BEFORE THE

STATE OF CALIFORNIA

OCCUPATIONAL SAFETY AND HEALTH

APPEALS BOARD


In the Matter of the Appeal of:

STEVE CHOATE
dba PAUL BUNYAN TREE SERVICE
and its successors
1658 Gillis Road
Stockton, CA 95215

                              Employer

 

Docket Nos.

01-R2D2-1764
and 1765

 

DENIAL OF PETITION

FOR RECONSIDERATION

The Occupational Safety and Health Appeals Board (Board), acting pursuant to authority vested in it by the California Labor Code hereby denies the petition for reconsideration filed in the above entitled matter by Steve Choate dba Paul Bunyan Tree Service and its successors (Employer).

JURISDICTION

On December 7, 2000, a representative of the Division of Occupational Safety and Health (the Division) began an accident investigation at 430 North Regent Street, Stockton, California, a site where Employer engaged in employment (the site).

On April 30, 2001, the Division issued citations to Employer alleging a serious violation of section 3381(a) [no head protection against flying wood logs]; and general violations of section 3421(a) [no accident prevention program complying with § 3203]; section 3421(c) [not documenting that worker was certified as trained in tree-work]; section 3421(j) [no established rescue and related CPR, First Aid, etc. training procedures]; section 3428(a) [no set of operating rules for tree-trimming]; and a regulatory violation of section 342(a) [not reporting serious injury to Division] of the occupational safety and health standards and orders found in Title 8, California Code of Regulations.1

Employer filed timely appeals contesting the existence and classification of the alleged violations and the reasonableness of the proposed civil penalties.

A hearing was held before Manuel M. Melgoza, Administrative Law Judge (ALJ) of the Board. Steven Choate, Owner, represented Employer. Mary A. Allen, Attorney, represented the Division.

On December 19, 2002, the ALJ issued a decision denying Employer’s appeals but reducing the total civil penalties from $14,400 to $11,550.

Employer filed a timely petition for reconsideration on January 17, 2003. The Division filed an answer to the petition on February 18, 2003.

EVIDENCE

Employer’s worker was killed after he was hit on the head by a cut log thrown to the ground by Owner Steven Choate (Choate), who was aloft in an aerial device at the time. The ALJ found that the injured worker, Juan Namowicz (Namowicz), was not wearing head protection when he was struck.

Linda Whittock testified that she is the owner of the house from which Employer was cutting three mature trees, all in the front yard area. She watched the entire operation first from a neighbor’s yard across the street when Choate and Namowicz were working on the first two cherry trees, and from a neighbor’s adjoining yard when they were working on the third (elm or ash) tree and described how Employer performed the work. Choate worked in an elevated position in a “cherry picker” (aerial lift) doing the cutting, and Namowicz doing clean up work by removing the branches and debris and putting them in a chopper machine behind a truck. She described the operation as noisy, given the operation of the power saw and the chopper. She noticed Namowicz used ear plugs. She testified that Choate would cut first the large outer branch sections from the trees, starting at the top, and then proceed to the tree center. The branches were dropped to the ground for transport by Namowicz to a chopper. Both men were working very hard when Choate tossed a log to the ground at a moment when Namowicz walked in to pick up debris. Namowicz did not see the log coming, was hit by the log and went down.

Namowicz died two days later from his injuries. The County Coroner’s report indicated that he died as a result of blunt cranial trauma.

REASONS FOR DENIAL
OF
PETITION FOR RECONSIDERATION

Employer petitions for reconsideration alleging in relevant part that:

1. He was denied a fair hearing because he was misinformed about the nature of the December 3, 2002, proceedings.
2. The Division’s investigating officer, who had died, was not present at the hearing.
3. “How can any employer know the laws if the State does not inform the business at hand…. [I]f one does not know the laws of OSHA and of California code, how can one be guilty of that said law.”
4. He did not testify because he did not understand he could plead the “fifth” [amendment] on some questions.
5. The ALJ believed the wrong witnesses.
6. Evidence of a previous case was erroneously admitted into evidence.
7. The decision would place a financial burden on the business which would result in bankruptcy.
8. He did not have a speedy hearing which caused great mental pressure, depression, diabetes, loss of work and anguish.

Labor Code section 6617 sets forth five grounds upon which a petition for reconsideration may be based:

(a) That by such order or decision made and filed by the appeals board or hearing officer, the appeals board acted without or in excess of its powers.
(b) That the order or decision was procured by fraud.
(c) That the evidence does not justify the findings of fact.
(d) That the petitioner has discovered new evidence material to him, which he could not, with reasonable diligence, have discovered and produced at the hearing.
(e) That the findings of fact do not support the order or decision.

Labor Code section 6616 provides that:

The petition for reconsideration shall set forth specifically and in full detail the grounds upon which the petitioner considers the final order or decision made and filed by the appeals board or a hearing officer to be unjust or unlawful, and every issue to be considered by the appeals board.

These requirements are mandatory. Louis G. Beary Plastering, Cal/OSHA App. 76-1296, Denial of Petition for Reconsideration (Nov. 14, 1977). Employer’s petition plainly failed to meet these statutory requirements. The Board has consistently rejected petitions that do not contain sufficient detail. (See, e.g., Lusardi Construction Company, Cal/OSHA App. 86-318, Denial of Petition for Reconsideration (Oct. 29, 1986); Paterson Pacific Parchment Co., Cal/OSHA App. 80-1238, Denial of Petition for Reconsideration (Apr. 22, 1981).) The Board stated the policy underlying this specificity rule in Lusardi Construction Company, supra, at p. 2:

Without specific and detailed allegations in the petition, there is nothing of substance for the Appeals Board to review and weigh against the judge’s findings and decision to determine whether or not to grant Employer’s petition for reconsideration.

Employer’s allegations lack the substance that the Board requires in order to grant relief. The petition contains numerous statements expressing general disagreement over both the conduct of the hearing proceeding and the ALJ’s findings. A petition for reconsideration, however, requires more than asserting such disagreement. No relief can exist without specific references to evidence supporting Employer’s position from the record and establishing a basis for reversing the ALJ’s decision based upon principles of law. (See § 391) In addition, Employer’s allegation that he didn’t know that he was attending a hearing is unpalatable in light of the fact that the document that informed him of the need to appear at the State Building in Stockton on December 3, 2002, at 9:00 a.m. is clearly entitled “Notice of Hearing” and clearly sets forth that the hearing involves the appeal in this case.

Additionally, we have held that appeals to the Appeals Board should be pursued by the appealing party with the degree of care a reasonably prudent person would undertake in dealing with his or her most important legal affairs and that it is incumbent that a party becomes familiar with the appeals process and requirements. (Timothy J. Kock, Cal/OSHA App. 01-9135, Denial of Petition for Reconsideration (Nov. 20, 2001).) This duty includes adherence with time requirements set by the Board during the appeal process and sufficiently preparing for the scheduled hearing regarding an appeal filed by an employer. Here Employer acknowledges he was unprepared for the hearing.

We have reviewed the record in this case and find the hearing was conducted fairly and impartially and that Employer’s allegations are without merit. Employer is not entitled to relief due to financial hardship because he has not established that his financial hardship, if any, comes within the perimeters we enunciated in Dye & Wash Technology, Cal/OSHA App. 00-2327, Denial of Petition for Reconsideration (July 11, 2001) The Bumper Shop, Inc., Cal/OSHA App. 98-3466, Decision After Reconsideration, (Sept. 27, 2001) and Eagle Environmental, Inc. Cal/OSHA App. 98-1640, Decision After Reconsideration (Oct. 19, 2001).


DECISION

The Board affirms the ALJ’s decision and the assessment of civil penalties totaling $11,550.

MARCY V. SAUNDERS, Member
GERALD P. O’HARA, Member

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
FILED ON: March 10, 2003

1 Unless otherwise specified, all section references are to Title 8, California Code of Regulations.