BEFORE THE

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD

DEPARTMENT OF INDUSTRIAL RELATIONS

STATE OF CALIFORNIA

In the Matter of the Appeal of:

MASSIVE PRINTS, INC.

3280 Industry Drive

Signal Hill, CA 90806

                              Employer

 

 

Docket No.

98-R3D5-1789

 

DECISION AFTER

RECONSIDERATION

The Occupational Safety and Health Appeals Board (Board), acting pursuant to authority vested in it by the California Labor Code and having granted the petition for reconsideration filed in the above matter by Massive Prints, Inc. (Employer), makes the following decision after reconsideration.

JURISDICTION

From February 11, 1998 through April 29, 1998, the Division of Occupational Safety and Health (the Division), through Barry Blodgett, Associate Engineer-Compliance, conducted an inspection at a place of employment maintained by Employer at 3280 Industry Drive, Signal Hill, California.

On May 1, 1998 the Division cited Employer alleging a serious violation of section1 4002(a) [lack of machine guarding] and proposing a civil penalty of $4,000.

Employer filed a timely appeal contesting the existence of the alleged violation and the reasonableness of the civil penalty. Employer moved to expand its appeal to include the classification of the violation. Its motion was granted on January 20, 1999.

This matter came on regularly for hearing before Barbara E. Miller, Administrative Law Judge (ALJ). Employer was represented by Eugene R. Myers, Certified Safety Professional, Professional Engineer. The Division was represented by Barry Blodgett. The ALJ issued a decision on February 22, 1999 finding a serious violation of section 4002(a) and assessing a civil penalty of $4,000.

On March 19, 1999 Employer filed a petition for reconsideration. The Division filed an answer on April 14, 1999. The Board granted Employer’s petition for reconsideration on April 30, 1999.

EVIDENCE

Blodgett investigated an accident that occurred on June 16, 1997 in which an employee was injured. Blodgett testified that Employer operates a plant that produces tee shirts and sweat shirts by a silkscreen process. The silk screening process is carried out by several large machines.

Blodgett and the injured employee testified that the silkscreen machines have two sets of arms, both radiating from a common central hub. Each set of arms on the machine involved in the accident consisted of 14 individual arms.

One set of arms is stationary and sits directly above the other set of arms. Each arm in the upper set of arms applies either a color or infrared light to dry the ink.

Individual tee shirts and sweatshirts are placed on pallets on the lower set of arms. The lower set of arms rotates to bring the material being silk-screened to the stationary arms where the color or heat is applied.

The frame of the machine partially encloses the machine’s circumference, but leaves an opening between each pair of arms. The openings between the arms can be partially blocked by a rope barrier. The injured employee testified that the rope barrier had been moved from its normal position on the day of the accident so that it was possible to step between the arms into the machine’s circumference. He stepped between two sets of rotating arms and was struck by one of them, which slammed him against a stationary arm.

A set of mats wired to sense employee presence and stop the machine when an employee stepped on them was placed near the workstations where employees loaded and unloaded shirts off the pallets. There were no mats in the area between the arms where the injured employee stepped. The employee suffered injuries requiring surgery and a hospital stay exceeding 24 hours.

ISSUES

1. Was the citation issued within the time provided by Labor Code section 6317(a)?
2. Did the Division establish a violation of section 4002(a)?
3. Did the evidence establish that the violation was properly classified as serious and that the $4,000 civil penalty was reasonable?

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

1. The Citation Was Issued within the Time Provided by Labor Code Section 6317(a).

Employer contends that no violation can be found because the accident occurred on June 16, 1997, more than six months before the citation issued. Labor Code section 6317(a) requires that citations issue within six months of the occurrence of a violation. Employer, however, withdrew its appeal to the Division’s citation for violation of section 342(a), thereby establishing by operation of law that Employer failed to report the serious injury to the employee to the Division as required by section 342(a).

In Kaiser Foundation Hospitals, Hayward Medical Center, OSHAB 83-508, DAR (Nov. 19, 1985) we held that where an employer’s failure to report a serious injury deprives the Division of information that would enable it to issue a citation within six months of the occurrence of a serious injury that the Division need only issue the citation within six months of the date it learns of the occurrence of the injury. In this case, the citation was timely because it issued on May 1, 1998, less than six months after November 20, 1997, the date the Division was first informed of the accident. There is no evidence that the Division became aware of the accident by any other way. We find that the citation was timely issued.

2. The Division Established a Violation of Section 4002(a).

Section 4002(a) provides:

All machines, parts of machines, or component parts of machines which create hazardous revolving, reciprocating, running, shearing, punching, pressing, squeezing, drawing, cutting, rolling, mixing or similar action, including pinch points and shear points, not guarded by the frame of the machine(s) or by location, shall be guarded.

It was undisputed that the silkscreen machine was covered by section 4002(a), and therefore was required to be guarded. The ALJ found that the machine was not guarded as required by section 4002(a).

Employer states in its petition that it presented evidence that the machine was guarded and testified that the machine could not operate if the rope barrier was breached. We find that Employer’s contentions lack merit. All of the testimony in this case and almost all of the photographic and documentary evidence was presented by the Division. Employer’s representative made unsworn statements but never testified under oath or presented any documentary evidence to support the position that the machine was guarded and could not operate without the rope barrier. Before the end of the hearing, the ALJ informed Employer’s representative that unsworn statements could not be treated as evidence.

We find that the uncontradicted evidence establishes that the machine was not guarded on the date of the accident. A violation of section 4002(a) was established.

Employer contends that the ALJ should have discredited the injured employee’s testimony that he was struck by the machine because the Division presented no corroborating testimony. Corroboration is not required where a single witness is credited. (Evid. Code, §411.) In this case, there was no evidence contradicting the injured employee’s credible testimony that the rope barrier was not in place. The Board will not reverse an ALJ’s findings of fact where they are based on solid and credible evidence. (Lamb v. Workmen’s Compensation Appeals Bd. (1974) 11 Cal.3d 274.) The ALJ’s findings in this case are supported by solid and credible evidence, the testimony of the injured employee. As noted by the ALJ, Employer presented only arguments, but no evidence, in support of its position.

The Board finds that the Division established a violation of section 4002(a).

3. The Evidence Established That the Violation Was Properly Classified as Serious and That the $4,000 Civil Penalty Was Reasonable.

The ALJ found that the violation was properly classified as serious. The ALJ further found that the proposed civil penalty of $4,000 was appropriate because the employee was seriously injured as the result of the serious violation.

To establish that a violation should be classified as serious pursuant to Labor Code section 6432(a), it must be established that should an accident occur as a result of the violation, there is a substantial probability that death or serious physical harm could result from the violative condition, unless the employer did not and could not with the exercise of reasonable diligence, know of the presence of the violation.2

Employer’s only contention with respect to the ALJ’s holding that the injury was accident related is that the evidence supporting the ALJ’s finding is based solely on the injured employee’s testimony that he was in the hospital for more than 24 hours following surgery.

The machine’s unguarded arm did produce a serious injury to the employee who was exposed to it. The Board has recognized that when a serious injury occurs it is evidence that the violation of the cited regulation would more likely than not result in a serious injury. (See, e.g., Sierra Ready Mix, OSHAB 95-2453, DAR (Apr. 12, 2000.) We accept the fact that the employee suffered a serious injury as evidence that the violation of section 4002(a) was properly classified as serious.

The photographic evidence in the record shows that the silkscreen machine is approximately 30 feet in diameter. The injured employee testified that when it is operating, it prints shirts at a rate of 600 to 650 dozen shirts per hour. Because one shirt is placed on each arm and the machine has 14 arms, it would have had to rotate at least 10 times per minute through its entire circumference of approximately 100 feet. The size and speed of the machine, taken together with the serious injury that it produced when it struck the injured employee, provide sufficient evidence for the Board to find that an employee entering the machine’s field of rotation would more likely than not suffer serious injury.

The removal of the barrier rope was a condition that was plainly visible in the plant and therefore was a condition of which Employer could have been aware with the exercise of reasonable diligence. (Fibreboard Box & Millwork Corp., OSHAB 90-492, DAR (June 21, 1991).)

Employer presented no evidence contradicting the employee’s testimony that he was injured by the machine. The evidence shows that the impact of the lower arm on the employee who was exposed to it caused a serious injury, because the employee was hospitalized for more than 24 hours for purposes other than observation. Labor Code section 6302(h) defines a serious injury as one requiring "inpatient hospitalization for a period in excess of 24 hours for other than medical observation.”

The Board finds that the evidence establishes that the violation was properly classified as serious and that the serious violation caused a serious injury. Consistent with Labor Code section 6319(d), we find that the $4,000 civil penalty assessed by the ALJ was reasonable.

DECISION AFTER RECONSIDERATION

The decision is reinstated and affirmed. A serious violation is found to exist and a civil penalty of $4,000 is assessed.

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

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
FILED ON July 27, 2001

1 Unless otherwise specified, all section references are to Title 8, California Code of Regulations.
2 Labor Code section 6432(a) was amended effective January 1, 2000 with respect to the knowledge element by section 6432(b) which provides that a serious violation will not be deemed to exist if the employer can show that it did not know and could not have known, with the exercise of reasonable diligence, of the presence of the violation.