to life or property,
or a customer service outage. There is no evidence that any of
these conditions resulted from the turn signal wire cutting.
Therefore because there was no "emergency" there can be no
violation of ORS 757.566(4) as quoted in the citation. There is
no evidence that because the traffic east and westbound on Stark
Street had to stop every 2-3 minutes because the left turn
signal was malfunctioning even though no vehicles were making
turns created any condition constituting an immediate danger to
life or property, or a customer service outage. Additionally
there is no evidence that a left turn signal malfunction equates
to a customer service outage.
Employer contends that the pavement cutting subcontractor and
not the employer is responsible for the violation of ORS
757.551(1). I disagree. That statute specifically applies to
excavators. Pursuant to the definitions at ORS 757.541(4) and
(5) an "excavator" is any person who engages in excavation and
excavation means any operation in which earth, rock or other
material on or below the ground is moved or otherwise displaced
by any means. A pavement cutting subcontractor does not move or
otherwise displace by any means earth, rock or other material on
or below the ground. It simply cuts a straight line down
through the pavement. Accordingly I need not reach the case law
discussion of whether claimant has met the requirements for
transferring responsibility for violation of this statute to the
pavement cutting contractor. In short, it doesn't make any
difference whether the turn signal wires were cut by the
pavement cutting subcontractor or the employer because if the
employer had notified the county prior to excavation, the wires
wouldn't have been cut.
Based on all the above, I conclude the plaintiff has proven a
violation of ORS 757.551(1) but not a violation of ORS 757.566
as stated in the citation.
Item 2-4
Pursuant to the PHCO the employer concedes the violation as
cited.
Item 2-5
The employer waived argument regarding the violation as cited.
Based upon the record as a whole and the plaintiff's closing
argument, I conclude that the plaintiff has proven the violation
as cited.
Item 2-6
During the employer's excavation work for the restaurant
remodeled sewer line on May 5, 1993 the employer parked its
company truck and topless trailer at the southeast corner of the
restaurant parking lot (see Exhibits 8-1 and 15-3). There were
three extension cords laying in the employer's trailer. They
were easily accessible to anyone who wanted or needed them. Two
of the extension cords had the ground prongs snipped off, while
the third had its ground prong in tact. Extension cords without
ground prongs did not have their ends cut off, did not have "do
not use" signs and were on, and not off, the restaurant
remodel/sewer line excavation job site. K.U. had previously
told his employees not to use the extension cords without the
ground prongs except for jobs that involved older homes with
only two pronged electrical outlets. There was no electrical
work required of the employer as part of the employer's
restaurant remodel sewer line excavation project.
Plaintiff contends that the employer violated OAR 437-03-001/29
CFR 1926.404(f)(6) which requires that equipment such as
extension cords have a grounding path that shall be permanent
and continuous. There is really no dispute that the two
extension cords without ground prongs violate this standard.
The employer argues however that this item violation should not
be upheld because the employer's sewer line excavation project
did not involve any electrical work, the employer told his
employees not to use the extension cords without ground prongs,
the extension cords without ground prongs were not in use and
even if electrical work had been required an extension cord with
a ground prong that did not violate this standard was available
for use if there had been any need for electrical work.
Plaintiff contends on the other hand that the standard has been
violated because the extension cords without ground prongs were
available for use because they were on the job site where anyone
could use them. Plaintiff basically concedes that if the
extension cords in question were not available for use then
there would be no violation of this standard. To not be
available for use plaintiff states that the employer must cut
off the ends of the extension cord or attach "do not use" signs
or take the extension cords off the job site and that the
employer's telling its employees not to use said extension cords
is not enough. Plaintiff's position is part of a directive from
Federal OSHA to OROSHA. This directive is not part of the
exhibits in this case and was not known to the employer prior to
citation.
Under the facts of this case I conclude that the employer has
not violated this standard. The extension cords without ground
prongs do violate the standard but the employer's excavation
project required no electrical work, said extension cords were
not in use and the employer had instructed its employees not to
use said extension cords. Furthermore, the employer had no
knowledge of OROSHA's unpublished disposition policy from
Federal OSHA. Under these circumstances I reject the
plaintiff's contention that said extension cords were available
for use.
Based on all of the above, I conclude the plaintiff has not
proven a violation of OAR 437-03-001(29 CFR 1926.404(f)(6)).
Item 2-7
The employer had plastic gas cans in the back of his pickup
truck, located as described in Item 2-6. There were two gallon
cans with one quart gas in each and a five gallon can that was
empty. There were also tools and other equipment in the back of
the pickup truck.
There is no real dispute that these gas cans violate OAR
437-03-001(29 CFR 1926.152(a)(1)) which requires approved metal
safety cans for the handling and use of flammable liquids such
as gas in quantities greater than one gallon. The employer
however contends that this rule is unconstitutional because it
focuses on what a gas can is made of and not whether that can is
safe. I cannot accept employer's constitutional argument.
Pursuant to ORS 654.285 said standard is conclusively presumed
to be reasonable and lawful and to fix a reasonable and proper
standard and requirement of safety and health. Moreover the
employer provides no significant and coherent argument
supporting its constitutional challenge. For all of these
reasons I decline to address the constitutional challenges
raised by the employer. Donna M. Schumann, 45 Van Natta 259
(1993) and cases cited therein.
To the extent that the employer is also arguing that the gas
cans were not available for use (see PHCO) that argument is
rejected. The gas cans are in a totally different position from
the extension cords without safety prongs discussed above. The
employer obviously needs gas to run his backhoe and operating
the backhoe was obviously an essential part of this sewer line
excavation project.
Based on all the above I conclude the plaintiff has proven a
violation of OAR 437-03-001(29 CFR 1926.152(a)(1)).
In summary, Items 1-1, 2-3 (violation of ORS 757.551(1) only),
2-4, 2-5 and 2-7 will be affirmed. Items 1-2, 2-3 (ORS 757.566
only), 2-6 and 2-8 will be dismissed. I now move to the proper
classification and penalty for each of the affirmed violations.
Violation/Penalty
Pursuant to the PHCO the only violation classification that is
disputed is the classification for the violation at item 2-3,
the employer's failure to notify Multnomah County prior to
excavation resulting in the cut turn signal wires and turn
signal malfunction at the intersection of Southeast Stark and
Southeast 247th. Under current classification terminology
plaintiff has classified this violation as other than serious
whereas the employer contends it is minimal. OAR
437-01-015(53)(a)(B) or (C). An other than serious violation is
a violation which is other than a serious violation or a minimal
violation. A minimal violation is a violation which does not
have a direct or immediate relationship to the safety or health
of employees.
The SCO concedes that there was no real hazard from the actual
cutting of the turn signal wires since the voltage involved was
very low. The SCO opines however that there was a probability
of increased exposure to the employer to vehicular traffic
hazards as a result of the turn signal malfunction. I disagree.
The intersection at Southeast Stark and 247 on the north side
where the employer was working was completely blocked off with
absolutely no traffic access. Additionally Southeast 247 on the
north side is a dead end serving as part of the parking lot for
the restaurant that was being remodeled that was closed for
business. Furthermore, the turn signal malfunction actually
served to slow down and cause traffic to stop on Southeast Stark
going east and west thus reducing, in my opinion, any traffic
hazards. In short, I agree with the employer that this
violation should be classified as minimal.
The employer contests the penalty for all of the affirmed
violations except for Item 2-5 where the penalty was zero.
Because the violation at Item 2-3 has now been classified as
minimal the penalty for that violation will also be reduced to
zero. Penalties are determined using a probability/severity
table. The probability rating deals with whether an accident
could result in an injury or illness from the violation at
issue: low equals unlikely; medium equals likely; high equals
very likely. The severity rating deals with the degree of
injury or illness which is reasonably predictable: other than
serious; serious physical harm; death. OAR 437-01-135 through
145.
Regarding Item 1-1 the SCO calculated the penalty based on a
probability of medium and a severity of death. In other words
that it was likely that J.B. could be killed because he was
flagging on Stark Street exposed to public vehicular traffic
without appropriate warning gear. The employer basically
contends that no one was exposed to vehicular traffic. That
position has been rejected. The penalty is more than
appropriate under the circumstances of this case.
Regarding Item 2-4 the employer conceded this violation which
involved having a trench shield on the job site that was
defective and not designed according to the applicable
standards. The SCO based a penalty on a probability rating of
medium and a severity rating of other than serious. The
severity rating is the lowest that can be given for this
violation and therefore cannot be adjusted any lower. The
employer appears to be contending that the probability rating
should be low since the trench shield was not in use and could
not in fact be used while K.U. was still backhoeing at the deep
end of the trench/coyote hole and therefore was unlikely that an
accident could result in an injury or illness. I am not
persuaded by the employer's position. It is clear the trench
shield was defective and not up to standard. It was also the
only trench shield on the job site and there was no evidence as
of May 5, 1993 that there was any other trench shield available
for use by the employer. If the employer needed a trench shield
for work or protection it would be likely that an injury or
illness could result. Therefore the probability rating of
medium was appropriate. The plaintiff's penalty for this
violation therefore also is appropriate.
Regarding Item 2-7 the violation dealing with the employer's
use of plastic versus metal gas cans the SCO's penalty is based
on a probability rating of medium and a severity rating of other
than serious. Again, the other than serious severity rating is
the lowest severity rating and therefore cannot be adjusted any
lower. The SCO's probability rating of medium was based on his
opinion that it would be likely that an injury would result from
tools and other equipment in the back of the employer's pickup
truck resulting in a puncture to the plastic gasoline cans.
There was no specific evidence however regarding how puncture
resistant or puncture susceptible the plastic gas cans were.
This is a question that requires some special expertise, in my
opinion. I cannot find that it would be likely versus unlikely
that the plastic gas cans were likely to puncture. There is
nothing in the background and expertise of the SCO to put his
opinion in any better position. Accordingly I conclude that
there is a failure of proof on the probability rating and that
that rating should be reduced to low. When a low probability
rating is combined with an other than serious severity rating
the resulting penalty is zero.
ORDER
Citation and Notice of Penalty U 6958-005-93 is hereby amended
as follows:
Item 1-1 standard violation is affirmed with a classification
of serious and a penalty of $2,250.00.
Item 1-2 standard violation is dismissed.
Item 2-3 standard violation regarding ORS 757.566 is dismissed
and standard violation regarding ORS 757.551(1) is affirmed with
a classification of minimal and a penalty of zero.
Item 2-4 standard violation is affirmed with a classification
of general/other than serious with a penalty of $135.00.
Item 2-5 standard violation is affirmed with a classification
of general/other than serious with a penalty of zero.
Item 2-6 standard violation is dismissed.
Item 2-7 standard violation is affirmed with a classification
of general/other than serious with a penalty of zero.
Item 2-8 is dismissed.
The total penalty for this citation equals $2,385.00.
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 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 Portland, Oregon, October 11, 1995
Workers' Compensation Board
Albert W. Hoguet
Administrative Law Judge