EXECUTIVE SUMMARY

OCCUPATIONAL SAFETY AND HEALTH

APPEALS BOARD

Summary of JSA Engineering, Inc. - DAR

There was a fatal cave-in of an unprotected 5 foot+ trench. Employer failed to establish the logical time defense because, based on the ALJ’s witness credibility determinations, Employer knew that an employee entered the trench. The evidence proved that there was no safe means of egress (a violation of section 1541(c)(2)) even though the ALJ did not consider the alleged ramp. The classification of the violation was reduced to general because the Division presented no evidence of the substantial probability of serious physical harm or death. A serious violation of section 1541.1(a)(1) [no protective system] was sustained. The civil penalties are not duplicative because safe egress and protective system violations can’t be corrected by the same abatement measures.

JSA Engineering, Inc. 00-1367
December 3, 2002