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withdrawn) were admitted into evidence.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