BEFORE THE

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD

DEPARTMENT OF INDUSTRIAL RELATIONS

STATE OF CALIFORNIA

Before the Occupational Safety and Health Appeals Board (Board) is a decision dated June 21, 1999, by an Administrative Law Judge (ALJ) of the Board, finding a serious violation of section 1675(j).

JURISDICTION

A hearing was held in San Diego, California. Cheryl K. Evans, Director of Administration and Consultant, and Robert Davison, Jr., President, represented Employer. Leonard Strom, Staff Counsel, represented the Division.

On July 26, 1999, R. D. Engineering and Construction, Inc. (Employer) filed a petition for reconsideration. The Division of Occupational Safety and Health (the Division) filed an answer on August 30, 1999. The Board granted Employer’s petition for reconsideration on September 10, 1999.

BACKGROUND

Employer was the general contractor for the renovation of a Rite Aid store in El Cajon, California. The Division alleged that Employer violated section 1675(j) by permitting an employee to use a portable “extension” ladder which was not tied, blocked or otherwise secured to prevent it from being displaced.

On March 4, 1998, employee Mark Brugman was working alone in the storage area. Electricians for one of the subcontractors asked him to examine the roof platform for an air conditioning unit. To reach it, Brugman climbed a 10' to 12' wooden A-frame ladder, which belonged to Rite Aid, to an open mezzanine, 8' to 9' 7'' above where he was. The supporting legs of the ladder had not been opened and extended; nor had the ladder been tied, blocked or otherwise secured. As Brugman began to descend the ladder on the way back from the roof, its unsecured base slid out, and he fell. He was hospitalized for more than 48 hours.

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

We have read and considered the decision of the ALJ and the record in light of Employer’s petition for reconsideration and find no errors in the logic or application of the law to the facts of this case. We therefore affirm the ALJ’s summary of evidence, rulings, findings, and conclusions and adopt the decision in its entirety. Accordingly, the ALJ’s decision is attached hereto and incorporated herein by reference. We also make the following findings.

Employer was cited for a violation of section 1675(j) which requires that portable ladders in use be tied, blocked or otherwise secured to prevent their being displaced.

During the hearing Employer did not contend that the ladder was properly secured, rather, it argued that the violation was the result of an independent employee act. The matter was fully litigated by the parties and the ALJ found that a violation had been established. We adopt the ALJ’s findings and reasons for decision and incorporate them by reference into this Decision After Reconsideration.

In its petition for reconsideration, Employer contends that the decision is improper because the ALJ acted in excess of his powers by:

“Creating a defense in this case for the Division and introducing it in his decision” by citing case law in the Decision which was not presented by the Division.

Employer also contends that new evidence shows that a man lift was present in the work area. Employer states that: “This is relevant as it rebuts the statement that a man lift did not exist and was not available for use”.

Employer also claims that Tim Montgomery, Employer’s superintendent did not see the ladder the day before the accident because, “we had just cut that portion of the mezzanine back.”

Employer further asserts that the “ladder [was the] property of Rite Aid, not Employer. No knowledge until after injury”.

We reject Employer’s assertion that the ALJ acted improperly by citing case law in the decision, which was not cited by the Division. The Appeals Board is an independent adjudicatory agency responsible for resolving appeals from citations. (Rick’s Electric, Inc. v. California Occupational Safety and Health Appeals Bd., (2000) 80 Cal.App.4th 1023, 1027)

We noted in HFS Investments, Inc. dba Hadley Auto Transport, Decision After Reconsideration 96-3079 (June 6, 2001) that:

Determining if and how the law applies to the facts of a case is one of the Appeals Board’s principal statutory duties. Frequently, parties do not brief appeals. When they do, there is no assurance that they will find and elect to cite all cases that an ALJ should consider to make the best-informed, independent determination of the law that applies to the facts of the case.

The parties are provided due process concerning the ALJ’s determination of the law of the case by the requirement that the ALJ explain the reasons for his or her legal determinations in a written decision (Labor Code §6608), and by the right of parties to challenge those determinations by petitioning for reconsideration (Labor Code §6614(a)).

We have independently reviewed the findings and legal analysis of the ALJ in this case and find that the cases cited to support the decision are appropriate.

Employer contends that new evidence shows that a man lift was present in the area and that this is relevant as it rebuts a statement that a man lift did not exist and was not available for use.

The Division moves to strike the new evidence, because “this evidence was readily available to Employer before hearing”. Employer submitted an invoice for the rental of a 3015 Skyjack dated March 5, 1998, the day after the accident. The customer is listed as R. D. Engineering and Construction, 1660 N. Magnolia, El Cajon, California 92020. The invoice listed the rental location as 400 N. Second, El Cajon. We note that the invoice, which Employer alleges is “new evidence”, should have been available to Employer at the time of the hearing. For reasons only clear to Employer, Employer chose not to introduce it at the hearing. We also note that the invoice appears to be for a different time and date than the March 4, 1998, 6:00 p.m. to 6:00 a.m. shift during which the accident occurred.

The purported “new evidence” is not relevant because the presence of an alternative means of access to the roof platform would not void the violation. Additionally, we decline to consider it at this time because we find that the evidence was available to Employer prior to the hearing. (§390.1(a)(4))

Employer’s other contentions essentially deal with a reiteration of evidence either presented at the hearing or which could have been presented during the hearing. The ALJ’s reasons for decision fairly and adequately addressed all of the evidence presented at the hearing.

DECISION AFTER RECONSIDERATION

The Board affirms the ALJ’s decision finding a serious violation of section 1675(j) and assessing a civil penalty of $3,000.

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

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
FILED ON: August 29, 2001