BEFORE THE

STATE OF CALIFORNIA

OCCUPATIONAL SAFETY AND HEALTH

APPEALS BOARD

In the Matter of the Appeal of:

MOUNTAIN CASCADE, INC.

P.O. Box 5050

Livermore, CA 94550

                              Employer

 

 

Docket No.

99-R2D2-1024

 

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 Mountain Cascade, Inc. [Employer] and the Division of Occupational Safety and Health [the Division], makes the following decision after reconsideration.

JURISDICTION

On November 2, 1998, Brian Young [Young] a representative of the Division conducted an accident investigation at a place of employment maintained by Employer on Woodward Island, Stockton, California (the site). On April 22, 1999, the Division issued to Employer a citation alleging a serious violation of section1 4999(a) [crane loaded beyond rated capacity], with a proposed civil penalty of $5,000.2

Employer filed a timely appeal contesting the existence and classification of the violation, and the reasonableness of both the abatement requirements and the proposed civil penalty.

On May 4, 2000, a hearing was held before Manuel M. Melgoza, administrative law judge (ALJ) of the Board, in Concord, California. Ron E. Medeiros, attorney, represented Employer. Christopher, P. Grossgart, staff counsel, represented the Division.

On May 25, 2000, the ALJ issued a decision denying Employer's appeal but reducing the civil penalty to $1,250.

On June 29, 2000, Employer and the Division filed petitions for reconsideration. Both parties filed answers to the other’s petition. The Board granted both petitions on August 2, 2000.

EVIDENCE

Employer was performing seismic retrofitting work on a concrete encased steel pipeline at the site. The work required placing personnel and equipment inside the pipeline through a large 11-foot opening cut out of its top section. Included in the equipment used inside the pipeline was a fork-lift truck [fork-lift] that was placed into and removed from the pipeline by a truck-mounted crane or “boom truck.” The crane consisted of a hydraulically operated telescoping boom with four stages or boom extensions. The bed of the boom truck was eight feet wide and the center of rotation of the telescoping boom was mounted 48-inches from the edge of the truck bed.

On October 30, 1998, while lifting the fork-lift out of the pipeline, the crane tipped and fatally injured its operator, Rick Orth [Orth]. Several days later the Division conducted an investigation. Division inspector Young cited Employer for operating the crane beyond its rated capacity, in violation of section 4999(a).

The evidence obtained during the hearing established that five elements are necessary to determine whether a crane is loaded beyond its rated capacity within the meaning of section 4999(a): (1) weight of the object being lifted; (2) boom angle; (3) radius, which is the distance between the center of rotation of the boom and the center of the load being lifted; (4) extension of the boom, if any; and, (5) that the load line must be vertical at the time of the lift.

The weight of the fork-lift is not disputed. Employer’s project manager called Young the day following the inspection and told him that the certified weight slip indicated that the fork-lift weighed 8,420 pounds.

There is also no dispute as to the angle of the boom at the time the load was being lifted. Joe Keenan [Keenan], a laborer for Employer, testified that just before the lift the boom angle indicator showed 60-degrees.

The evidence concerning the radius was as follows:

Young described the calculation of the radius as: one-half of the width of the truck bed plus the distance from the edge of the truck bed to the center of the pipeline. Keenan testified that there was at least an 11-inch gap between the edge of the truck bed and the edge of the pipeline. Employer’s job foreman Alan Hale [Hale] testified that the outside diameter of the pipeline was 90-inches at the location where the work was being performed. The radius with a 90-inch diameter pipeline and an 11-inch gap is thus eight-feet, eight-inches.

Young testified that he spent 23 years with the Division and performed more than 3,000 inspections. He said that he inspected three crane accidents, not including the accident at issue here, where there had been a fatality and serious injuries. Young testified that based upon his experience a crane tip-over leads him to conclude that overload was the cause. He testified that it was his understanding that the range and load chart had an 85% safety factor, meaning that the rated capacity was 85% of the maximum load capacity. He further testified, however, that overloading is not the only cause of a crane tip-over. For instance, a tip-over could result from the outriggers, or stabilizers, not being properly positioned or adequately supported, something hitting the crane, or the load snagging on something.

ISSUES

1. Did the Division establish a serious violation of section 4999(a)?
2. Did the evidence establish that the accident was caused by the serious violation?

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

1. A Serious Violation of Section 4999(a) Was Established.

Section 4999(a) provides:

Size of Load. A crane, derrick, or hoist shall not be loaded beyond the rated capacity or safe working load whichever is smaller, except for test purposes. In all operations where the weight of the load being handled is unknown and may approach the rated capacity, there shall be a qualified person assigned to determine the magnitude of the load, unless the crane or derrick is equipped with a load weighing device. The operator shall not make any lift under these conditions until informed of such weight by the qualified person assigned to that operation.

The Division has the burden of proving a violation, including the applicability of the safety order, by a preponderance of the evidence (See, e.g., Howard J. White, Inc. Cal/OSHA App. 78-741, Decision After Reconsideration (Jun. 16, 1983) ) The Division also has the burden of proving each element of its case by a preponderance of the evidence. (Cambro Manufacturing Co., Cal/OSHA App. 84-923, Decision After Reconsideration (Dec. 31, 1986).)

Employer called no witnesses. Testimonial evidence was limited to Young, Keenan, Hale, and Tracy Kinstler [Kinstler], another of Employer’s laborers. The ALJ who heard the case credited the testimony of Keenan that the boom was at a 60 degree angle and that the edge of the truck bed was at least 11 inches from the outside of the pipeline when the lift was made. The ALJ’s findings, based on witness credibility, are entitled to great weight because he was present during the taking of testimony and able to directly observe and gauge the demeanor of the witnesses and weigh their statements in light of their manner on the stand. (See Garza v. Workmen's Compensation Appeals Board (1970) 3 Cal.3d 312, 318; Metro-Young Construction Company, Cal/OSHA App. 80-315, Decision After Reconsideration (Apr. 23, 1981).)

Employer argues that the Division did not meet its burden of proof that the fork-lift was in the exact center of the 90-inch outside diameter of the pipeline when it was lifted. Employer speculated that the lift could have been made within the limits of the load capacity chart if the fork-lift had been 10 inches off-center and the truck bed were closer. We are not prepared to accept Employer’s argument. Kinstler’s testimony3 about his observation that the fork-lift was in the center of the pipeline was not rebutted. Where an element of a violation must be proven and the employer does not present any evidence disproving that element, the Division need only present evidence to establish that it is more likely than not that the violation existed. (See Petrolite Corp., Cal/OSHA App. 93-2083, Decision After Reconsideration (Mar. 3, 1998).) Absent any evidence to the contrary, we find that the fork-lift was centered in the pipeline.

Based upon the unrefuted testimony of Young and Hale, we find that the load radius at the time the fork-lift was lifted from the pipeline, just prior to the accident, was as follows: the sum of one-half the width of the truck bed upon which the boom was mounted [48”] and one-half the diameter of the pipeline which we find to be 45-inches. In order to calculate the radius we find there was an 11 inch gap between the edge of the truck and the pipeline as testified by Keenan equaling 104 inches, or eight-feet, eight-inches. At a radius of eight-feet and a boom angle of 60 degrees the rated capacity of this boom truck is 7,800 pounds. The chart shows that as the radius distance increases, the rated capacity of the crane decreases and therefore we find that the rated capacity at eight feet, five inches is less than 7,800 pounds. Since the weight being lifted was 8,420 pounds we must find that the crane here was loaded beyond its rated capacity and that the Division established a violation of section 4999(a).

Employer’s petition for reconsideration does not challenge the serious classification. Since the issue of a serious violation was not raised in the petition for reconsideration it is waived (§ 391). We find that the Division established a serious violation of section 4999(a).

2. The Evidence Did Not Establish That the Accident Was Caused By the Serious Violation.

The Division believed that the serious violation caused the accident that resulted in the employee’s death.

We find that there is insufficient evidence in the record to support a conclusion that the weight above the rated capacity alone, or that the weight in conjunction with any other factor or factors caused the accident. Young conceded that, although the load may be a significant factor in a crane tipping, any number of other factors might actually cause the crane to tip. For example, variables affecting the triangular configuration created by a crane lift, such as placement of the crane next to the pipeline or failure to have a vertical load line could have caused the load to tip.

The evidence established that the same fork-lift was successfully lifted by the boom crane on several occasions before the accident. As a whole, the evidence suggests that something other than the weight of the load may have caused the crane to tip. We cannot find with any level of certainty that the overloading of the crane beyond its rated capacity (but less than its maximum load capacity) caused it to tip. The law requires that there be causation between the violation and the serious injury or, as here, death in order to characterize the violation as accident related and thus prohibit reduction of the penalty (except for the size of the business). (§ 336(c)(3).) (See, e.g., Chooljian Brothers Packing Co., Inc., Cal/OSHA App. 95-2549, Decision After Reconsideration (Jun.15, 2000).)

DECISION AFTER RECONSIDERATION

The ALJ’s Decision is affirmed. A serious violation of section 4999(a) is established and a civil penalty of $1,250 is assessed.

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

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
FILED ON: November 15, 2001

1 Unless otherwise specified, all section references are to Title 8, California Code of Regulations.
2 At the hearing the Division amended the proposed penalty to $4,500, giving Employer credit for size of business.
3 Although the ALJ found Kinstler’s testimony to be defensive and equivocal on the issue of boom angle and distance of the truck bed from the pipeline, there is no indication that the ALJ discredited his testimony on the location of the fork-lift. We have reviewed the record and specifically credut Keenan’s testimony on the issue of boom angle and distance of the truck bed from the pipeline.