BEFORE THE

STATE OF CALIFORNIA

OCCUPATIONAL SAFETY AND HEALTH

APPEALS BOARD

In the Matter of the Appeal of:

DENNIS J. AMOROSO CONSTRUCTION CO., INC.

70 Gold Street

San Francisco, CA 94133 - 5103

                              Employer

 

 

Docket No.

98-R1D2-4256

 

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 petitions for reconsideration filed in the above-entitled matter by Dennis J. Amoroso Construction Co., Inc. (Employer), and by the Division of Occupational Safety and Health (the Division) makes the following decision after reconsideration.

JURISDICTION

The Division cited Employer for exposing its employees to a roof opening that was not guarded either by railings or a secured cover marked to warn employees that there was an opening under the cover, as required by section 1632(b)1. The violation was classified as serious and a $5,000 civil penalty was proposed.

Employer appealed the citation. An administrative law judge (ALJ) of the Board heard the appeal on August 8, 2000. On September 6, 2000, the ALJ issued a decision that reduced the penalty by 20% to $4,000, based upon the finding that the extent rating of the violation should be decreased, but otherwise denied the appeal.

On October 11, 2000, Employer petitioned the Board for reconsideration of the ALJ's decision that the violation was correctly classified as serious, and the Division petitioned for reconsideration of the ALJ's decision to reduce the penalty. On November 15, 2000, the Division answered Employer's petition. On November 30, 2000, the Board issued an order granting both petitions and staying the ALJ's decision pending reconsideration2.

EVIDENCE

Employer, a contractor, was engaged in the construction of a building that was part of the San Jose Repertory Theater. On July 8, 1998, Employer's labor foreman, Randy Greer, assigned three laborers to clear the roof of scrap lumber and other materials left there by a subcontractor. The roof was 19 feet above a compacted earth surface. One of the laborers, Jose Catarino, fell through a 3' x 3' roof opening that had been covered by a subcontractor with a 4' x 8' sheet of unmarked, unsecured plywood, and died as a result of the fall.

ISSUES

1. Did the Division prove it was substantially probable that the violation could result in death or serious physical harm?

2. Did the Division prove that Employer knew of the violation or could have known of it by exercising reasonable diligence?

3. Did the ALJ have the authority to reduce the penalty?

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

In 1998, when this violation occurred, Labor Code section 6432 read, in pertinent part, as follows:

(a) As used in this part, a 'serious violation' shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a…condition which exists…in the place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.

When section 6432(a) read as quoted above, the Board held that the Division had the burden of proving both the substantial probability of serious physical harm and actual or constructive employer knowledge of the violation to establish that a violation was serious. (See Mladen Buntich Construction Co., Cal/OSHA App. 85-1489, Decision After Reconsideration (Sept. 14, 1988).) 3

1. The Division Proved that Serious Physical Harm or Death was Substantially Probable.

"Serious physical harm" is equivalent to "serious injury or illness", as that term is defined in Labor Code section 6302(h). (Abatti Farms/Produce, Cal/OSHA App. 81-256, Decision After Reconsideration (Oct. 4, 1985).) The definition provides, in pertinent part, that:

'Serious injury or illness' means any injury or illness occurring in a place of employment or in connection with any employment which requires inpatient hospitalization for a period in excess of 24 hours for other than medical observation or in which an employee suffers loss of any member of the body or suffers any serious degree of permanent disfigurement….

Under this definition, a work related injury "which requires inpatient hospitalization for a period in excess of 24 hours for other than medical observation" is "serious physical harm." Thus, to establish the first element of a serious violation in this case, the Division had to prove it was substantially probable or "more likely to be expected than otherwise" (Pacific Steel Casting Co., Cal/OSHA App. 79-1514, Decision After Reconsideration (Nov. 15, 1984).) that, by falling 19 feet onto a compacted earth surface, an employee would be so injured that he or she would have to stay in a hospital for more than 24 hours for purposes other than simply being observed and monitored for indications of physical harm.

Employer alleges that the Division failed to meet that burden because the Division's only evidence was "the inspector's personal opinion" that there was a substantial probability that a fall of 19 feet could result "in broken bones, disfigurement, or loss of life," and the inspector was not a medical expert whose opinion on that subject may be relied upon as evidence.

We disagree with Employer's assessment of the sufficiency of the evidence for several reasons.

Labor Code section 6603 requires the Board's rules of practice and procedure to be consistent with, inter alia, Government Code section 11513, which provides, in part of subsection (c), that, "Any relevant evidence shall be admitted if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rule which might make improper the admission of the evidence over objection in civil actions." The second sentence of section 376.2 [Evidence Rules.] of the Board's rules of practice and procedure is identical.4

Furthermore, even under Evidence Code section 800, a lay or non-expert witness may testify in the "form of an opinion" if the opinion is, "(a) Rationally based on the perception of the witness; and (b) Helpful to a clear understanding of his testimony."

The record does not disclose whether the inspector's testimony in the form of an opinion concerning the substantial probability of serious physical harm is "rationally based on…[his] perception" of the circumstances under which the employee fell to his death in this case or perceptions he gained investigating other fall accidents. To the extent that it was based upon the circumstances of this case, it would have been admissible, and could support a finding of fact, in a civil proceeding.

Employer did not object to the opinion form of the inspector's testimony at the hearing and did not, through voir dire or cross-examination of the inspector, show that there was any "perception" basis for the testimony.

Under these circumstances, it would be inappropriate for the Board to reopen the hearing to inquire into the foundation or basis for the inspector's opinion-form testimony, or to decide this reconsideration on speculation about the basis for his testimony. Accordingly, we find that the ALJ was entitled to rely on that testimony in finding that serious physical harm was substantially probable.

The inspector's testimony is not the only evidentiary support for the finding. The employee died in a manner that supports the inference that he died as a result of falling 19 feet through the roof opening to the compacted earth below. His death, the ultimate "serious physical harm", is evidence that such falls more likely than not produce injuries that are at least severe enough to require medical treatment with hospitalization for more than 24 hours.

We note also that section 1670(a) requires that "employees whose work exposes them to falling in excess of 7½ feet…through…openings…[and who are] not otherwise adequately protected under the provisions of these Orders" must use an approved personal fall protection system. It is presumed that the Standards Board would not require fall protection at 7½ feet unless it had determined that employees could be injured in falls from that height. (Evidence Code § 664) This violation exposed employees to the hazard of falling 2½ times further. We conclude from these facts that the 19-foot fall distance is evidence to support the inference of a substantial probability that the violation could result in serious physical harm.

2. Employer Knew of the Violation or Could Have Known of it by Exercising Reasonable Diligence.

To comply with section 1632(b), under which Employer was cited, a roof opening must be "guarded by a standard railing and toeboards or cover." In this case, no railing and toeboards had been erected around the roof opening through which the deceased employee fell on July 8, 1998. Someone had covered it with a sheet of plywood that was neither secured to the roof nor marked to warn employees that it was covering a hole. Thus, the cover failed to meet the section 1632(b) requirements that a cover "shall be secured in place to prevent accidental removal or displacement, and shall bear a pressure sensitized, painted, or stenciled sign with legible letters not less than one inch high, stating: "Opening--Do Not Remove."

Employer's project manager, Craig Harris, provided the Division inspector with a written statement. In the statement, Harris wrote: "I observed the plywood covering the roof opening on Monday or Tuesday, July 6th or 7th. I did not observe if the plywood was secured. It had no writing on it."

The inspector also produced a written statement from labor foreman Randy Greer, who was supervising the roof cleaning operation. In his statement Greer wrote that while he was on the roof the morning of the accident giving the three man clean-up crew instructions, he observed that, "…the plywood was in place over the 3 foot by 3 foot roof opening" and that "[T]here was no stencil marking on the plywood and it was not nailed down."

Greer testified that he knew roof opening covers had to be secured and marked with a warning. He testified, unequivocally, that he observed the plywood cover the morning of the accident and that it was not marked with a warning. He also stated that he examined the sheet of plywood immediately after the accident and found no nails in it.

When questioned by Employer's counsel, Greer testified that he did not know if the cover had been nailed down before the accident, because he did not examine the cover for nails and nail holes until after the accident.

Greer added that he did not consider the floor opening to be a hazard to the employees cleaning the roof because 1) the cover appeared to be in place, 2) none of the debris he instructed the employees to pick up was immediately adjacent to the floor opening, and 3) none of the wood scrap he pointed out to them was nearly as large as the 4 foot by 8 foot sheet of plywood. However, Greer also testified that 1) the sheet of plywood could have been mistaken for left over material or scrap, 2) the laborers spoke broken English, but 3) he assumed they understood his physical and verbal directions about what they were supposed to do from their demeanor and reactions and 4) the fact that they asked no questions.

In its petition, Employer does not dispute the ample, unrefuted evidence proving that Employer, through foreman Greer and project manager Harris5, knew, before the laborers started cleaning the roof, that the roof opening was there and that it was covered with a sheet of plywood that was not marked with the warning required by section 1632(b). Moreover, although at the hearing Greer retreated from his prior written statement indicating he observed that "the plywood… was not nailed down" while instructing the laborers, the statement was admissible as evidence of the fact that Employer, through Greer, also knew that the plywood was unsecured before the laborers started cleaning the roof.6

The knowledge of Harris and Greer that the opening was covered with an unmarked sheet of plywood established that Employer knew before the accident that section 1632(b) was violated. And, the knowledge that the cover was unmarked would put a reasonably diligent employer on notice that it also might not be secured. Hence, whether Greer first examined the cover closely enough to determine if it was nailed down before or after the accident does not change the fact that Employer had sufficient knowledge of the violation and time to correct it before the accident.

Employer asserts that it did not know that the laborers cleaning the roof would go near the unguarded roof opening and that, by exercising reasonable diligence, it could not have known that an employee would be exposed to that hazard. The assertion is based on foreman Greer's testimony that most of the debris he told the laborers to pick up was approximately 20 feet from the opening and the collection box into which they dumped the debris an additional 20 feet in the same direction, or a total of 40 feet, from the opening. We are not persuaded by Employer's argument.

Foreman Greer did not testify that all of the debris the laborers were to pick up was in two, discreet "debris fields" approximately 20 feet from the opening. He testified that "most of the debris" was in those areas and that no debris was "immediately adjacent" to the opening. But the unmarked piece of plywood was "immediately adjacent" to the opening, and Greer testified that it could have been mistaken for debris. Furthermore, when Greer was asked by the Division's counsel what the laborers were doing when he went down to the ground to raise the debris box to the roof with a forklift, he testified as follows: "Rounding up the debris---that's laying and scattered all over the roof up there. It's not in a nice neat pile. That's why they're up there, to pick it up and move it over to where it needs to be."

By his own testimony, foreman Greer knew that the roof opening was not guarded in accordance with section 1632(b), that the laborers were rounding up debris that was "scattered all over the roof" and that the unmarked sheet of plywood over the opening could be mistaken for debris. This evidence is sufficient to support a finding that the scope of the job assignment was broad enough to make it reasonably foreseeable that a laborer would enter the zone of danger around the opening during the foreman's absence. Accordingly, we find that, by exercising reasonable diligence, Employer could have known an employee would be exposed to the hazard in violation of section 1632(b).

We conclude that the serious classification of the violation is correct.

3. The Penalty May Not be Reduced.

The violation caused the death of an employee. Under Labor Code section 6319(d), if a serious violation causes a death, "the penalty shall not be reduced for any reason other than the size of the business of the employer being charged." The ALJ reduced the penalty from $5,000 to $4,000 for another reason; she found that the Division erred in rating the extent of the violation as "medium" rather than "low". The medium rating resulted in no penalty reduction under section 335(a)(2) of the Director's penalty setting regulations but a low rating resulted in a 20% reduction. Since the ALJ's reduction was based upon the extent of the violation, a reason other than the size of Employer's business, it violated an express statutory mandate and cannot stand. (See Pacific Underground Construction, Inc., Cal/OSHA App. 89-510, Decision After Reconsideration (Nov. 29, 1990) and Keller Industries, Inc., Cal/OSHA App. 90-722, Decision After Reconsideration (May 8, 1991).) Accordingly, the $5,000 penalty proposed by the Division is found to be reasonable.

DECISION AFTER RECONSIDERATION

Employer's appeal from the serious classification of the violation is denied. The $5,000 penalty proposed by the Division is restored and affirmed.

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

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
FILED ON: December 20, 2001

1 Unless otherwise indicated, all section references are to Title 8, California Code of Regulations.
2 The caption of the Order Granting Petitions for Reconsideration erroneously refers to Docket Nos. 98-R1D2-4255 and 4256. Because only Docket No. 98-R1D2-4256 is before the Board on reconsideration, the Board hereby amends the caption of the Order Granting Petitions for Reconsideration to read Docket No. 98-R2D1-4256. This amendment relates back to the date of issuance of the Order Granting Petitions for Reconsideration and is effective as of that date.
3 On January 1, 2000, Labor Code section 6432 was amended to reverse the burden of proof with respect to an employer's knowledge of the violation. For violations occurring after that date the Division need only prove there is a substantial probability that a violation could result in death or serious physical harm to establish, as a prima facie matter, that the violation is serious. Then, if the employer proves that it had neither actual nor constructive knowledge of the violation, the classification of the violation may be reduced from serious to general. Because the serious violation in this case occurred before January 1, 2000, the Division had the burden of proving that Employer knew of the violation or could have known of it by exercising reasonable diligence.
4 Section 376.2 also tracks Government Code section 11513(c) in setting specific limitations on the use of hearsay evidence that is objected to on that ground by a party. That is irrelevant here because Employer has not demonstrated that the inspector's testimony was hearsay evidence.
5 The knowledge of a foreman or manager may be imputed to his or her employer. (Greene and Hemly, Inc., Cal/OSHA App. 76-435, Decision After Reconsideration (April 7, 1978).)
6 The statement would be admissible in a civil proceeding over a hearsay objection through Evidence Code sections 1235 and 770 because, on its face, it is inconsistent with witness Greer's hearing testimony and he was "so examined while testifying as to give him an opportunity to explain or deny the statement." (Evidence Code § 770(a)) Greer explained that he based his statement that the plywood was unsecured not on what he observed before the accident but on his examination of it after the accident. It would also be admissible as an authorized admission of Employer pursuant to Evidence Code section 1222.