BEFORE THE

STATE OF CALIFORNIA

OCCUPATIONAL SAFETY AND HEALTH

APPEALS BOARD

In the Matter of the Appeal of:

DAILY BREEZE
5215 Torrance Boulevard
Torrance, CA 90503

 

                              Employer

 

 

Docket No.

99-R3D5-3429
and 3430

 

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-entitled matter by Daily Breeze (Employer), makes the following decision after reconsideration.

JURISDICTION

Between October 8 and November 29, 1999, the Division of Occupational Safety and Health (the Division) conducted an accident investigation at a place of employment maintained by Employer at 5215 Torrance Boulevard, Torrance, California (the site).

On December 6, 1999, the Division issued to Employer the following citations, items and proposed penalties for alleged violations of the occupational safety and health standards and orders found in Title 8, California Code of Regulations:1

Cit/Item Section Type Penalty
1/1 342(a) Regulatory $375
  [report of serious injury]    
       
1/2 3203(a) General $280
  [Injury and Illness Program (IIPP)]    
       
1/3 3277(d)(3) General $375
  [ladder rung length]    
       
2 3210(b) Serious $6,250
  [guardrails]    

Employer appealed the existence of the violations and reasonableness of the penalties. An Administrative Law Judge (ALJ) of the Board heard this matter on August 31, 2000, and issued a decision on September 13, 2000, denying the appeals.2

On October 18, 2000, Employer petitioned the Board for reconsideration of the ALJ's decision. The Division answered the petition on November 27, 2000, and on November 29, 2000, the Board granted Employer's petition and stayed the ALJ's decision.

EVIDENCE

Employer publishes newspapers at the site. On September 3, 1999, at approximately 3:00 a.m., press operator Steve Wilkerson fell 69 inches from an elevated work platform on a printing press to a metal deck below. He struck his head and other body parts in the fall, which rendered him unconscious for approximately 15 to 20 minutes.

Wilkerson was transported by ambulance to a hospital where examination revealed that he had numerous contusions, a broken wrist, and a ruptured spleen. He remained in the hospital for 12 days, receiving treatment that included removal of his ruptured spleen.

Employer reported the accident to the Division on September 3, 1999, at 3:45 p.m., more than 12 hours after it occurred. This led the Division to issue Citation No. 1, Item 1 charging Employer with violating the section 342(a) mandate that serious work-related injuries must be reported to the Division "immediately", which is defined therein to mean "as soon as practicably possible but not longer than 8 hours after the employer knows or with diligent inquiry would have known of the death or serious injury or illness."

In the course of investigating the accident, the Division's compliance officer reviewed Employer's written IIPP. Citation No. 1, Item 2, charging a violation of section 3203(a) was issued because the compliance officer was informed that the person named in the IIPP as responsible for its implementation no longer worked at the site and because he concluded that the provision for training supervisors about hazards in their areas of responsibility was inadequate.

The rungs on the fixed ladder providing access to the elevated work platform from which Wilkerson fell were 13½ inches long, not 16 inches long as required by section 3277(d)(3). Hence Citation No. 1, Item 3 was issued.

Citation No. 2 charged Employer with a serious violation of section 3210(b) for failing to provide guardrails to protect Wilkerson and other employees against falling from the open, 21-inch wide, ladder end of the elevated platform.

ISSUES

1. Did the Division establish a violation of section 342(a) for Employer’s failure to timely report a serious injury?

2. Did the Division establish that Employer failed to comply with certain requirements for an Injury and Illness Prevention Program (IIPP) in violation of section 3203(a)?

3. Did the Division establish a violation of section 3277(d)(3) [ladder rung length] where Employer obtained a variance after the inspection?

4. Did the Division establish a violation of section 3210(b) for Employer’s failure to provide guardrails to an unprotected ladder end of an elevated work location?

FINDINGS A ND REASONS
FOR
DECISION AFTER RECONSIDERATION

Citation No. 1, Item 1
Failure to Report Serious Injury Immediately

Section 330(h) defines "serious injury or illness to mean, "…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 a loss of any member of the body or suffers any serious degree of permanent disfigurement…."

The Division issued Citation No. 1, Item 1 and prosecuted it on the theory that Wilkerson's injury was serious, within the meaning of section 330(h), because the injury "require[d] inpatient hospitalization for a period in excess of 24 hours for other than medical observation”. Evidence sufficient to prove that Wilkerson suffered the loss of a body member or serious physical disfigurement was not presented.

Section 342(a) requires employers to report "immediately" any work-related "serious injury" to the nearest Division District Office. The same section defines "Immediately" to mean, "as soon as practicably possible but not longer than 8 hours after the employer knows or with diligent inquiry would have known of the death or serious injury."

It was undisputed that Employer reported Wilkerson's injury to the Division approximately 12 or 13 hours after the accident occurred. The ALJ credited the testimony of Employer's Safety and Workers' Compensation Manager that "…Employer did not know that the injuries would require more than 24 hours hospitalization for treatment at the time that the accident was reported to the Division…" (ALJ Decision, p. 4.) We see no reason to do otherwise.

However, the ALJ then states that Alpha Beta Company, Cal/OSHA App. 77-853, Decision After Reconsideration (Nov. 2, 1979) stands for the proposition that "Employer had a duty to report the injury since it knew that Wilkerson had been taken to the hospital", and, in reliance on that "precedent" finds that Employer violated section 342(a). We do not agree that Alpha Beta holds that an employer's duty to inform the Division that a serious injury has occurred is triggered solely by knowledge that the injured employee has been taken to a hospital.

In Alpha Beta, an employee who had been electrically shocked was taken to a hospital, admitted, received treatment and remained hospitalized for 3 days. The employer knew that the employee was hospitalized. Twenty-seven hours after the injury and hospitalization the Division cited the employer under section 342(a)3 because the employer had not yet reported the injury.

In its petition for reconsideration Alpha Beta argued that the Division did not prove the employee was hospitalized for reasons other than observation and that, therefore, it had no duty to report the injury. The Board rejected the argument for these reasons:

"It is the position of the Appeals Board that an employer's reliance on technical distinctions between actions which may amount to observation or treatment to avoid a duty to report accidents to the Division is misplaced. (Emphasis added.) An employer's doubts about whether an injury or illness is serious, or when medical observation has terminated and treatment started can easily be resolved by reporting industrial accidents to the Division." (Alpha Beta, supra, pp. 3-4.)

Alpha Beta is distinguishable from this case in important respects. In Alpha Beta it was found that the employer had enough information about the severity of the employee's injuries to make it "practicably possible" to report the injury as serious to the Division but never reported the injury. The Board also found that Alpha Beta relied on "technical distinctions" between hospitalization for observation and hospitalization for treatment "…to avoid a duty to report accidents to the Division." In this case, Employer did not know that Wilkerson's injuries would require more than 24 hours of hospitalization 12 to 13 hours after the accident, when it, nonetheless, reported the accident to the Division. That is not the conduct of an employer who was relying on technicalities to avoid the duty to report the injuries to the Division or delay the Division's investigation.

In Welltech Incorporated, Cal/OSHA App. 90-784, Decision After Reconsideration (Aug. 22, 1991), an employee sustained a hand injury that required the surgical insertion of a metal plate in the hand and left it substantially scarred. Employer learned of the nature of the injury and the surgery from a hospital where the employee was treated and released in slightly less than 24 hours.4 As in Alpha Beta, the employer did not report the injury to the Division, and was cited under section 342(a). The Board affirmed the ALJ's finding that "…the injury constituted a reportable 'serious degree of permanent disfigurement' as defined in the safety order."

In its petition, Welltech argued that it did not learn of the severity of the injury until it was able to talk to the treating physician the day after the accident, more than 24 hours later. Welltech further argued that since it could not determine with diligent inquiry that the injury was serious until more than 24 hours after the accident, the time for reporting the injury had passed and section 342(a) did not apply.

The Board rejected Welltech's arguments for the following reasons:

"This argument is based upon a misreading of the safety order. The duty to report a serious injury does not necessarily begin to run at the time of the accident. Rather, the safety order clearly specifies that the duty begins 'after the employer knows or with diligent inquiry would have known of the death or serious injury or illness.' (8 Cal. Code Regs. § 342(a).) Employer knew the day following the employee's surgery that the hospitalization was overnight, and that surgery was required to reconstruct the knuckle of the left index finger as well as to meld the bones in the hand with a steel plate affixed with screws. Since Employer failed to report the employee's injury to the Division within the ensuing 24 hours, the Board finds that a violation of Section 342(a) is established." (Welltech, supra, p. 4.)

Welltech is similar to Alpha Beta. The day after the employee's hospital admission and hand surgery Welltech learned enough from the treating physician to make it "practicably possible" for Welltech to have reported the injury to the Division within "the ensuing 24 hours," but Welltech made no report. Of particular significance to this case is the holding that Welltech violated section 342(a) by not reporting the injury within 24 hours after the doctor informed Employer of its seriousness.

Here, the Division presented no evidence to prove that a doctor or doctors determined that Wilkerson's spleen had been ruptured or that he was otherwise injured severely enough to require 24 hours of inpatient hospitalization for other than observation more than 8 hours before Employer reported the injury. The "Doctor's First Report of Work Injury" indicates that Wilkerson's chest, pelvis and head X-rays were negative for signs of injury. It also indicates that Wilkerson complained of "left temporal headache, left hand pain, [and] bilateral rib pain", but there is no indication that the hand and rib pain were diagnosed as a fractured hand and a ruptured spleen requiring a 3 day hospital stay until sometime later, perhaps within 8 hours of when Employer reported the injury. And, without proof of when that information first became available to a diligently inquiring employer, there is no evidentiary basis for finding that Employer's report was not made within 8 hours of that event.

For the above reasons, we conclude that the Division failed to prove that Employer did not report Wilkerson's serious injury immediately, within the meaning of section 342(a).

Citation No. 1, Item 2
Injury and Illness Prevention Program (IIPP) Deficiencies

Citation No. 1, Item 2, charges that Employer's written IIPP did not "[i]dentify the person or persons with authority and responsibility for implementing the Program" (§ 3203(a)(1)) and did not "provide training and instruction…for supervisors to familiarize themselves with the safety and health hazards to which employees under their immediate direction and control may be exposed." (§3203(a)(7)(F))

The Division's inspecting Compliance Officer, Nirmal Paul, reviewed a copy of Employer's IIPP on the day he started his inspection and found that it identified Human Resources Director, Lisa Henry as the responsible person. He asked about Ms. Henry during his opening conference with three representatives of Employer's management and was informed that she was no longer with Employer. David Ferguson, Employer's Safety and Workers' Compensation Manager, testified that another person informed him that Ms. Henry was on vacation pending her departure when Paul inspected and, hence, was still the responsible person.

Ferguson's hearsay testimony concerning Henry's employment status at the time of the inspection cannot support a finding of fact that Henry was still functioning as the responsible person. (§376.2) The Compliance Officer's testimony that Employer's representatives told him that Henry was gone, is a sufficient basis for finding that the IIPP did not accurately identify the person who was then responsible for it. Accordingly, we find that the Division proved a violation of section 3203(a)(1).

The only reference in Employer's IIPP to safety training for supervisors states that "Department Supervisors" are to "Attend safety training required for their subordinates to ensure knowledge of safe procedures." Stating that supervisors are to attend subordinate safety training, without more, does not describe a training and instruction program that will deliver the required training. We concur in the ALJ's finding that the Division proved a violation of section 3203(a)(7)(F).

Citation No. 1, Item 3
Ladder Rung Length

Employer was cited under section 3277(d)(3), which provides that "[t]he minimum clear length of rungs or cleats [on fixed ladders5] shall be 16 inches." The access ladder to the elevated work platform on the press is attached to the structure of the press and Employer acknowledged that the ladder rungs were only 13½ inches long but argues that a variance it obtained after the inspection proves there was no violation of section 3277(d)(3) before the variance was granted.

The issue on an appeal contesting the existence of the violation is whether the violation existed prior to or during the time of the inspection. If the Standards Board grants an employer a variance subsequent to the Division’s inspection, the variance would not affect the Board’s decision. (See, The Daily Californian/Calgraphics, Cal/OSHA App. 90-929, Decision After Reconsideration (Aug. 28, 1991).)

The Board has held that, "If in the interval between a citation and the final decision upon its appeal the Standards Board removes the proscriptive condition for which the citation issued, the appeal is to be granted." Maecon Inc., Cal/OSHA App. 78-049, Decision After Reconsideration (Dec. 28, 1983), at p. 8, and see, e.g., American Forest Products, Cal/OSHA App. 76-723, Decision After Reconsideration (May 9, 1979), F. P. Lathrop Construction Company, Cal/OSHA App. 77-051, Decision After Reconsideration (Dec. 15, 1980), and Guy F. Atkinson Co., Cal/OSHA App. 76-360, Decision After Reconsideration (March 31, 1981). But these cases are of no avail to Employer.

The Standards Board is authorized to grant an employer a permanent variance from a safety order if the employer proves, "that the conditions, practices, means, methods, operations, or processes used or proposed to be used by…[the] employer will provide…[protection equivalent to that] which would prevail if he complied with the standard." (Labor Code § 143(b)) Here, the Standards Board found that Employer could provide equivalent protection by meeting five conditions, including the addition of improved handrails, the application of non-skid surfaces to ladder rungs, cautionary signs, access limitations and ladder safety training.

Hence, by granting the variance, the Standards Board neither removed the 16" ladder rung length proscriptive condition, which remains today, nor authorized Employer to continue violating section 3277(d)(3), as it had been doing before the inspection, by not providing the level of protection required by that safety order. Instead, it authorized Employer to provide the same level of protection "which would prevail if he complied with the standard" under different proscriptive conditions.

Since Employer was not in compliance with section 3277(d)(3) or with the conditions imposed by the variance at the time of the inspection, the ALJ properly found that Employer violated the safety order.

Citation No. 2
Guardrails

In Citation No. 2, the Division charged Employer with violating section 3210(b), which states in pertinent part that, "The unprotected sides of elevated work locations…where an employee is exposed to a fall of 4 feet or more shall be provided with guardrails."

Employer asserts that the "ends" of an elevated platform are not "sides" of the platform within the meaning of section 3210(b), and that, therefore, the safety order does not apply to the unprotected, access ladder end of the printing press platform. We disagree.

The purpose of section 3210(b) is to protect employees against the hazard of falling 4 feet or more from the perimeters of elevated work locations. Depending on the dimensions of a rectangular elevated work platform, requiring that only the longer two edges of its perimeter be provided with guardrails could leave nearly half of the perimeter unguarded. Because Employer's narrow interpretation of "sides" would lead to absurd and unsafe results it should be rejected for a sensible, safety-consistent interpretation. (E. L. Yeager Construction Company, Inc., Cal/OSHA App. 79-1406, Decision After Reconsideration (July 29, 1982).)

We believe that the Standards Board intended the word "sides" to have the broader, more comprehensive meaning described in Webster's New World Dictionary, Third College Edition, 1991, at p. 1246 as, "…any of the lines or surfaces that bound or limit something [a square has four sides, a cube six]…." Like a square, a rectangle has four "lines or surfaces that bound or limit" it or "sides". That being so, the unprotected, access ladder end of the rectangular printing press platform was a "side" of the platform subject to the section 3210(b) guarding requirements.

The evidence does not support Employer's argument that it would be impractical to install fall protection guarding at that end of the platform. To the contrary, Employer Exhibits D and E show that Employer has installed a gate there so designed as to provide effective protection. Moreover, as the ALJ points out, even if it were impractical to comply with section 3210(b) that would not excuse non-compliance. Finally, since the ladder end of the platform was the only "unprotected side" and Wilkerson was found near the foot of the ladder, the record contained sufficient circumstantial evidence to support the inference that the violation caused Wilkerson's serious injuries. Accordingly, we affirm the ALJ's determination that the Division proved that Employer committed a serious, accident-related violation of section 3210(b).

DECISION AFTER RECONSIDERATION

Citation No. 1, Item 1

The Board reverses the ALJ’s decision and grants Employer’s appeal as to Citation No. 1, Item 1 pertaining to the alleged regulatory violation of section 342(a) and sets aside the related civil penalty in the amount of $375.

Citation No. 1, Items 2 and 3

The Board affirms the ALJ’s decision finding general violations of sections 3203(a) and 3277(d)(3) and assesses civil penalties of $185 and $375, respectively.

Citation No. 2

The Board affirms the ALJ’s decision finding a serious accident-related violation of section 3210(b) and assesses a civil penalty of $6,250.

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

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
FILED ON: April 12, 2002

1 Unless otherwise specified all references are to sections of Title 8, California Code of Regulations.
2 At the hearing, the ALJ granted the Division's motion to reduce the Citation No. 1, Item 2 penalty to $185 to correct a computation error.
3 At the time, section 342(a) defined "Immediately" to mean, "…as soon as practicably possible but not longer than 24 hours from employer's receipt of knowledge of the death or serious injury or illness." Section 342(a) has not otherwise been changed. The section 330 definition of "serious injury or illness" has been relettered from (o) to (h) without changing the definition.
4 "Immediately" was still defined in section 342(a) to mean, "…as soon as practicably possible but not longer than 24 hours from employer's receipt of knowledge of the death or serious injury or illness."
5 Per section 3277(b), a "fixed ladder is a ladder permanently attached to a structure, building, or equipment."