BEFORE THE
OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
DEPARTMENT OF INDUSTRIAL RELATIONS
STATE OF CALIFORNIA

In the Matter of the Appeal of:

ASSOCIATED READY MIX
1709 Sherborn Street
Corona, CA 91719

                                 Employer

 

Docket No. 95-R5D2-3794

 

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 ordered reconsideration of the Administrative Law Judge’s decision on it own motion, makes the following decision after reconsideration.

JURISDICTION

From June 15 through June 19, 1995, a representative of the Division of Occupational Safety and Health (Division) conducted an accident investigation at a place of employment maintained by Employer at 1709 Sherborn Street, Corona, California (the site). On August 23 1995, the Division cited Employer for an alleged serious violation of section 4002(a) [guarding moving parts on equipment] of the occupational safety and health standards and orders found in Title 8, California Code of Regulations, and proposed a $2,250 civil penalty.

Employer filed a timely appeal contesting the existence of the alleged violation and the reasonableness of the proposed civil penalty.

After a hearing before an administrative law judge (ALJ) of the Board a decision was issued on August 21, 1997, granting Employer’s appeal to the extent that the civil penalty was reduced to $1,750. In all other respects, Employer’s appeal was denied.

The Board’s order of reconsideration was limited to the issues of whether the injury was a serious injury within the meaning of Labor Code section 6302(h), and if so, whether any reduction in the proposed civil penalty for any reason other than size was appropriate. On October 27, 1997, the Division filed an answer.

EVIDENCE

In making this decision, the Board has taken no new evidence and relies upon its independent review of the record, including the tape recording of the hearing and the exhibits admitted at the hearing. The Board adopts and incorporates by this reference the summary of evidence set forth on pages two and three of the decision of the administrative law judge.

It was undisputed that an employee, while wiping down the revolving drum of a cement mixer, caught his sleeve on a "striker" which extends from the drum to record the number of revolutions, and his arm was "mangled" when it was pulled into the space between the truck and the drum. During his investigation, compliance officer Joe Doyle was told by supervisor Jim Williams that Employer was aware that employees wiped down the drums while the drums were moving. John Callon, Employer’s training and production manager, testified that employees were trained, as part of Employer’s safety program, that hands, rags and tools were not to be used on moving machinery.

ISSUES

1. Was the injury properly classified as a "serious injury" within the meaning of Labor Code section 6302(h)?

2. Was the amount of the penalty assessed for the accident related violation appropriate?

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

Based upon its review, the Board concludes that the ALJ accurately summarized the evidence, properly interpreted the applicable safety orders and precedents, and properly applied them to the facts established by the evidence. The Board concurs in the ALJ’s findings and reasons for the decision, except as to the amount of the civil penalty assessed, for the reasons set forth below.

1. The Injury Was Properly Classified as a "Serious Injury" within the Meaning of Labor Code Section 6302(h).

The Division contended that the injury was the result of a serious violation.

Labor Code section 6302(h) provides:

"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 a loss of any member of the body or suffers any serious degree of permanent disfigurement, but does not include any injury or illness or death caused by the commission of a Penal Code violation, except the violation of Section 385 of the Penal Code, or an accident on a public street or highway.

The ALJ did not expressly address the issue of whether the injury resulting from the violation was a serious injury within the meaning of Labor Code section 6302(h). The Board finds that there was sufficient evidence in the record to establish that the injury was serious.

There was no concise direct evidence of hospitalization in excess of 24 hours, loss of a member of the body, or a permanently disfiguring injury, as required under Labor Code section 6302(h) for proof of a serious injury. There is, however, sufficient evidence in the record to establish that a serious injury occurred.

It can reasonably be inferred from compliance officer Doyle’s credited testimony that the injured employee’s arm was "mangled" and that he suffered damage to his hand and arm beyond broken bones. "Mangled" is defined in the dictionary as "to mutilate or disfigure by battering, hacking, cutting, or tearing." John Callon, Employer’s training and production manager, did not indicate the length of any hospitalizations but testified that the employee had several surgeries and some residual disability.

Employer did not refute these facts, or attempt to present any evidence to prove that the injury was not "serious" within the meaning of Labor Code section 6302(h). Where a fact must be proven, if the Division presents evidence to prove that fact was more likely than not and the employer does not present any evidence to contradict that evidence, then the Board may infer that the fact was established. The Board finds that the injury was a serious injury within the meaning of Labor Code section 6302(h).

2. The Amount of the Assessed Penalty Was Inappropriate.

The Division admitted that it erroneously reduced the $5000 gravity-based penalty to $2,250 by allowing adjustment credits for Employer's good faith efforts at a safety program and its history of previous violations. Under Labor Code section 6319(d), the Division is prohibited from extending these credits where a serious injury is caused by a serious violation. The ALJ correctly determined that under section 336(d)(7) of the Director’s regulations the Division should only have allowed a 30% reduction for size, which would have resulted in a $3,500 proposed civil penalty had the Division correctly applied its own regulation.

The ALJ reduced the civil penalty to $1,750 based upon a determination that the violation was an isolated incident and an exception to Employer’s otherwise excellent safety program.

The Division, in proposing civil penalties under Labor Code sections 6319(c) and (d), is directed by these sections to calculate civil penalties in accordance with the regulations promulgated by the Director of Industrial Relations.

The Appeals Board’s authority is distinct from the Division’s. The Board, acting through the ALJ, has the authority to reduce the penalty amounts that the Division has proposed in accordance with its regulations. The Board’s function is not to adhere to the Director’s regulations, but to exercise discretionary authority to adopt, modify, or set aside the penalties proposed by the Division. (Lab. Code 6602; Liberty Vinyl Corporation. )

The Board finds that the evidence in the record does not support the ALJ’s finding that the violation involved in this case was an isolated instance, and that Employer’s safety program was excellent. The record shows that the employees frequently used rags to wipe down cement mixer drums while the mixers were running, and that Employer was aware of this practice. The Board therefore reverses the ALJ’s findings that the violation was an isolated incident and that Employer’s safety program was excellent, at least in respect to the violation involved in this case.

These findings were the basis for the ALJ’s adjustment of the civil penalty below what the Division had proposed. In its answer, the Division states that it does not argue that the administrative law judge should have increased the assessed penalty from that proposed by the Division. The Board, however, finds that the penalty proposed by the Division is appropriate, and will assess a civil penalty of $2,250.

DECISION AFTER RECONSIDERATION

The ALJ’s decision issued in this matter on August 21, 1997, is reversed in part as to the assessment of a civil penalty of $1,750 and affirmed in part, to the extent that the violation is upheld. Accordingly, a serious violation of section 4002(a) is found; and a civil penalty of $2,250 is assessed.

BILL DUPLISSEA, Member MARCY V. SAUNDERS, Member

SIGNED AND DATED AT SACRAMENTO, CALIFORNIA - December 6, 2000