STATE OF CALIFORNIA
OCCUPATIONAL SAFETY AND HEALTH
In the Matter of the Appeal of:
ALUMINITE NORTHWEST, INC.
The Occupational Safety and Health Appeals Board (Board), acting pursuant to authority vested in it by the California Labor Code and having taken the petition for reconsideration filed in the above entitled matter by Aluminite Northwest, Inc. (Employer), under submission, makes the following decision after reconsideration.
On December 21, 1999, a representative of the Division of Occupational Safety and Health (the Division) conducted an accident inspection at a place of employment maintained by Employer at 2529 Mercantile Drive, #C, Rancho Cordova, California (the site).
On April 4, 2000, the Division cited Employer for an alleged serious violation of section 4002(a) [unguarded pinch/shear point] of the occupational safety and health standards and orders found in Title 8, California Code of Regulations.1
Employer filed a timely appeal.
On May 8, 2001, a hearing was held before Bref French, Administrative Law Judge (ALJ) of the Board, in Sacramento, California. Ronald E. Medeiros, Attorney, represented Employer. Christopher Grossgart, Staff Counsel, represented the Division. On June 13, 2001, the ALJ issued a decision denying Employers appeal. Employer filed a timely petition for reconsideration and the Division filed an answer.
Karen Antonson (Antonson), an associate Cal/OSHA engineer-compliance officer, testified for the Division that she conducted an accident investigation at a place of business where Employer manufactures screen doors and windows. During an opening conference with Wayne Lucas (Lucas), who identified himself as the general manager, Lucas told Antonson that Karl Mueller (Mueller) received crushing injuries on several fingers, and one finger was amputated, while working on a pneumatic powered rigging table. Mueller, when interviewed, told Antonson that he had been using the rigging table when his foot came off the foot pedal and he lost his balance. As he grabbed the edge of the table, the sliding arm returned to the starting point and amputated his finger.
When the operator depresses the foot pedal, it pneumatically activates a ram attached to the sliding arm, which moves down the table towards the framework and presses the pieces together. When the foot pedal is released, the sliding arm returns back down the table top towards the operator.
Antonson issued a citation to Employer for a violation of section 4002(a) because the action of the sliding arm as it returns down the open table-top framework creates a pinch-point when the arm slides by the edge of the table, which locations were unguarded. Antonson also believed that there is a potential pinch-point hazard from the open framework as the sliding arm moves forward even though the operators station is behind the arm. In her opinion, the injuries likely to occur from contact with the unguarded pinch-point would be an amputation or a crushing injury if a finger was between the edge of the table and the sliding arm when it returned. She has investigated similar unguarded shearing or pinch-point hazards where accidents have resulted in crushing or amputation injuries.
Mueller testified for the Division that he was working for Employer as an aluminum door fabricator at the time of his accident. Just prior to his injury, Mueller was extending the moveable press bar (sliding arm), which pushes against one end of the door, to its fullest extent by pressing the foot pedal under the material table with his right foot. While holding down the foot pedal, he leaned down to open the pneumatic valve (which was under the table at that time) with an Allen wrench so that he could move the sliding arm to the desired length. Since the valve was over-tightened, Mueller re-positioned the Allen wrench and gave it a yank which caused him to lose his balance. As he went over backwards, he either grabbed the edge of the metal bar, which stood up from the surface of the table, or the end of the sheet metal piece next to the operators position. Mueller was not sure if his finger went over the edge into the open space or if he just grabbed the edge of the table with the bar running across it, but the sliding arm came back up against his fingers since he had no time to remove his fingers.
Did the ALJ properly uphold the citation for a violation of section 4002(a) as serious and accident related?
FINDINGS AND REASONS
DECISION AFTER RECONSIDERATION
Employer files this petition for reconsideration and alleges that:
1. The ALJ improperly affirmed the citation as serious; and
2. The ALJ improperly classified the citation as accident related.
Employer argues that the Division failed to establish with substantial evidence that the alleged violation was more likely than not to result in a serious injury and also failed to establish that petitioner had either actual or constructive knowledge of the violation. Finally, Employer alleges that the Division failed to prove by a preponderance of the evidence that Mr. Muellers injury was caused by the alleged violation.
We have read and considered the decision of the ALJ and the record in light of Employers petition for reconsideration. We examined and analyzed Employers points discussed in the ALJs decision and we find no flaws in the application of facts to the law in this case. We affirm the ALJs summary of evidence, rulings, findings, and conclusions and adopt the decision in its entirety. Accordingly, the ALJs decision is attached hereto and incorporated herein by reference.
We therefore find that sufficient evidence was presented by the Division to establish the elements of the violation. We also note that the most logical inference from the evidence presented at the hearing was that Employer knew or should have known of the violative condition of the table and that the injury was caused by the violative condition and thus, was accident related.
DECISION AFTER RECONSIDERATION
The Board affirms the ALJs decision and the assessment of a $5,000 civil penalty.
MARCY V. SAUNDERS, Member
GERALD P. OHARA, Member
OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
FILED ON: September 25, 2002
1 Unless otherwise specified all references are to sections of Title 8, California Code of Regulations.