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

In the Matter of the Appeal of:

TRIAD GEOTECHNICAL CONSULTANTS, INC.
17231 East Railroad Street #100
City of Industry, CA 91748

                                                      Employer

Docket Nos. 95-R4D4-2231
                     through 2233

 

           DECISION AFTER
           RECONSIDERATION

The Occupational Safety and Health Appeals Board (Board), acting pursuant to the authority vested in it by the California Labor Code and having both ordered reconsideration on its own motion and granted the petition for reconsideration filed by Triad Geotechnical Consultants, Inc. (Employer), makes the following decision after reconsideration.

JURISDICTION

On May 18, 1995, the Division of Occupational Safety and Health (the Division) conducted an accident inspection at a place of employment maintained by Employer at Morning Sun and Shepherd Hills in Diamond Bar, California. On May 26, 1995, the Division issued to Employer the following citations and proposed penalties for alleged violations of the occupational safety and health standards and orders found in Title 8, California Code of Regulations:

Cit/Item                     Section             Classification             Penalty

1/1                             341(a)(1)                Regulatory                $435

                                    [excavation permit]

1/2                              1509(c)                   General                     $85

                                    [Code of Safe Practices]

1/3                               1512(i)                  General                    $85

                                    [written medical emergency plan]

1/4                                  1512(b)              General                     $85

                                    [trained person for first aid]

1/5                                1509(a)                General                    $300

                                    [Injury and Illness Prevention  Program]

2                                     1541(j)(1)             Serious                      $435

    [protection from loose rock or soil]

3                                1541(c)(2)                 Serious                     $435

   [safe means of egress]

Employer filed a timely appeal. At the hearing on April 25, 1996, an administrative law judge of the Board (ALJ) granted the Division’s motion to withdraw Citation No. 1, Item 3. On July 22, 1996, the ALJ issued a decision granting Employer’s appeal from Citation No. 1, Items 1, 2 and 4, and denying its appeal from Item 5. Employer’s appeals to Citation No. 2 and Citation No. 3 were also denied; however, the classification of the violation alleged in Citation No. 3 was reduced to general with a civil penalty of $85.

On August 13, 1996, the Board, on its own motion, ordered reconsideration of the ALJ’s findings that the requirement of section 1512(b) that a person designated to provide first aid be present at construction job sites does not apply if only one employee works at a job site (Citation No. 1, Item 4) and that the Division had failed to prove the serious classification of the section 1541(c)(2) safe means of egress violation. (Citation No. 3.) On September 6, 1996, the Division filed its brief in response to the Board’s order of reconsideration.

On August 12, 1996, Employer filed a petition for reconsideration of the ALJ’s decision denying Employer’s appeal from Citation No. 2. The Division filed its answer to the petition on September 18, 1996. The Board granted the petition on October 1, 1996.

EVIDENCE

In making this decision, the Board relies upon its independent review of the entire evidentiary record in this case, including the tape recordings of the hearing. The Board has taken no new evidence. The Board adopts and incorporates by this reference the summary of evidence set forth on pages 3 through 6 of the ALJ’s decision.

Issue No. 1

Does section 1512(b), requiring the presence of an appropriately trained person to render first aid, apply when an employer has only one employee at a job site?

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

Section 1512(b), Requiring the Presence of an Appropriately Trained Person to Render First Aid, Applies Even When an Employer has Only One Employee at a Job Site.

Section 1512(b) provides:

Each employer shall ensure the availability of a suitable number of appropriately trained persons to render first aid.

In Oltmans Construction Company, the employer asserted that the safety order was inapplicable since it had only one full-time employee at the site. The employer argued, "If that employee were ill or injured, the fact that he was appropriately trained to render first aid would be of no value in assisting in his own health or safety."

The Board rejected the employer’s argument and held:

The plain language of the safety order does not permit such an interpretation. Employer was obligated to see that at least one person, who need not be its own employee, was appropriately trained and immediately available to render first aid to its employee at the site, including, in this situation, the employee himself if no other person was available.

The Board’s holding in Oltmans reflected the interpretation given by a longstanding line of Board precedents. In Zapata Constructors, Inc., the Board held that the Legislature, in enacting Labor Code section 6708, had directed that on construction projects, adequate first aid attention be provided. The Standards Board had chosen to effectuate Labor Code section 6708 by promulgating section 1512, which requires that all construction projects have persons qualified "to provide for the recognition of and prompt care for injury or sudden illness" before the arrival of "licensed or certified professional health care personnel." In J. Herman Co., Inc., the Board held that the requirement of section 1512(b) (then 1512(c)) that a "suitable number of persons" trained in first aid was not impermissibly vague because the regulation required the presence of a first aid qualified person on all construction sites.

In Channel Constructors, Inc., the Board reaffirmed the position it had taken in Herman and Zapata. The Standards Board’s principal relevant modification of section 1512(b) relevant to this issue has been to transfer the "immediately available" language originally in section 1512 into the definition of emergency medical services in section 1504. The substantial continuity of the requirement is reflected in the Board’s intervening Decisions After Reconsideration. The Board declines to overrule this longstanding line of uniform Board precedent.

We hold that an employer subject to the construction safety order 1512(b) may satisfy the requirement of having an appropriately trained person to render first aid when only one employee is at the job site if that employee is so trained. We do not read section 1512(b) as a mandate to transform every job that requires only one employee for its performance into one that requires two.

The Board therefore reverses the decision of the ALJ and denies Employer’s appeal from Citation No. 1, Item 4. The proposed penalty of $85 is reinstated as fair and reasonable.

Issue No. 2

Did the Division establish a serious violation of section 1541(j)(1), requiring the occupants of an excavation to be protected from loose rock and soil?

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

1. The Division Established a Serious Violation of Section 1541(j)(1), Requiring the Occupants of an Excavation to be Protected from Loose Rock and Soil.

Section 1541(j)(1) provides:

Adequate protection shall be provided to protect employees from loose rock or soil that could pose a hazard by falling or rolling from an excavation face. Such protection shall consist of scaling to remove loose material; installation of protective barricades at intervals as necessary on the face to stop and contain falling material; or other means that provide equivalent protection.

Employer specializes in soils exploration and geological investigations. In early May 1996, at the behest of Sasak Construction, Employer surveyed an area in the city of Diamond Bar where there had been moderate land movement, causing cracks in the street. Conditions subsequently worsened, and on May 17th, the mayor of the city asked Sasak to conduct an emergency geological inspection. Sasak contacted Employer, and the following day it dispatched one employee to the site, John Kniffen, a registered geologist and a certified engineering geologist. Arrangements had been made with another employer to have a backhoe operator present. Two test trenches were dug, one 15 feet and the other 9 feet deep. The 9-foot trench had vertical sides and was 9 feet long and 26 inches wide.

When the Division inspector, Teresita Hussein, arrived on May 18th, Kniffen was at the bottom of the 9-foot trench. Hussein described it as having a 7-foot lower layer of dense, clay, Class A soil beneath an upper 2-foot layer of loose, Class B or C topsoil. Hussein also testified that the slow moving landslide increased the likelihood that loose topsoil and rock would fall into the trench and that the pressure of the amount of topsoil, should it fall, would likely result in serious injury.

Employer agreed that the soil was layered and offered expert testimony that the lower, 7-foot layer was sedimentary bedrock, but it presented no evidence and offered no opinion concerning the character of the upper layer. It also offered expert testimony that the slow moving landslide would not increase the danger of bedrock movement but did not address its possible effect on the upper layer. Nor did it address the inspector’s testimony concerning the likelihood of injury from falling topsoil.

The Board accepts Employer’s expert opinion that the lower level was bedrock but, like the ALJ, finds that its status did not eliminate the threat posed by the upper layer. Since Employer failed to provide testimony or opinion concerning the effect of the landslide on that layer or on the likelihood of serious injury from falling topsoil, the ALJ had no alternative but to accept the Division’s evidence. As the ALJ pointed out, employers are exempted from undertaking the protections provided for in section 1541.1(a)(1) only where "excavations are made entirely in stable rock." (Emphasis supplied.) Furthermore, subsection (c)(4) of Appendix A to section 1541.1 contemplates separate classification—with concomitant protection—for an upper layer that is weaker than the layer beneath.

In its petition and in its response to the Division’s answer, Employer seeks to rectify the situation by offering evidence and expert opinion concerning the stability of the upper layer. The offer comes too late. Each party is responsible for presenting its evidence at the hearing. Labor Code section 6617(d) provides that new evidence may not be introduced on reconsideration unless the petitioner "could not, with reasonable diligence have discovered and produced [it] at the hearing." Since Employer offered no explanation for its failure to present the evidence at the appropriate time, there is no legal basis for reopening the hearing to consider it now.

Aside from the proffered new evidence, Employer raises several legal issues. It argues, first of all, that if the Division wants to deny the opinions of a registered professional geotechnical engineer, it must present equally qualified witnesses.

The argument overlooks the fact that the Division’s evidence has been credited only where Employer failed to provide contrary expert opinion. Had its registered engineer testified or introduced his soils report attesting to the strength and cohesion of the upper layer, it might well have prevailed. As it was, the ALJ was forced to rely on the testimony of an experienced inspector who relied on the classification system approved by the Standards Board and incorporated into the excavation safety orders. That system and her experience easily suffice to establish a prima facie case—one, which in the absence of contrary evidence, warrants a finding that section 1541(j)(1) had been violated.

Employer next argues that the finding that a serious injury was likely to result from the collapse of the upper two-foot layer is at odds with the blanket exemption for excavations less than five feet in depth. There are obvious and important differences between two feet of soil collapsing down upon a worker standing at the bottom a nine-foot trench and soil collapsing around a work in a shallower, five-foot excavation. In the absence of evidence to the contrary, the ALJ was entitled to rely on the inspector’s assessment of the threat here posed.

Finally, Employer faults the Division for failing to introduce the slope stability analysis which Kniffen prepared and which, according to Employer, established the stability of the walls of the trench. The argument misconceives the obligation of the Division’s attorney. An attorney representing the State has a legal obligation to provide the opposing party with exculpatory evidence of which it may otherwise have been unaware but has no obligation to introduce that evidence. Nor was there any disclosure obligation. Employer itself prepared the report and provided it to the Division. Employer, not the Division, should have introduced the report.

The Board affirms the ALJ’s finding that Employer committed a serious violation of section 1541(j)(1) and that a civil penalty in the amount of $435 was appropriate.

Issue No. 3

Did the Division prove that the violation of section 1541(c)(2), requiring safe means of egress from an excavation, should be classified as serious?

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

The Division Failed to Prove that the Violation of Section 1541(c)(2), Requiring Safe Means of Egress from an Excavation, Should be Classified as Serious.

In response to the Board’s order directing reconsideration of the ALJ’s failure to classify the section 1541(c)(2) violation as serious, the Division argues that the probability of serious injury from the failure to provide Kniffen with a safe mean of egress from the trench is identical to the probability of injury posed by the failure to protect him from loose soil and rock. Thus, there is no logical basis for classifying the latter as serious and the former as general.

In considering that argument, the Board has analyzed the hazards created by the lack of a safe means of egress from an excavation as an independent cause of injury, and not as the result of the violation of another safety order. Examples of the kinds of injuries resulting from failure to provide proper means of entrance and egress from an excavation include an employee slipping or falling. The injury suffered might or might not be serious in nature.

Here the inspector confined herself to the likelihood that Kniffen would suffer a serious injury if he had tried to exit the trench during a cave-in. Hussein did not address the likelihood of serious injury given the full range of injurious possibilities arising out of the violation. In the absence of such evidence, the Division has failed to provide an evidentiary basis for classifying it as serious.

The ALJ’s classification of Citation No. 3 as general with an assessed civil penalty of $85 is therefore affirmed.

DECISION AFTER RECONSIDERATION

The decision of the ALJ granting Employer’s appeal from Citation No. 1, Item 4, and setting aside the proposed civil penalty, is reversed. The appeal is denied and a civil penalty $85 is assessed.

The decision of the ALJ denying Employer’s appeal from Citation No. 2, classifying the violation as serious, and imposing a civil penalty of $435 is affirmed.

The decision of the ALJ reducing the classification of the violation alleged in Citation No. 3 to general and imposing a civil penalty of $85 is affirmed.

JAMES P. GAZDECKI, Chairman
BILL DUPLISSEA, Member
OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
SIGNED AND DATED AT SACRAMENTO, CALIFORNIA – November 10, 1999