317230357 western foundations & shoring, … foundations & shoring, inc. p.o. box 1939...

OSHAB 600 (Rev. 5/17) DECISION 1

BEFORE THESTATE OF CALIFORNIA

OCCUPATIONAL SAFETY AND HEALTHAPPEALS BOARD

In the Matter of the Appeal of:

WESTERN FOUNDATIONS & SHORING, INC. P.O. BOX 1939LAKESIDE, CA 92040

Employer

Inspection No.317230357

DECISION

Statement of the Case

Western Foundations & Shoring, Inc. (Employer) designs and builds temporary and permanent shoring systems, and complete drilled or driven foundation systems. Beginning December 9, 2013, the Division of Occupational Safety and Health (the Division) through Senior Safety Engineer Darcy Murphine (Murphine), conducted an accident investigation inspection at Employer’s jobsite located at 6722 Vista Del Mar, San Diego, California 92037 (the site). On May 20, 2014, the Division cited Employer for five general violations, three regulatory violations and one serious violation of California Code of Regulations, title 8.1 The citations at issue for the ALJ to rule on allege the following: Employer failed to establish, implement and maintain an effective Injury and Illness Prevention Program; Employer failed to train employees on the hazards likely to be present at the site and instruct employees to read the Code of Safe Practices; Employer failed to ensure the availability of a suitable number of appropriately trained persons to render first aid at the site; Employer failed to have a written plan to provide emergency medical services specific to the site; Employer failed to establish a Heat Illness Prevention Policy with high heat procedures; Employer failed to notify the Division within 8 hours of a serious injury accident; Employer failed to record and maintain scheduled and periodic inspection records to identify unsafe conditions and work practices; Employer failed to maintain adequate training records; and Employer failed to implement adequate control procedures to ensure the machine operators know of the presence of workers on foot in the areas of their operation.

Employer filed a timely appeal contesting the existence of the alleged violations and the reasonableness of the proposed civil penalties for Citation 1, Items 1, 2, 3, 4, 5, 6, 7, and 8. Additionally, Employer contested the existence of the alleged violation, the classification of the alleged violation, and the reasonableness of the proposed civil penalty for Citation 2, Item 1. Employer pleaded numerous affirmative defenses for all appealed citations.2

1 Unless otherwise specified, all references are to California Code of Regulations, title 8.2 Except as otherwise noted in this Decision, Employer failed to present evidence in support of its pleaded affirmative defenses, and said defenses are therefore deemed waived. (See, e.g. Central Coast Pipeline Construction Co., Inc, Cal/OSHA App. 76-1342, Decision After Reconsideration (July 16, 1980) [holding that the employer bears the burden of proving all of the elements of the Independent Employee Action Defense.])


This matter came regularly for hearing before Howard I. Chernin, Administrative Law Judge (ALJ) for the California Occupational Safety and Health Appeals Board (Board), in San Diego, California on September 20 - 21, 2016, and January 31, 2017. Thomas B. Song, Attorney, of Ogletree, Deakins, Nash, Smoak & Stewart, P.C., represented Employer. Tuyet-Van T. Tran, Staff Counsel, represented the Division. The undersigned submitted the matter on June 16, 2017.

Issues

1. Did Employer violate section 1509, subdivision (a), by failing to establish, implement, and maintain an effective Injury and Illness Prevention Program (IIPP) in accordance with section 3203 of the General Industry Safety Orders?

2. Did Employer violate section 1510, subdivision (a), by failing to instruct employees on the hazards likely present at the site and direct employees to read the Code of Safe Practices?

3. Did Employer violate section 1512, subdivision (b), by failing to ensure the availability of a suitable number of appropriately trained persons to render first aid at the site?

4. Did Employer violate section 1512, subdivision (i), by failing to have an adequate written plan to provide emergency medical services at the site?

5. Did Employer violate section 3395, subdivision (f)(3), by failing to establish a written Heat Illness Prevention Plan, which included high-heat procedures required by section 3395, subdivision (e)?

6. Did Employer violate section 342, subdivision (a), by failing to notify the Division of a serious injury accident?

7. Did Employer violate section 3203, subdivision (b)(1), by failing to maintain records of scheduled and periodic inspections at the site?

8. Did Employer violate section 3203, subdivision (b)(2), by failing to properly maintain documentation of safety and health training?

9. Did the Division establish the proposed civil penalties for Citation 1, Items 1, 2, 3, 4, 5, 7, and 8 are reasonable?

10. Did Employer violate section 1592, subdivision (e), by failing to implement control procedures while moving earth to ensure the vehicle operator knew of the presence of other workers on foot in the area of operation?

11. Did the Division establish employee exposure to the violation alleged in Citation 2, Item 1?12. Did the Division establish a rebuttable presumption that it properly classified the violation

alleged in Citation 2, Item 1, as serious?13. Did Employer rebut the presumption that the Division properly classified the violation

alleged in Citation 2, Item 1 as serious?14. Did the Division establish the accident-related characterization of Citation 2, Item 1?15. Did the Division establish the proposed civil penalty for Citation 2, Item 1, is reasonable?

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Findings of Fact3

1. The injured employee is Socorro Tablas (Tablas).2. The jobsite was located at 6722 Vista Del Mar in San Diego, California.3. Employer engaged in construction activities by building soldier piles through removing soil

and installing lagging board side-by-side lining an excavation. 4. Employer’s IIPP did not contain all of the seven minimum elements. 5. Employer did not provide safety training to employees at the date of hire pursuant to its IIPP.

Employer did not complete daily jobs site inspections pursuant to its IIPP. 6. The meeting date on the General Duty Clause document is November 7, 2013 and for job

name: La Jolla Center 3. The General Duty Clause did not specifically apply to the site.7. Employer did not explain the hazards likely present at the site and did not instruct Tablas to

read the Code of Safe Practices. 8. Tablas is a Spanish speaker and is not fluent in English. Employer did not explain the Code

of Safe Practices document in Spanish to Tablas or provide Tablas with a Spanish version of the Code of Safe Practices to read.

9. Employer’s first aid certificate cards expired in March 2013, 9 months prior to the accident. 10. Employer’s written emergency plan did not have site specific telephone numbers for a

physician and at least one alternative if available, hospitals, ambulance services, or fire protection services.

11. Employer’s Heat Illness Prevention Plan did not include high heat procedures as required by the standard.

12. Go-Staff Staffing Agency (Go-Staff) served as Tablas’ primary employer and Western Foundation & Shoring Inc. served as Tablas’ secondary employer.

13. Tablas suffered a serious injury when the John Deer 225D Excavator (excavator) struck him fracturing his femur. Tablas’s leg injury required surgery and 2 days of hospitalization.

14. Employer had constructive knowledge of Tablas’s serious injury and failed to contact the Division within 8 hours of the serious injury.

15. Employer failed to provide any records regarding safety inspections for the site in response to the Division’s request.

16. Employer’s training records contained deficiencies.17. The Division calculated penalties for Citation 1, Items 1, 2, 3, 4, 5, 7, and 8 in accordance

with the Division’s policies and procedures.18. Employer engaged in hauling and earth moving operations at the site.19. Employer’s control procedures did not ensure the excavation operator knew of employees on

foot near the excavator while in use. Employer did not use a spotter to alert the operator of employee movements or designate the area where the excavator was in use as work area.

20. Employer exposed employees to the actual hazard and zone of danger. 21. The Division complied with Labor Code section 6432, subdivision (b) by issuing a

Cal/OSHA 1BY letter to Employer and Murphine considered Employer’s responses prior to issuing a Serious citation.

22. The excavator weighed 55,000 pounds and posed a serious hazard to employees on foot at the worksite.

23. Jay Haisan (Haisan), a foreman for Employer, operated the excavator at the time of the accident.

3 The parties stipulated to findings of fact 1, 2, 11, and 22 at the hearing.


24. Jose Manuel Vega Garcia (Garcia) was employed by Western Foundation & Shoring Inc. and present at the site during the accident on December 2, 2013.

25. Craig Leavitt (Leavitt) was employed by Western Foundation & Shoring Inc. and present at the site during the accident on December 2, 2013.

Analysis

1. Did Employer violate section 1509, subdivision (a), by failing to establish, implement, and maintain an effective Injury and Illness Prevention Program (IIPP) in accordance with section 3203 of the General Industry Safety Orders?

Section 1509, subdivision (a), found under Article 3 (General) of Subchapter 4 (Construction Safety Orders) provides:

(a) Every employer shall establish, implement and maintain an effective Injury Illness Prevention Program in accordance with section 3203 of the General Safety Orders.

Section 3203, found under Group 1 (General Physical Conditions and Structures Orders) of Subchapter 7 (General Industry Safety Orders) provides in relevant part:

(a) Effective July 1, 1991, every employer shall establish and maintain an effective Injury and Illness Prevention Program (Program). The Program shall be in writing and, shall at a minimum:

(1) Identify the person or persons with authority and responsibility for implementing the Program.

[…]

(4) Include procedures for identifying and evaluating work place hazards including scheduled periodic inspections to identify unsafe conditions and work practices. Inspections shall be made to identify and evaluate hazards: (B) Whenever new substances, processes, procedures, or equipment are introduced to the workplace that represent a new occupational safety and hazard; and

(C) Whenever the employer is made aware of a new or previously unrecognized hazard.

[…]

(7) Provide training and instruction:


(A)When the program is first established;

(B) To all new employees;

(C) To all employees given new job assignments for which training has not previously been received;

(D)Whenever new substances, processes, procedures or equipment are introduced to the workplace and represent a new hazard;

(E) Whenever the employer is made aware of a new or previously unrecognized hazard; and,

(F) For supervisors to familiarize themselves with the safety and health hazards to which employees under their immediate direction and control may be exposed.

In citing Employer, the Division alleged:

a) At the time of the inspection, the employer had not established and implemented in writing a written Injury and Illness Prevention Program which included all of the elements required by this part. On 12/13/13, the employer provided a written IIPP dated January 22, 2013 and other documents in response to the Division’s Document Request. The programs provided did not include all of the required parts of a written IIPP, including the identity of the person or persons with authority and responsibility for implementing the Program as per 3203 (a)(1); procedures for identifying and evaluating work place hazards whenever new substances, processes, procedures, or equipment are introduced to the workplace that represent a new occupational safety and health hazard, and whenever the employer is made aware of a new or previously unrecognized hazard as per 3203(a)(4)(B) and (C); and procedures to provide safety training for employees including training on the contents of the employer’s IIPP as per 3203(a)(7)(A) through (F).

b) At the jobsite located at the Altair Project, 6722 Vista Del Mar, San Diego (La Jolla), the employer had not implemented their written Injury and Illness Prevention Program. Employees including temporary employees had not received training as per the employer’s written program to provide safety orientation training at the date of hire. There were also no daily jobsite inspections that had been completed as per the requirements of the employer’s IIPP.

The Division has the burden of proving a violation, including the applicability of the safety order, by a preponderance of the evidence. (Howard J. White, Inc., Cal/OSHA App. 78-


741, Decision After Reconsideration (June 16, 1983).) “Preponderance of the evidence” is usually defined in terms of probability of truth, or of evidence that when weighted with that opposed to it, has more convincing force and greater probability of truth with consideration of both direct and circumstantial evidence and all reasonable inferences to be drawn from both kinds of evidence. (Lone Pine Nurseries, Cal/OSHA App. 00-2817, Decision After Reconsideration (Oct. 30, 2001), citing Leslie G. v. Perry & Associates (1996) 43 Cal.App. 4th 472, 483.) Words within an administrative regulation are to be given their plain and commonsense meaning, and when the plain language of the regulation is clear, there is a presumption that the regulation means what it says. (AC Transit, Cal/OSHA App. 08-135, Decision After Reconsideration (June 12, 2013) (Internal citations omitted).)

Section 1509, subdivision (a) requires employers engaged in construction activities to establish an IIPP. Here, both parties presented evidence that Employer engaged in construction activities by building soldier piles through removing soil and installing lagging board side-by-side lining an excavation at a multi-unit condominium development construction site. Employer, therefore, is subject to the safety order.

Sections 1509, subdivision (a) and 3203, subdivision (a)(2) are parallel and essentially identical in requiring employers to establish and maintain an illness and injury prevention program which includes inspections of the worksite to identify hazardous conditions and materials. To be an IIPP violation, the flaws in a program amount to a failure to “establish,” “implement” or “maintain” an “effective” program. A single, isolated failure to “implement” a detail within an otherwise effective program does not necessarily establish a violation for failing to maintain an effective program where that failure is the sole imperfection. (See GTE California, Cal/OSHA App. 91-107, Decision After Reconsideration (Dec. 16, 1991); David Fischer, dba Fisher Transport, A Sole Proprietorship, Cal/OSHA App. 90-762, Decision After Reconsideration (Oct. 16, 1991).) An IIPP can be proved not effectively maintained if there is even one deficiency, if that deficiency is shown to be essential to the overall program. (Keith Phillips Painting, Cal/OSHA App. 92-777, Decision After Reconsideration (Jan. 17, 1995).) The Board has held that where there are general references to training, but no provisions describing how, when, where, who would give training, or how often training would be given, an IIPP is not sufficient to satisfy the requirements of § 3203(a)(7). (Tomlinson Construction, Cal/OSHA App. 95-2268, Decision After Reconsideration (Feb. 18, 1998).) The Appeals Board has held that an IIPP may satisfy the requirements of § 3203(a)(1) by identifying the person or persons by job title only. Nonetheless, an IIPP must do more than make "all levels of management" responsible for implementing a plan. (Pouk & Steinle, Inc., Cal/OSHA App. 03-1495, Decision After Reconsideration (June 10, 2010).) An IIPP may be found deficient where it lacks provisions regarding training only. Training is essential to the overall program. (Mountain Cascade, Inc., Cal/OSHA App. 01-3561, Decision After Reconsideration (Oct. 17, 2003).) Lack of provisions regarding training amounts to more than an isolated deficiency. (Id.)

To establish a violation, the Division must demonstrate that Employer failed to establish, implement, or maintain an effective IIPP. Murphine testified that as part of her investigation she made a document request for a copy of Employer’s written IIPP (Exhibit 6). Upon receiving Employer’s written IIPP, Murphine determined Employer failed to establish its IIPP because it did not contain three out of the seven required elements to establish an effective IIPP (Exhibit


13).4 In addition to the deficiencies in establishing an effective IIPP, Murphine credibly testified Employer failed to implement an effective IIPP. Employer’s written IIPP identified that it will provide orientation training for new employees and conduct daily inspections at the job site. The Division requested training records and daily inspection records, but did not receive documents to demonstrate training occurred for new employees.

Employer did provide the evidence of training to the Division concerning the General Duty Clause to demonstrate it did provide training and conducted a meeting regarding various topics, including awareness of moving equipment (Exhibit 5). However, this document is not sufficient for several reasons. First, the General Duty Clause is an element of the federal program and applies only to those states that are governed by the Occupational Safety and Health Administration (OSHA). California is not one of those states. Second, even assuming the General Duty Clause document meets California’s requirements as a general matter, it does not apply to the specific job site where the Division cited Employer. Although the General Duty Clause document cautions employees to “be aware of moving equipment” in the notes section, it is unclear what type of moving equipment Employer covered during the meeting. Employer did not provide any credible evidence to demonstrate the similarities, if any, between the La Jolla Center 3 project listed on the General Duty Clause document and the site of the investigation.

The weight of the credible evidence supports the conclusion that the flaws in Employer’s IIPP were not a single isolated failure. Training is an essential aspect to overall IIPP and amounts to more than an isolated deficiency. Therefore, the Division demonstrated Employer violated section 1509, subdivision (a).

2. Did Employer violate section 1510, subdivision (a), by failing to instruct employees on the hazards likely present at the site and direct employees to read the Code of Safe Practices?

Section 1510, subdivision (a), found under Article 3 (General) of Subchapter 4 (Construction Safety Orders) provides:

(a) When workers are first employed they shall be given instructions regarding the hazards and safety precautions applicable to the type of work in question and directed to read the Code of Safe Practices.

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/ / /In citing Employer, the Division alleged:

4 The missing elements from Employer’s written IIPP included: identifying a person or persons with authority and responsibility for implementing the IIPP; procedures for performing workplace inspections whenever new substances, processes, procedures, or equipment are introduced into to the workplace or whenever an employer is made aware of a new hazard; and the procedures for training were incomplete regarding training for new employees, training when they are made aware of a new hazard, and training for supervisors.


a) At the time of the inspection, where employees were preforming work at the construction jobsite located at the Altair Project, 6722 Vista Del Mar, San Diego (La Jolla), the employer had not trained the employees present on the hazards likely to be present at the construction job site, such as but not limited to the hazards of trenches or excavations, heavy equipment and use of personal protective equipment. There were no records that the employees had been trained on or directed to read the Code of Safe Practices, or given instructions on the hazards and safety precautions relevant to excavation safety, heavy equipment, heat, and other hazards present at the jobsite.

The Division must demonstrate that Employer failed to give instructions on the hazards likely present at the site and failed to direct the employees to read the Code of Safe Practices. Murphine testified that Employer provided a copy of the Code of Safe Practices in its IIPP document in response to her document request (Exhibits 13, 6). The Division issued this citation because although Employer had a Code of Safe Practices there was no evidence to suggest Employer sufficiently explained the contents of the document to all of its employees at the site. Tablas testified he never read the Code of Safe Practices and did not receive any training regarding working around the excavator digging the trench at this site. Additionally, Tablas credibly testified he could not read documents in English and no one from Employer explained the Code of Safe Practices to him in Spanish.5

Haisan acknowledged during his testimony that Tablas was not fluent in English. He did not witness any Go-Staff employees translate for Tablas at any point during the time Tablas worked at the site. Employer offered no credible evidence to suggest Tablas understood the hazards and safety precautions applicable to the site or had read the Code of Safe Practices it provided the Division.

The weight of the evidence supports Employer failed to instruct its employees on the hazards present at the site and to read the Code of Safe Practices. The Division, therefore, demonstrated Employer violated section 1510, subdivision (a).

3. Did Employer violate section 1512, subdivision (b), by failing to ensure the availability of a suitable number of appropriately trained persons to render first aid at the site?

Section 1512, subdivision (b), found under Article 3 (General), of Subchapter 4 (Construction Safety Orders) provides:

(b) Appropriately Trained Person. Each employer shall ensure the availability of a suitable number of appropriately trained persons to render first aid. Where more than one employer is involved in a single construction project on a given

5 Tablas testified at hearing in Spanish through a certified interpreter, Patricia Portillo.


construction site, the employers may form a pool of appropriately trained persons. However, such pool shall be large enough to service the combined work forces of such employers.


(a) At the time of the inspection, where the employer was performing construction work at the jobsite located at the Altair Project, 6722 Vista Del Mar, San Diego (La Jolla), none of the employees present at the job site had been trained to render first aid. Three employees had received first aid training in 2011, which expired in March 2013.

Section 1504 includes a definition of “appropriately trained person” and “first aid” within the defined term “Emergency Medical Services.” An “appropriately trained person” is defined as a physician or registered nurse currently licensed in California or a person possessing a current certificate (training within the past three years or as specifically stated on the certificate) from the American National Red Cross or equivalent training that can be likewise verified. Acceptable Red Cross certificates are those from the Standard First-Aid Multimedia, Standard First Aid and Personal Safety, or Advanced First Aid and Emergency Care courses. The term “first aid” is defined as the recognition of, and prompt care for, injury or sudden illness prior to the availability of medical care by licensed health-care personnel.

The intent of the Standards Board in adopting § 1512(b) was to guarantee that all construction projects have qualified persons provide prompt medical care for injuries or illness before the arrival of health care professionals at the job site. (See Triad Geotechnical Consultants, Inc., Cal OSHA App. 95-2232, Decision After Reconsideration (Nov. 10, 1999).)

Murphine requested Employer’s records for employees with training in first aid at the site (Exhibit 6). Employer provided AmeriMed first aid training cards for Haisan, Rick Roelofsz and Garcia. Murphine credibly testified that the training required under section 1512 is the equivalent of American Red Cross training. American Red Cross training expires every two years. Murphine testified she cited Employer for a violation of section 1512, subdivision (c) because all three first aid cards provided by Employer had expired in March 2013, approximately nine months before the accident occurred (Exhibit 10).

Haisan testified that he and Garcia received first aid training in February of 2013, just prior to the expiration of the training cards provided to the Division. Haisan testified that he received a card that certified the February 2013 training and he had it on him at all times. Additionally, Haisan stated during his testimony on September 21, 2016 that he had the training card in his truck.

Haisan’s testimony on this issue is not credible because he had numerous opportunities to produce the first aid certification to the Division, but never did. “If weaker and less satisfactory evidence is offered when it was within the power of the party to produce stronger and more satisfactory evidence, the evidence offered should be viewed with distrust.” (A. Teichert & Son, Inc. dba Teichert Rock Products, Cal/OSHA App. 1047912, Decision After Reconsideration


(June 30, 2017); C.C. Myers Inc., Cal/OSHA App. 94-1862, Decision After Reconsideration (Nov. 25, 1998), citing Evid. Code § 412.) Employer could have cleared up any ambiguity regarding first aid training by producing the document it purportedly had in its possession during the second day of hearing. Employer’s reliance on Haisan’s testimony is weaker and less satisfactory evidence than producing the document it purports to have in its possession to demonstrate compliance with section 1512.

Therefore, the Division demonstrated by a preponderance of the evidence Employer violated section 1512, subdivision (c).

4. Did Employer violate section 1512, subdivision (i), by failing to have an adequate written plan to provide emergency medical services at the site?

Section 1512, subdivision (i), found under Article 3 (General), of Subchapter 4 (Construction Safety Orders) provides:

(i) Written Plan. The employer shall have a written plan to provide emergency medical services. The plan shall specify the means of implementing all applicable requirements in this section. When employers form a combined emergency medical services program with appropriately trained persons, one written plan will be considered acceptable to comply with the intent of this subsection.


(a) At the time of the inspection, where the employer was performing construction work at the jobsite located at the Altair Project, 6722 Vista Del Mar, San Diego (La Jolla), the employer did not have a written plan to provide emergency medical services. The employer had a written emergency plan which was not specific to the location. The written plan did not include the telephone numbers of the following emergency services in the area which shall be posted near the job telephone, telephone switchboard, or otherwise made available to the employees where no job site telephone exists:

(1) A physician and at least one alternate if available.(2) Hospitals.(3) Ambulance services.(4) Fire-protection services.

The Board has held that safety order reflects the Legislature directive to provide adequate first aid attention on each construction project before the arrival of a certified or licensed health professional. (Channel Constructors, Inc., Cal/OSHA App. 81-1015, Decision After Reconsideration (Dec. 7, 1984); Zapata Constructors, Inc., Cal/OSHA App. 76-751, Decision After Reconsideration (Sep. 18, 1979).) In order to provide adequate first aid attention, a written


emergency medical plan that meets all the requirements of § 1512 is required. The presence of equipment which could be used to execute the plan (e.g., a mobile phone) does not meet the requirements of having the plan. (Pacific Telephone Co. dba AT&T 4051, Cal/OSHA App. 06-5052, Decision After Reconsideration (Aug. 11, 2011).) The Board has held if an employer elects the option of establishing an effective communication system, it must do so by having the emergency contact information posted at the jobsite or making it otherwise available to employees. In this context, the safety order means available at the job site. If it is not “posted” there, it must “otherwise” be present there, such as on some document(s) or stored in a device, such as a cell phone or tablet computer, the crew carries with it. The alternative to posting contact information at the jobsite is best understood to be some means other than posting that places the information at the jobsite. (Solarcity Corporation, Cal/OSHA App. 14-3707, Decision After Reconsideration (April 14, 2016).)

The Division must demonstrate that Employer’s emergency written plan did not include the telephone numbers of the emergency services in the area of the site. Murphine testified that section 1512, subdivision (i) requires Employer to have at each job site a written plan to provide emergency medical services. Employer had a written plan, but the plan only contained general 911 emergency information and did not have specific contact information for local services specific to the site (Exhibit 11). Employer's emergency medical plan shows that it only applied to Employer generally. The written emergency medical plan did not have specific telephone numbers other than 911, an internal emergency contact and a human resource contact. Murphine explained that the 911 emergency information is generally acceptable, but the hospital and physician contact information has to be specific for the job site in the event an employer decides to self-transport an injured employee. During cross-examination, Murphine stated that if Employer had a point of contact to call who knew about emergency services it would still not be sufficient to comply with section 1512, subdivision (i).

Employer did not offer any credible evidence at the hearing to counter the Division’s position. Employer sought to have Murphine admit during cross-examination that if it had a few point of contact numbers of people in its written plan who would have the necessary emergency service information available, that it complied with the standard. However, Murphine credibly testified that would still not be sufficient to comply because it complicates the communication system and increases the amount of time to get proper care for an injured employee.

The Division’s position is persuasive. The weight of the evidence demonstrates Employer’s written emergency written plan contained no specific telephone numbers at the site for the following: (1) a physician and at least one alternative if available; (2) hospitals; (3) ambulance services; or (4) fire protection services.

Therefore, the Division demonstrated by a preponderance of the evidence that Employer violated section 1512, subdivision (i).

5. Did Employer violate section 3395, subdivision (f)(3), by failing to establish a written Heat Illness Prevention Plan, which included high-heat procedures required by section 3395, subdivision (e)?


Section 3395, subdivision (f)(3), found under Article 10 (Personal Safety Devices and Safeguards), of Subchapter 7 (General Industrial Safety Orders) provides6:

(f) Training.(3) The employer's procedures for complying with each requirement of this standard required by subsections(f)(1)(B), (G), (H), and (I) shall be in writing and shall be made available to employees and to representatives of the Division upon request.

Section 3395, subdivision (f)(1)(B) provides:

(f) Training.(1) Employee training. Effective training in the following topics shall be provided to each supervisory and non-supervisory employee before the employee begins work that should reasonably be anticipated to result in exposure to the risk of heat illness:

(B) The employer's procedures for complying with the requirements of this standard.

Section 3395, subdivision (e)(1-4) provides:

(e) High-heat procedures. The employer shall implement high-heat procedures when the temperature equals or exceeds 95 degrees Fahrenheit. These procedures shall include the following to the extent practicable:

(1) Ensuring that effective communication by voice, observation, or electronic means is maintained so that employees at the work site can contact a supervisor when necessary. An electronic device, such as a cell phone or text messaging device, may be used for this purpose only if reception in the area is reliable.

(2) Observing employees for alertness and signs or symptoms of heat illness.

(3) Reminding employees throughout the work shift to drink plenty of water.

(4) Close supervision of a new employee by a supervisor or designee for the first 14 days of the employee's employment by the employer, unless the employee indicates at the time of hire that he or she has been doing similar outdoor work for at least 10 of the past 30 days for 4 or more hours per day.

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6 The Division issued the citation in May 2014, prior to the amended version of section 3395 becoming operative in May 2015. Therefore, the references to section 3395 in this decision reflect the version of the regulation in effect at the time the Division issued the citation.



(a) At the time of the inspection, where the employer was performing construction work at the jobsite located at the Altair Project, 6722 Vista Del Mar, San Diego (La Jolla), the employer had not established a written Heat Illness Prevention Plan meeting the requirements of this section. The Employer’s Heat Illness Prevention Policy [sic] did not include their plan for how to comply with the high-heat procedures required by 3395(e).

In Paramount Scaffold, Inc., Cal/OSHA App. 01-4564, Decision After Reconsideration (Oct. 7, 2004) the Appeals Board held that where the Division presents evidence which, if believed, would support a finding if unchallenged (prima facie case), the burden of producing evidence shifts to the employer to present convincing evidence to avoid an adverse finding.

Section 3395 subdivision (a)(2)(B) provides that the construction industry is subject to all the provisions of the Heat Illness Prevention Plan (HIPP) standard. Employer indisputably was engaged in construction activities at the site. Therefore, the Employer is subject to scope and application of section 3395.

To establish a violation of section 3395, subdivision (f)(3), the Division must demonstrate that Employer had not established a sufficient HIPP by not complying with the high-heat procedures required by section 3395, subdivision (e).

Murphine testified that Employer did have a written HIPP and Employer provided it in response to her document request (Exhibits 6, 12). Murphine credibly testified that Employer’s HIPP was deficient because it reflected an older model program that did not reflect the high heat procedures required by the standard. Additionally, Employer had not customized its HIPP for its company.

To counter the Division’s evidence, Employer questioned Murphine on a document entitled “Safety & Health Statement” (Exhibit 13). Murphine acknowledged that the document did mention high heat conditions (Exhibit 13, pg. 8). However, Murphine credibly testified that the language in Exhibit 13 did not meet the required procedures for the standard under section 3395, subdivision (e). Murphine testified Exhibit 13 mentions Employer established a program to address the issue of preparation and protection for high heat, the need to have adequate water available throughout the day, personnel training on heat related illness, and the ability of foreman granting at their discretion more frequent breaks. Murphine testified the standard, however, requires Employer’s HIPP to do more. Employer’s HIPP must, among other things, identify how it will: ensure effective communication, observe employees for signs and symptoms of heat illness, remind employees to drink more water during high heat, ensure any new employee has close supervision during their first few weeks to identify signs and symptoms of heat illness, and monitor the weather to know when high heat is probable. Employer’s plan did not satisfy those requirements.

The weight of the evidence presented demonstrates Employer did not have an HIPP in place at the time of the accident that contained all the elements of the safety order. Therefore, the Division has demonstrated Employer violated section 3395, subdivision (f)(3).


6. Did Employer violate section 342, subdivision (a), by failing to notify the Division of a serious injury accident?

Section 342, subdivision (a), found under Article 3 (Reporting Work-Connected Injuries), Subchapter 2 (Regulations of the Division of Occupational Safety and Health) of Chapter 3.2 (California Occupational Safety and Health Regulations (CAL/OSHA)) provides:

(a) Every employer shall report immediately by telephone or telegraph to the nearest District Office of the Division of Occupational Safety and Health any serious injury or illness, or death, of an employee occurring in a place of employment or in connection with any employment. Immediately means as soon as practically 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. If the employer can demonstrate that exigent circumstances exist, the time frame for the report may be made no longer than 24 hours after the incident.

Section 330, subdivision (h), found under Article 1 (Definitions Under California Occupational Safety and Health Act of 1973), Subchapter 1 (Regulations of the Director of Industrial Relations), of Chapter 3.2 (California Occupational Safety and Health Regulations (CAL/OSHA)) provides:

(h) "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.


(a) At about 11:40 AM on 12/02/13, an employee, who was a temporary laborer for the employer, was seriously injured when a John Deere 225 D Excavator (ID #453066) which was digging at the jobsite located at the Altair Project, 6722 Vista Del Mar, San Diego (La Jolla) ran over his foot and leg. The employee sustained a fracture of the right femur which required hospitalization for two days. The employer did not notify the Division within 8 hours of the serious injury.

The Board has held that all employers, both primary and secondary, have an obligation to report a serious injury under section 342(a). (See, Labor Ready, Inc., Cal/OSHA App. 99-3350, Decision After Reconsideration (May 11, 2001).) When an employer fails to make a report, the


Board will issue either $5,000 or a zero penalty. (Allied Sales and Distribution, Inc., Cal/OSHA App. 11-0480, Decision After Reconsideration (Nov. 29, 2012).) Penalties calculated in accordance with the penalty setting regulations are presumptively reasonable. (Stockton Tri Industries, Inc., Cal/OSHA App. 02-4946, Decision After Reconsideration (Mar. 27, 2006).) The Appeals Board, citing Jaco Oil Co., Cal/OSHA App. 97-943 Decision After Reconsideration (November 22, 2000), has long held that an Employer cannot meet its obligation to report by relying on the report of a fire fighting agency or other public agency that must report pursuant to section 342, subdivision (b). The rationale for Jaco Oil Co., supra, is that the language of the safety order itself requires a report from both employer and a responding fire department or public agency.

In Benicia Foundry & Iron Works, Inc., Cal/OSHA App. 00-2976, Decision After Reconsideration (Apr. 24, 2003) the Appeals Board offered the following discussion regarding measuring whether the employer had "constructive knowledge" of an employee's serious injury:

We find that in addressing the constructive knowledge requirement in section 342(a), the circumstances must be examined in order to determine whether Employer would have known in the exercise of reasonable diligence the nature of the injury as being serious. Facts which are relevant include, but are not limited to, the type and location of the injury or illness suffered by the employee, Employer's knowledge of the cause of the injury or illness, Employer's observations of the employee following the injury or illness, steps taken to obtain or provide medical treatment, Employer's efforts to determine the nature of the hospitalization (e.g. for observation, tests, treatment, duration, etc.) and the timeline and events following Employer learning of the injury or illness. Thus, the facts in a particular case must be examined to determine if an employer knew or with diligent inquiry would have known of the nature of the serious injury that requires the hospitalization described in section 330(h).

The purpose of the reporting requirement is to allow the Division to respond quickly to a serious injury or illness on the job. A rapid response is necessary to inspect potentially dangerous conditions close to the time of the accident or illness and to examine any equipment that may have caused an injury or illness, or which may pose a safety or health risk to other employees. (Benicia Foundry & Iron Works, Inc., supra, Cal/OSHA App. 00-2976.) An employer may not choose to remain ignorant about the nature of an employee’s injury. (Ibid.) Once an employer has notice of a sufficient likelihood of the injury being serious, additional inquiry is required. (General Truss Co, Inc., Cal/OSHA App. 06-0782, Decision After Reconsideration (Nov. 15, 2011), citing J & W Walker Farms, Cal/OSH App. 09-1949, Decision After Reconsideration (Nov. 2, 2009).) When an employer has doubts as to whether an injury is serious, the Appeals Board has long held that the employer should resolve any doubt in favor of reporting the event. (Dubug # 7 Inc. dba Wood-Ply Forest Products, Cal/OSHA App. 92-1329, Decision After Reconsideration (Jun. 26, 1995), citing, Alpha Beta Company, Cal/OSHA App. 77-853, Decision After Reconsideration (Nov. 2, 1979) and Phil's Food Market, Inc., Cal/OSHA App. 78-806, Decision After Reconsideration (Feb. 6, 1979).)


During the first day of hearing, the parties stipulated that Employer served as the secondary employer for Tablas at the time of the accident. Employer, therefore, had an obligation to report any serious injury Tablas suffered at the site or in connection with his employment. Tablas testified he stayed in the hospital for two days after the accident. During his hospital stay, Tablas had surgery to repair his broken leg. The surgery resulted in Tablas having some hardware inserted in his leg. Employer had constructive knowledge of the serious nature of Tablas’s injury because Haisan struck Tablas with a large excavator and watched as paramedics attended Tablas at the site and eventually transported Tablas on stretcher to the hospital. Murphine testified that both Employer and Go-Staff failed to report the serious injury to the Division. Rather, the San Diego Fire Department reported the serious injury to the Division.

Employer argues in its post-hearing brief that the Division did not provide credible evidence to establish the serious nature of Tablas’s injury and that his hospitalization was for over 24 hours. Employer argues the Division did not know of Tablas’s condition on the day of the injury and the Division never asked anyone about Tablas’s medical condition when he was hospitalized. Murphine admitted during the hearing that a fracture is not necessarily serious. Additionally, Employer maintains there is no testimony as to whether Tablas was in the hospital for over 24 hours. Therefore, Employer maintains it did not have an obligation to inquire about or report Tablas’s injury.

Employer’s arguments, however, are unpersuasive. Murphine credibly testified Employer received objective indicators at the site that provided sufficient notice that Tablas suffered a serious injury. Employer was on site during the accident where a 55,000-pound vehicle ran over Tablas. After the accident, Tablas remained on the ground and his leg bent in an unnatural position (Exhibit 19). Employer called the 911 emergency phone number after the accident. Employer witnessed the San Diego Fire Department carry Tablas from the site on a stretcher to a medical transport vehicle headed to a hospital (Exhibits 2, 3, C, D). These circumstances provided Employer with sufficient notice of the likelihood Tablas’s injury was serious and additional inquiry by Employer was required. Despite sufficient notice, Employer chose to remain ignorant about Tablas’s medical condition and not to make any further inquiry. Even assuming Employer could not definitively resolve the seriousness of Tablas’s injury at the site, Employer should have resolved any doubt in favor of making a timely report of the incident to the Division.

The Division demonstrated by a preponderance of the evidence that Employer had an obligation to report the serious injury Tablas suffered at the site. Employer failed to report the serious injury to the Division. Therefore, the $5,000 penalty proposed by the Division is assessed by operation of law7.

7. Did Employer violate section 3203, subdivision (b)(1), by failing to maintain records of scheduled and periodic inspections at the site?

7 There are no facts in the record herein that would justify a zero penalty because Employer did not establish how assessment of the regulatory penalty would amount to a miscarriage of justice.


Section 3203, subdivision (b)(1), found under Group 1 (General Physical Conditions and Structures Orders Introduction), of Subchapter 7 (General Industrial Safety Orders) provides:

(b) Records of the steps taken to implement and maintain the Program shall include:(1) Records of scheduled and periodic inspections required by subsection (a)(4) to identify unsafe conditions and work practices, including person(s) conducting the inspection, the unsafe conditions and work practices that have been identified and action taken to correct the identified unsafe conditions and work practices.


(a) At the time of the inspection, the employer had not maintained records of scheduled and periodic inspections required by 3203(a)(4) and by the employer’s written Safety Policy to identify unsafe conditions and work practices at the jobsite located at the Altair Project, 6722 Vista Del Mar, San Diego (La Jolla) where employees were performing installations of temporary shoring in the excavation. Employees of the employer had been working at the site since November 2013. The employer’s IIPP requires daily jobsite inspections, as well as inspections before any work commences, and weekly inspections by the project manager/estimator at all job sites. No inspection records were provided when requested by the Division on the Document Request Sheet on 12/10/2013.

The Division must demonstrate that Employer failed to maintain records of the steps taken to implement its IIPP by recording scheduled and periodic inspections to identify unsafe conditions and work practices and the action taken to correct the same.

Murphine credibly testified that Employer’s IIPP requires daily job site inspections, inspections before any work commences, and weekly inspections by the project manager at the site (Exhibit 13 pgs. 6, 7). The Division requested copies of Employer’s safety inspections for the site. Employer, however, did not provide any records of safety inspections for this site in response to the Division’s request.

Employer did not provide any evidence to rebut the Division’s evidence. Therefore, the Division demonstrated by a preponderance of the evidence that Employer violated section 3203, subdivision (b)(1).

8. Did Employer violate section 3203, subdivision (b)(2), by failing to properly maintain documentation of safety and health training?


Section 3203, subdivision (b)(2), found under Group 1 (General Physical Conditions and Structures Orders Introduction), of Subchapter 7 (General Industrial Safety Orders) provides:

(b) Records of the steps taken to implement and maintain the Program shall include:(2) Documentation of safety and health training required by subsection (a)(7) for each employee, including employee name or other identifier, training dates, type(s) of training, and training providers. This documentation shall be maintained for at least one (1) year.


(a) Training records for employees were provided on 12/13/2013, which included Weekly Safety Meeting records from November through December. Three of the Safety Training records were deficient in that they did not include the date of the meeting or training (job #C844, and Harper Residence), or the name of the supervisor providing the training (including Altair on 11/11/13).

(b) Training records provided by the employer for a [sic] two of the employees requested included the following training courses certified by the employer on Jan 4, 2013: Competent Person and Haz Woper 40 hour; CAT 928 Wheel Loader; Skid Steer Loaders; Fall Projection for Drill Shafts; Forklifts; and Certified Riggers Level 1 and Level 2. Valid training records shall include the actual date(s) of the training.

(c) No training records were provided for existing employees on the employer’s IIPP since the IIPP was updated on January 22, 2013.

The Board has held, “The purpose of section 3203(b)(2) is to establish a means for employers to have readily accessible proof that they have complied with the [section 3203(a)(7)(C)] training requirements.” Los Angeles County Department of Public Works, Cal/OSHA App. 96-2470, Decision After Reconsideration (April 5, 2002).)

The Division must demonstrate that Employer did not record and maintain sufficient documentation of safety and health training. As part of her document request, Murphine requested training records for Haisan, Roelofsz, Craig Leavitt (Leavitt), Garcia, and Tablas (Exhibit 6). Murphine credibly testified she found three instances where the Employer’s training records were deficient.

First, Employer provided four documents evidencing tailgate safety meetings (Exhibit 14). The first document concerned confined spaces, but did not have a date of the training or the name of the supervisor providing the training. The second document concerned electricity, but did not have the name of the supervisor providing the training. The third document concerned having an informed response, but did not have the date of the training or the name of the


supervisor providing the training. The fourth document concerns having an informed response, but is dated after the inspection began.

Second, Employer provided a safety meeting sign-in sheet for safety meeting on November 13, 2013 (Exhibit 15). However, the sign-in sheet failed to provide the name of the supervisor providing the training. Employer provided a series of training certifications to demonstrate employees have completed the training provided by Employer (Exhibit 16). Murphine testified the issue with the training certifications is that many of the trainings occurred on the same date, but the amount of time the trainings required could not have allowed the trainings to occur on the same day.

Third, Employer’s IIPP indicates a date of January 22, 2013. Murphine testified the standard requires an employer to train employees on the IIPP whenever a change occurs to the IIPP. Employer did not provide any records that demonstrate either Hasain or Roelofsz received training on the January 22, 2013 updated IIPP.

Murphine’s credible testimony and the documents provided demonstrate Employer’s training records contained deficiencies in all three instances cited. Employer did not offer any evidence to the contrary.

Therefore, the Division established by a preponderance of the evidence that Employer violated section 3203, subdivision (b)(2).

9. Did the Division establish the proposed civil penalties for Citation 1, Items 1, 2, 3, 4, 5, 7, and 8 are reasonable

Penalties calculated in accordance with the penalty setting regulations (section 333 through 336) are presumptively reasonable and will not be reduced absent evidence that the amount of the proposed civil penalty was miscalculated, the regulations were improperly applied, or that the totality of the circumstances warrant a reduction. (Stockton Tri Industries, Inc., Cal/OSHA App. 02-4946, Decision After Reconsideration (Mar. 27, 2006).)

During the hearing, the parties stipulated that the Division calculated penalties for Citation 1, Items 1, 2, 3, 4, 5, 7, and 8 in accordance with the Division’s policies and procedures. Therefore, each proposed civil penalty for Citation 1, Items 1, 2, 3, 4, 5, 7, and 8 is found reasonable.

10. Did Employer violate section 1592, subdivision (e), by failing to implement control procedures while moving earth to ensure the vehicle operator knew of the presence of other workers on foot in the area of operation?

Section 1592, subdivision (e), found under Article 10 (Haulage and Earth Moving), of Subchapter 4 (Construction Safety Orders) provides:

(e) Hauling or earth moving operations shall be controlled in such a manner as to ensure that equipment or vehicle operators know of


the presence of rootpickers, spotters, lab technicians, surveyors, or other workers on foot in the areas of their operations.


(a) On 12/02/2013, an employee walking toward and then standing alongside of the John Deere 225D Excavator (ID #453066) which was digging at the jobsite at the Altair Project, 6722 Vista Del Mar in La Jolla, was seriously injured when the operator of the excavator moved the vehicle into the employee. The employee’s right leg was fractured when the treads of the excavator rolled onto his foot and pinned him in the mud. There was no spotter who was directing the movements of the vehicle, and the employee on foot was not visible to the vehicle operator, who did not ensure that other workers in the area were clear before moving the excavator.

The safety order requires employers to control earth-moving operations in a manner that ensures the equipment operators know of the presence of on-foot workers within the immediate vicinity of the operators. Simply informing the operator that workers will be in the area, and to look out for them, does not ensure the operators obtain knowledge of those workers' location sufficient to satisfy the requirements of the safety order. (Teichert Construction v. Occupational Safety and Health Appeals Board (2006) 140 Cal. App. 4th 883.) Applying the Court of Appeal interpretation of the standard, the Appeals Board has held that requiring the on-foot worker to inform the operator of his or her presence does not satisfy the employer's obligation to ensure the operator knows of the location of the on-foot worker. (R. L. Brossamer, Inc., Cal/OSHA App. 03-4832, Decision After Reconsideration (Oct. 5, 2011).) The regulation requires that operations be controlled. Control is more than general notice that workers are on foot at the job site. (Id.) A system of making eye contact between on-foot workers and vehicle operators is, without more, insufficient to establish control and does not ensure that operators know the exact location of workers on foot. (HB Parkco Construction, Inc., Cal/OSHA App. 07-1731, Decision After Reconsideration (Mar. 26, 2012).)

To establish a violation of section 1592, subdivision (e), the Division must demonstrate that during hauling or earth moving operations Employer failed to implement control procedures to ensure it knew of employees on foot near the excavator while in use.

Murphine credibly testified Employer used an excavator to dig the earth underneath the solder pile lagging board to move the dirt to another location (Exhibit 3). Additionally, Haisan testified Employer was trimming back dirt using the excavator to install boards in between the I-beams (Exhibit 2). Therefore, Employer was engaged in hauling or earth moving operations when the accident occurred.

Murphine credibly testified that Employer had not implemented sufficient control measures. Employer did not have a system to ensure all the employees were working in an area away from the excavator. Employer did not have a procedure to ensure the use of a spotter to


keep track of the employees on the ground.8 In this case, Employer relied on the operator to know where all the employees were at all times. Murphine determined the cause of the accident was that Haisan started to move the excavator before he ensured that the crew on the ground was clear. Haisan could not see Tablas due to the excavator’s blind spot in the rear. Murphine testified that Haisan could have prevented the accident if he had done a visual check around the excavator, around the blind spots, and walked around the vehicle to do a head count and determine if any of the crew was missing.

Employer cites to HB Parkco Corporation, Inc. in its post-hearing brief to support its position that it implemented sufficient control procedures. Employer argues the present case is not factually similar to HB Parkco Corporation, Inc.; and, therefore, the Board should not find a violation of section 1592, subdivision (e). In that case, the employer left it up to the workers on foot to stay out of the operator’s path and required its employees to enter the immediate vicinity of the vehicle as part of their assigned work. Employer takes the position that it did not leave it up to the crewmembers to stay out of the excavator’s path because it instructed the workers to move to the north wall in front of the excavator and in line sight of the excavator operator. Additionally, it did not require employees to enter the vicinity of the excavator as part of their assigned work.

However, HB Parkco Construction, Inc. is applicable to the present matter. While the two matter may be somewhat factually different, both involved similar ineffective control procedures.

In HB Parkco Construction, Inc., a worker walked in a “designated vehicle area to retrieve materials needed for his work,” when he was struck and fatally injured by a loader. The control in place at the time of the injury “was for the operator and any on-foot workers to make eye contact and acknowledge each other through waving or other clear method, which was left to the employees to devise.” That employer did not implement a flagger, spotter, two-way radio, or any other method to inform equipment operators of the location of foot traffic. While the employer did designate some areas as no-vehicle areas, it had no plan in place for ensuring the safety of its on-foot workers who entered the travel-way other than telling such workers to make eye contact with any vehicle operators."

In the present case, Employer’s control procedures were at least as ineffective as the control procedures in HB Parkco Construction, Inc. Employer provided a general notice to its employees to move from the south wall to the north wall of the site after it had finished its work on the south wall. This allowed Employer to keep the employees in Haisan’s line of sight when Haisan operated the excavator along the north wall. Employer did not use a spotter, flagger, two-way radio, or any discernable method to inform Haisan of the location of foot traffic. Employer did not designate a vehicle area or attempt to restrict access in any area of the site. Employer did not have any system in place that accounted for the possibility that an employee may leave the north wall and move out of Haisan’s line of sight while he operated the excavator. Employees may have known to keep eye contact with Haisan while they were directly in his line of sight and he operated the excavator, but no procedure existed to account for situations where employees where not confined to Haisan’s direct line of sight. The only evidence provided by

8 A spotter is someone on the ground and always in the line of sight of the excavator operator. The spotter can see all of the other crew in vicinity of the excavator so if any of the crew get close to excavator they can signal the operator to stop or inform the crewmember they are too close to the excavator.


Employer that employees were to maintain eye contact with Haisan as he operated the excavator came from Garcia. Garcia’s testimony, however, only concerned the eye contact he had with Haisan to ensure he moved the excavator in the correct direction to move earth.

Employer did not provide any way for Haisan to assure himself that no workers were in a blind spot when operating the excavator. The only way Haisan knew if employees were not in the vicinity of the excavator was if they were in his line of sight in the area where he operated the excavator. Employer did not provide any evidence on a communication system to alert Haisan to the presence of a worker in his vicinity while he operated the excavator. The methods Employer used to control the concrete hauling operations did not ensure that the excavator operator knew of the presence of workers on foot in its immediate vicinity.

The Division, therefore, established a violation of section 1592, subdivision (e).

11. Did the Division establish employee exposure to the violation alleged in Citation 2, Item 1?

The Division bears the burden of proving employee exposure to a violative condition addressed by a safety order by a preponderance of the evidence. The Division may establish exposure in one of two ways. First, the Division may demonstrate employee exposure by showing that an employee was actually exposed to the zone of danger or hazard created by a violative condition. (Benicia Foundry & Iron Works, Inc., supra, Cal/OSHA App. 00-2976.) Actual exposure is established when the evidence preponderates to a finding that employees actually have been or are in the zone of danger created by the violative condition. (Dynamic Construction Services, Inc., Cal/OSHA App. 14-1471, Decision After Reconsideration (Dec. 1, 2016), citing Gilles & Cotting, Inc., 3 O.S.H. Cas (BNA) 2002, 1975-76 O.S.H. Dec. (CCH) P 20448, 1976 OSAHRC LEXIS 705 (Feb. 20, 1976) fn 4.)

Alternatively, “the Division may establish the element of employee exposure to the violative condition without proof of actual exposure by showing employee access to the zone of danger based on evidence of reasonable predictability that employees while in the course of assigned work duties, pursuing personal activities during work, and normal means of ingress and egress would have access to the zone of danger.” (Dynamic Construction Services, Inc., supra, Cal/OSHA App. 14-1471, citing Benicia Foundry & Iron Works, Inc., supra, Cal/OSHA App. 00-2976.) That is, the Division may establish employee exposure by showing the area of the hazard was “accessible” to employees such that it is reasonably predictable by operational necessity or otherwise, including inadvertence, that employees have been, are, or will be in the zone of danger. (Id. [citations omitted].)

Employer argued that employees, including Tablas, were not allowed to walk near the excavator when in use and Employer took steps to ensure this. Thus, no exposure to the excavator existed. However, Employer actually exposed employees to the hazard by having them near the excavator while it operated without sufficient controls in place to ensure Haisan knew where the workers on foot were located at all times. Employer did not designate any area of the site as off limits to the employees. Despite Employer’s contention that it instructed employees not to walk near the excavator, nothing physically prevented an employee from doing so and becoming exposed to the zone of danger.


Even without proof of actual exposure, the Division can prove employee exposure by showing it is reasonably predictable the hazard area was accessible to Employer’s employees by inadvertence. Whether or not Employer authorized Tablas to walk in the area near the rear of the excavator, he did. It is reasonably predictable an employee would venture back to a work area they had just left inadvertently. For whatever reason, Tablas went back to the south wall after the work shifted to the north wall after walking away to use the bathroom. When Tablas attempted to return to the north wall to join the rest of the employees he passed alongside the operating excavator, resulting in exposure to the hazard in the zone of danger. The excavator struck Tablas and compressed into the muddy area underneath the excavator’s tracks causing a serious injury to his right leg.

Accordingly, because Employer exposed employees, including Tablas, to the moving excavator, the Division established a violation of Citation 2, Item 1.

12. Did the Division establish a rebuttable presumption that it properly classified the violation alleged in Citation 2, Item 1, as serious?

Labor Code section 6432, in relevant parts, states the following:

(a) There shall be a rebuttable presumption that a "serious violation" exists in a place of employment if the division demonstrates that there is a realistic possibility that death or serious physical harm could result from the actual hazard created by the violation. The actual hazard may consist of, among other things:

[...]

(2) The existence in the place of employment of one or more unsafe or unhealthful practices that have been adopted or are in use.

(b)(1) Before issuing a citation alleging that a violation is serious, the division shall make a reasonable attempt to determine and consider, among other things, all of the following:

(A)�Training for employees and supervisors relevant to preventing employee exposure to the hazard or to similar hazards.

(B)�Procedures for discovering, controlling access to, and correcting the hazard or similar hazards.

(C)�Supervision of employees exposed or potentially exposed to the hazard.

(D)�Procedures for communicating to employees about the employer's health and safety rules and programs.

(E)�Information that the employer wishes to provide, at any time before citations are issued, including, any of the following:

(i)�The employer's explanation of the circumstances surrounding the alleged violative events. (ii)�Why the employer believes a serious violation does not exist.


(iii)�Why the employer believes its actions related to the alleged violative events were reasonable and responsible so as to rebut, pursuant to subdivision (c), any presumption established pursuant to subdivision (a).

(iv)�Any other information that the employer wishes to provide. (2)�The division shall satisfy its requirement to determine and consider the facts specified in paragraph (1) if, not less than 15 days prior to issuing a citation for a serious violation, the division delivers to the employer a standardized form containing the alleged violation descriptions (“AVD”) it intends to cite as serious and clearly soliciting the information specified in this subdivision. �The director shall prescribe the form for the alleged violation descriptions and solicitation of information. �Any forms issued pursuant to this section shall be exempt from the rulemaking provisions of the Administrative Procedure Act (Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code).

A rebuttable presumption of a serious violation exists when the Division establishes there is “a realistic possibility that death or serious physical harm could result from the actual hazard created by the violation.” (Labor Code section 6432, subdivision (a).) The term “realistic possibility” means that that it is within the bounds of reason, and not purely speculative. (Langer Farms, LLC, Cal/OSHA App. 13-0231, Decision After Reconsideration (Apr. 24, 2015).) To meet its initial burden, the Division must produce “some satisfactory evidence demonstrating the types of injuries that could result and the possibility of those injuries occurring.” (MDB Management, Inc., Cal/OSHA App. 14-2373, Decision After Reconsideration (Apr. 25, 2016).)

a. Compliance with Labor Code section 6432, subdivision (b):

In order to prove compliance with Labor Code section 6432, subdivision (b), the Division must demonstrate before issuing a citation that alleges a Serious violation it made a reasonable attempt to determine and consider several factors.

On May 1, 2014, Murphine sent Employer a Cal/OSHA 1BY letter (1BY) indicating the Division intended to issue a Serious citation to Employer. The letter invited Employer to submit any information it would like the Division to consider prior to the issuance of the citation alleging a Serious violation. The information Employer could consider including is consistent with the enumerated factors in Labor Code section 6432, subdivision (b)(1)(A)-(E). The letter encouraged Employer to complete and return to the Division the accompanying form by May 15, 2014 (Exhibit 17). On May 14, 2014, the Division received Employer’s response to the 1BY (Exhibit 18).

Murphine credibly testified she reviewed and considered Employer’s response to justify not issuing a Serious violation. Employer provided information about the operator and his qualifications, training, safety meetings, and reliance on a third party to assess the workplace. Employer, however, did not produce a record of the workplace assessment. Employer provided the general circumstances surrounding the operation of the excavator and the procedures used to


ensure safety. Murphine determined Employer’s response was thorough, but it was not sufficient to alter her decision to issue a Serious violation.

Therefore, the Division demonstrated by a preponderance of the evidence it complied with Labor Code section 6432, subdivision (b).

b. Serious Classification:

Murphine credibly testified that the actual hazard posed by failing to control hauling or earth moving operations is not to know of the presence of other workers on foot in the areas of operation is the 55,000 pound vehicle striking or running over on foot workers.9 Murphine testified she had experience investigating accidents involving heavy machinery weighing anywhere from 2,500 to 50,000 pounds. In those cases, the serious injuries included broken and fractured bones requiring hospitalization, and even death. Murphine testified that in her opinion a realistic possibility that death or serious physical harm existed because of the violation.10 The excavator is extremely large. Due to the weight and size of the excavator, humans would not have any recourse when struck by it and pinned beneath the treads of the tracks of the excavator.

The photographs provided at hearing demonstrate the excavator is a large vehicle with substantial weight (Exhibits 2, 3). Additionally, the photographs show the excavator has large tracks with treads that function as wheels would on a car. It is a realistic possibility that any human struck by the excavator would suffer death or serious physical harm. Indeed, Tablas broke his femur because of the accident. Tablas’s injury required surgery and hospitalization for 2 days. Therefore, Tablas’s injury was serious. Employer offered no credible evidence to the contrary.

The Division, therefore, established a presumption of a serious violation.

13. Did Employer rebut the presumption that the Division properly classified the violation alleged in Citation 2, Item 1, as serious?

Labor Code section 6432, subdivision (c) provides if the division establishes a presumption pursuant to subdivision (a) that a violation is serious, than an employer may rebut the presumption that a serious violation exists by demonstrating that the employer did not know and could not, with the exercise of reasonable diligence, have known of the presence of the violation. To rebut the presumption effectively, the employer must demonstrate both:

(1) The employer took all the steps a reasonable and responsible employer in like circumstances should be expected to take, before the violation occurred, to anticipate and prevent the violation,

9 Murphine determined the weight of the John Deere excavator from the specs during her investigation. 10 Murphine testified she has worked for Cal/OSHA for twenty-seven years as an associate safety engineer and senior safety engineer. Prior to employment with Cal/OSHA, Murphine held the position of compliance and safety health officer for Federal OSHA for two and a half years. Murphine holds a Bachelor of Science degree from the University of California at Davis. Murphine testified she received all the required mandated training for the Division. Murphine estimated she has investigated 500 construction sites during the course of her career, and approximately 50 of the 500 involved excavations similar to the site investigation in this matter. Given her education, training and experience, Murphine was qualified to provide testimony to establish the elements of a serious violation under Labor Code section 6432, subdivision (g).


taking into consideration the severity of the harm that could be expected to occur and the likelihood of that harm occurring in connection with the work activity during which the violation occurred. Factors relevant to this determination include, but are not limited to, those listed in subdivision (b).

(2) The employer took effective action to eliminate employee exposure to the hazard created by the violation as soon as the violation was discovered.

a. Employer Actions to Limit the Hazard and Exposure

Employer must demonstrate that it (1) took all steps that a reasonable and responsible employer would before the violation occurred to prevent it, and (2) took effective action to eliminate employee exposure to the same hazard as soon as it discovered the violation.

Employer presented evidence that it instructed its employees to use a dry path to avoid the mud areas when walking to the north wall (Exhibit D). Haisan testified he instructed the employees to use the dry path when moving all the tools to the north wall because it was the only real way to get there and was the farthest from the excavator. Additionally, the excavator had a travel alarm that beeps loudly to warn anyone around the vehicle when it moves. Employer provided evidence that at least some of the employees wore bright colored reflective vests, but it is unclear if all of the employees did (Exhibits 2, 3, C). Haisan testified that although he had a spotter directing his movements in the excavator to assist in scraping the wall, Employer did not have a spotter assigned to ensure the area around the excavator remained clear while Haisan operated the excavator.

Murphine credibly testified that Employer abated the violation during the course of her investigation. Employer removed the excavator from the job site and used smaller vehicles for the remaining excavation process. Muphine testified that Employer alternatively could have corrected employee exposure to hazard by utilizing a spotter or designating work areas where employees could walk that were not within the strike zone of the vehicle.

Based on the credible evidence presented Employer took some steps before the violation occurred to anticipate and prevent the violation. Employer, however, did not take all steps a reasonable and responsible employer in like circumstances should have taken. Employer did not designate a defined workspace for where the excavator was in use. By designating a workspace and instructing employees to stay away from that area, Employer would have decreased the likelihood of an employee being exposed to that area and suffering a serious injury. Although Employer stated it did not need a spotter because Haisan was moving the excavator forward and not backwards, a reasonable and responsible employer in like circumstances would employ a spotter when using a machine of that size.11 Moreover, given the muddy conditions of the worksite, it is likely an excavator would need to reverse at some point. This could expose employees who did not anticipate the excavator would move in reverse to serious injury.

11 Exhibit 18.


Employer did take effective action to eliminate employee exposure after it discovered the violation. Employer, however, failed to demonstrate both aspects as required by the standard.

b. Lack of Employer Knowledge

An employer may defend against a serious classification based on an employee's unforeseeable decision to exceed the scope of his assignment because proving the employee took such action would establish the employer's lack of knowledge. Employer bears the burden of proof on this issue. (Bay Area Systems & Solutions dba BASS Electric, Cal/OSHA App. 01-106, Decision After Reconsideration (Oct. 10, 2008).) “[Forepersons] and supervisors are responsible for more than just their personal safety; they are responsible for the safety of the workers under their supervision. They are their employer's representatives at the work site and directly ensure their employer's compliance with statutory and regulatory safety requirements.” (Davey Tree Surgery Co. v. Occupational Safety & Health Appeals Bd., (1985) 167 Cal. App. 3d 1232, 1241, 213 Cal. Rptr. 806, 810-811, citing In re Cutter Laboratories, Cal/OSHA App. 81-440, Decision After Reconsideration, (February 24, 1982) p. 2.) When a supervisor is in violation of a safety order, his knowledge of the violation is imputed to the Employer. (Id.) Failure to exercise supervision adequate to insure employee safety is equivalent to failing to exercise reasonable diligence, and will not excuse a violation on the claim of lack of employer knowledge. (Gateway Pacific Contractors, Inc., Cal/OSHA App. 10-1502, Decision After Reconsideration (Oct. 4, 2016).) The safety order requires control of the earth moving operations with a particular purpose in mind, specifically, informing the operator of his surroundings and the presence of workers on foot in them. Whether Employer knew or should have known that its exercise of control was inadequate to satisfy the safety order is the relevant inquiry. (HB Parkco Construction, Inc., supra, Cal/OSHA App. 07-1731.)

Employer argues in its post-hearing brief that Employer sufficiently controlled the work operations because Haisan designated and instructed the crew after finishing its work on the south wall to transition to the north wall, avoiding the mud puddle area, by using a dry narrow path along the north wall. Employees wore highly visible vests, the excavator had an audible alarm while in use, and the crew received instructions to remain clear of the excavator when it was in operation. Employer argues Tablas made an unreasonable decision to return to the south wall for no reason because the crew had already moved the air hose to the north wall side of the site. Tablas approached the rear of the excavator through the mud puddle while avoiding all contact with the operator on his way back to north wall side of the site. Haisan testified that Tablas knew to take the dry path because he had twice done so before that day. In addition, Garcia testified Haisan told the crew to use the dry path on the north side of the wall.

Employer’s argument, however, is unpersuasive. It is unclear if Employer gave clear instructions to the Tablas to avoid the excavator while in use because Tablas is not fluent in English and Employer provided no instruction in Spanish. There is conflicting evidence on why Tablas went back to the south wall. However, it is foreseeable that an employee would walk back to the area where work had just occurred. An employee may have forgot an item of clothing or work tool at the previous work area. An employee may not have entirely comprehended and understood the instruction to stay away from the area surround the excavator.


An employee may have been under the impression the excavator was only moving forward and not backwards and thought it was safe to approach the excavator from the rear. The record supports the conclusion that the supervisor failed to give clear instructions and institute sufficient control procedures. Employer is experienced in excavation work. Haisan has worked for Employer for 25 years and Employer considers him a very qualified operator (Exhibit 18). It is undisputed Haisan served as the foreperson at the site. Therefore, Haisan’s knowledge of the violation is imputed to Employer. Employer knew or should have known its exercise of control was inadequate to satisfy the safety order.

For all of the foregoing reasons, Employer failed to rebut the serious classification for Citation 2, Item 1, by a preponderance of the evidence.

14. Did the Division establish the accident-related characterization of Citation 2, Item 1?

To prove the accident-related classification, the Division must show a causal nexus between the Employer's violation of a safety standard and an employee's serious injury. (MCM Construction, Cal/OSHA App. 13-3851, Decision After Reconsideration (Feb 22, 2016); HHS Construction, Cal/OSHA App. 12-0492, Decision After Reconsideration (Feb 26, 2015).) The Division must make a “showing [that] the violation more likely than not was a cause of the injury.” (Ibid.)

Murphine credibly testified that the alleged violation description (AVD) for Citation 2, Item 1 described a serious injury that occurred when Haisan moved the excavator in such a manner that the treads of the excavator rolled onto Tablas’s foot, who was walking toward the excavator at the time, and pinned him in the mud. Tablas suffered a right leg fracture because Employer did not ensure workers in the area were clear prior to moving the excavator.

Employer did not present any evidence to refute Murphine’s testimony regarding the causal nexus between Employer violation of the safety standard and Tablas’s serious injury. Employer’s only argument to refute the Division’s accident-related characterization is that because the Division did not explicitly state the accident related characterization in Citation 2, Item 1, it must not be accident-related. Employer’s argument is not persuasive or supported by the evidence in the record.

The Division, therefore, established the accident-related classification of Citation 2, Item 1.

15. Did the Division establish the proposed civil penalty for Citation 2, Item 1, is reasonable?

Penalties calculated in accordance with the penalty setting regulations (section 333 through 336) are presumptively reasonable and will not be reduced absent evidence that the amount of the proposed civil penalty was miscalculated, the regulations were improperly applied, or that the totality of the circumstances warrant a reduction. (Stockton Tri Industries, Inc., Cal/OSHA App. 02-4946, Decision After Reconsideration (Mar. 27, 2006).)


Murphine credibly testified that the Division assesses an initial $18,000 penalty for every gravity-based serious violation. Because the violation alleged in Citation 2, Item 1 was a direct result of the serious injury, the only available downward adjustment the Division could apply is for size of the employer.12 Murphine testified Employer is a medium-sized employer and received a twenty percent reduction, which reduced the proposed civil penalty to $14,400.

Employer did not present any evidence that the Division miscalculated the proposed civil penalty, improperly applied the regulations, or that any circumstances warranted a reduction inthe proposed civil penalty. Nor did Employer dispute the accuracy of the Division’s adjustment factor for size. Therefore, the undersigned finds the proposed penalty of $14,400 for Citation 2, Item 1 is reasonable.

Conclusions

The Division established violations for Citations 1, Items 1, 2, 3, 4, 5, 6, 7, 8 and Citation 2, Item 1 by a preponderance of the evidence. The Division established the serious accident related classification for Citation 2, Item 1. Employer failed to rebut the presumption of a serious classification. Employer did not establish any of its affirmative defenses by a preponderance of the evidence. The Division properly applied the penalty setting regulations in proposing penalties for Employer’s violations. Therefore, the undersigned denies Employer’s appeal for Citation 1, Items 1, 2, 3, 4, 5, 6, 7, 8, and Citation 2, Item 1.

Orders

It is hereby ordered that Citation 1, Items 1, 2, 3, 4, 5, 6, 7, 8, and Citation 2, Item 1 are upheld. The associated penalty for each citation is set forth in the attached Summary Table.

__________________________________Dated: Howard I. Chernin

Administrative Law Judge

The attached decision was issued on the date indicated therein. If you are dissatisfied with the decision, you have thirty days from the date of service of the decision in which to petition for reconsideration. Your petition for reconsideration must fully comply with the requirements of Labor Code sections 6616, 6617, 6618 and 6619, and with California Code of Regulations, title 8, section 390.1. For further information, call: (916) 274-5751.

12 (Labor Code § 6319(d); Sherwood Mechanical, Inc., Cal/OSHA App. 08-4692, Decision After Reconsideration (June 28, 2012).)

07/20/2017

OSHAB 601 APPENDIX A Rev. 5/16Summary of Evidentiary Record and Certification of Recording

APPENDIX ASUMMARY OF EVIDENTIARY RECORD

Inspection No.: 317230357Employer: WESTERN FOUNDATIONS & SHORING, INC. Date of hearing(s): January 31, 2017, April 27, 2016, September 20, 2016, September 22, 2016

DIVISION’S EXHIBITS Exhibit Number Exhibit Description Status

1 Jurisdictional Documents Admitted Into Evidence

2 Photograph of accident Admitted Into Evidence

3 Photograph of accident taken from opposite angle Admitted Into Evidence

4 Photograph of scene taken from Northeast Admitted Into Evidence

5 Weekly Safety Meetings - The General Duty Clause Admitted Into Evidence

6 Document Request dated 12-10-13 Admitted Into Evidence

7 Employer's Accident/Incident Investigation Report dated 12-9-13

Admitted Into Evidence

8 Witness Statement of Jay Haisan dated 12-2-13 Admitted Into Evidence

9 Proposed penalty worksheet Admitted Into Evidence

10 First Aid cards Admitted Into Evidence

11 Construction Employee Safety Handbook Admitted Into Evidence

12 Heat Illness Prevention Plan Admitted Into Evidence

13 Safety and Health Statement dated 1-22-13 Admitted Into Evidence

14 Weekly Safety Meetings - Confined Spaces Admitted Into Evidence

15 Safety Meeting Sign-In Sheet dated 11-13-13 Admitted Into Evidence

16 Training Certification re Excavators Rubber/Steel Track (under 60,000 lbs.) dated 1-10-13

Admitted Into Evidence

17 Division 1BY Admitted Into Evidence

18 Employer's Signed Response to Division 1BY Admitted Into Evidence

19 Photograph of injured employee on ground Admitted Into Evidence


EMPLOYER’S EXHIBITS

Exhibit Letter Exhibit Description StatusA Photograph of accident scene showing water on ground Admitted Into

EvidenceB Photograph of accident scene showing injured employee Admitted Into

EvidenceC Second photograph of accident scene showing injured employee

on groundAdmitted Into Evidence

D Photograph of injured employee being carried on stretcher Admitted Into Evidence

E Field Documentation Worksheet dated 12-9-13 Admitted Into Evidence

F Photograph of scene showing north wall to the left Admitted Into Evidence

G Additional scene photograph, Bates-stamped DOSH 000182 Admitted Into Evidence

H Additional scene photograph, Bates-stamped DOSH 000183 Admitted Into Evidence

I Documentation Worksheet dated 12-9-13 Admitted Into Evidence

Witnesses testifying at hearing:

Darcy Murphine Senior Safety EngineerSocorro Tablas Injured employeeJay Haisan Superintendent/Equipment OperatorJose Manuel Vega Garcia Laborer


APPENDIX ACERTIFICATION OF HEARING RECORD

Inspection No.: 317230357Employer: WESTERN FOUNDATIONS & SHORING, INC.

I, Howard I. Chernin, the California Occupational Safety and Health Appeals Board Administrative Law Judge duly assigned to hear the above-entitled matter, hereby certify the proceedings therein were electronically recorded or recorded by a certified court reporter. If the proceedings were recorded electronically, the recording was periodically monitored during the hearing. Either the electronic recording or the recording made by a certified court reporter constitutes the official record of the proceedings, along with the documentary and other evidence presented and received into evidence during or after the hearing. To the best of my knowledge the recording equipment, if utilized, was functioning normally and exhibits listed in this Appendix are true and correct, and accurately represent the evidence received during or after the hearing.

Howard I. Chernin DateAdministrative Law Judge

e

07/20/2017

OSHAB 201 SUMMARY TABLE Rev. 06/16

SUMMARY TABLEOCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD

In the Matter of the Appeal of: WESTERN FOUNDATIONS & SHORING, INC.

Inspection No.317230357

Citation Issuance Date: 05/20/2014CITATION

ITEM SECTION

TYPE

CITATION/ITEM RESOLUTION

AFF IRMED

VACATED

PENALTY PROPOSED BY DOSH IN

CITATION

FINAL PENALTY

ASSESSED

1 1 1509 (a) (b) G ALJ affirmed violation. A $410.00 $410.001 2 1510 (a) G ALJ affirmed violation. A $305.00 $305.001 3 1512 (b) G ALJ affirmed violation. A $205.00 $205.001 4 1512 (i) G ALJ affirmed violation. A $135.00 $135.001 5 3395 (f) (3)(B) G ALJ affirmed violation. A $410.00 $410.001 6 342 (a) R ALJ affirmed violation. A $5,000.00 $5,000.001 7 3203 (b) (1) R ALJ affirmed violation. A $275.00 $275.001 8 3203 (b) (2) R ALJ affirmed violation. A $275.00 $275.002 1 1592 (e) S ALJ affirmed violation. A $14,400.00 $14,400.00

Sub-Total $21,415.00 $21,415.00

Total Amount Due* $21,415.00

*You may owe more than this amount if you did not appeal one or more citations or items containing penalties. Please call (415) 703-4291 if you have any questions.

Abbreviation Key:G=General R=Regulatory Er=EmployerS=Serious W=Willful Ee=Employee A/R=Accident RelatedRG=Repeat General RR=Repeat Regulatory RS=Repeat Serious

PENALTY PAYMENT INFORMATION

1. Please make your cashier’s check, money order, or company check payable to: Department of Industrial Relations 2. Write the Inspection No. on your payment 3. Mail payment to: Department of Industrial Relations (Accounting) Cashier Accounting Office P.O. Box 420603 San Francisco CA 94142-0603

Online Payments can also be made by logging on to http://www.dir.ca.gov/dosh/CalOSHA_PaymentOption.html

-DO NOT send payments to the California Occupational Safety and Health Appeals Board-