EXECUTIVE SUMMARY

OCCUPATIONAL SAFETY AND HEALTH
APPEALS BOARD

Summary of Art’s Trench Plate & K-Rail – Decision after reconsideration

Employer provides K-rails for freeway construction projects. While attempting to move a K-rail from a crane mounted to a flatbed truck, an employee was seriously injured when the crane tipped. The division cited employer alleging a serious violation of section 4999(a) [load size]. The board held that employer failed to meet its burden to prove the affirmative independent employee act defense [IEAD]. Also, contrary to employer's arguments, the board held that the hearing before the ALJ was properly conducted. The board is authorized by Labor Code section 148.7 to adopt its own rules and procedures independent of the Administrative Procedures Act except for sections referred to in Labor Code section 6603(a). Under Labor Code section 6604(a) the Appeals Board can order an ALJ to try issues of fact or law. Furthermore, Government Code section 11512(b) is inapplicable to appeals board proceedings. Employer’s motion for a continuance was properly denied under section 371(f). The board affirmed the ALJ's decision denying employer’s appeal and assessing a civil penalty of $10,800.

Art’s Trench Plate and K-Rail, 01-3734(MS Word)
Art’s Trench Plate and K-Rail, 01-3734 (Adobe Acrobat)
October 10, 2003