Emerick Construction Co - Workers' Compensation Board - State of ...


Emerick Construction Co - Workers' Compensation Board - State of ...




Oregon Occupational Safety & ) Docket No. 10-00002SH

Health Division )


Plaintiff, )


vs. ) Citation No.: B7920-047-09





Pursuant to notice, a hearing was held in Salem, Oregon, on December 8,

2010 before Administrative Law Judge Naugle. Plaintiff, OR-OSHA, was

represented by Senior Assistant Attorney General Carol Parks. Defendant,

Emerick Construction Company, was represented by James D. McKune. John

Murphy appeared as the OR-OSHA representative.

Exhibits A-C, 1-25 and 7-7A were submitted at hearing and admitted into

evidence without objection. The record closed at the conclusion of the hearing.


Propriety of the November 5, 2009 Citation and Notification of Penalty as

amended August 11, 2010, alleging one violation with total proposed penalties of



Defendant is an Oregon employer who does business and employs workers

in the state of Oregon.

Defendant was the general contractor for the Keizer City Hall project, which

was a multi-employer work site. Richard Heuberger was the project

superintendent for the Defendant.

Benchmark Coatings, Inc. (Benchmark), was a subcontractor on the project

that performed painting work. (Ex. B.) Kim Hartke was the project foreman for

Benchmark. Peter Vandehey was a painter on the project working for Benchmark.

The project included three parking lot vehicular access security gates, with

the Southeast gate at issue. (Ex. C.) The Southeast gate is fabricated out of square

steel tubing, is approximately 20 feet long by six feet high, and weighs

approximately 2,000 pounds. A roller is attached to an adjacent wall and guides

the gate, which rolls on wheels that travel on a track for opening and closing. (Exs.

7-5, 17-23.)

Ms. Hartke testified that on Friday, July 31, 2009, Mr. Heuberger informed

her that the Southeast gate was loose and not to paint it.

On Monday, August 3, 2009, another subcontractor, Weldwerks, set the

Southeast gate on its track and left the gate in the open position, where it could not

fall unless it was pulled out and rolled off the track. (Testimony of John


On August 4, 2009, a conversation occurred between Ms. Hartke and Mr.

Heuberger. Ms. Hartke testified that Mr. Heuberger asked if the gates could get

painted that day. (Testimony of Hartke.) Mr. Heuberger testified that he had no

recall of the conversation with Ms. Hartke, and that it would not be logical to paint

before the chain drive was installed. (Testimony of Heuberger.)

Thereafter, on August 4, 2009, Ms. Hartke directed Peter Vandehey to paint

the gate. (Testimony of Hartke.) Mr. Vandehey extended the gate past the roller

and it fell on his left leg above the ankle, causing injuries, including fractured

bones, which resulted in the amputation of his left leg below the knee. (Ex. 7-2,

Testimony of Murphy.)

Prior to the accident, the gate had not been tagged, chained, or a stop welded

to prevent it from extending completely past the roller.

The Defendant completed accident reports and OR-OSHA Safety

Compliance Officer John Murphy performed an inspection and investigation.

(Exs. 4, 7, 12, 14.)

On November 5, 2009, OR-OSHA cited Defendant for a serious violation of

OAR 437-001-0760(1)(b)(C) for not taking all reasonable means to require

employees to use all means and methods necessary to accomplish all work where

employees were exposed to a hazard in that the employer did not take every

reasonable means and methods to prevent a security gate from overturning on a

subcontractor's employee. Medium probability and a serious severity rating were

assessed. A proposed penalty of $500 was also assessed. (Exs. 16, 22.)

Defendant timely requested a hearing. (Ex. 17.)

On August 11, 2010, OR-OSHA issued an Amendment to the citation,

amending the variable language to reflect that the employer did not take every

reasonable means and methods to prevent a security gate from overturning on any

employee of the general contractor or subcontractor at the worksite. (Ex. 20-1.)


Because the employer timely appealed the Citation under ORS 654.078, OR-

OSHA has the burden to not only establish that its Citation was correct, but also

that the penalties assessed therein were reasonable. See OAR 438-085-0820(1). To

sustain its burden of proof, OR-OSHA must prove that a violation of an applicable

rule occurred, that there was a hazard present, that the employer had knowledge of

a violation and that the penalty assessed for the violation was not excessive. See

Enoch Skirvin & Sons, Inc. v. Accident Prevention Div., 32 Or App 109 (1978).

Here, the record established that the Defendant was the general contractor

for the project and that the project was a multi-employer work site.

OR-OSHA cited Defendant for a serious violation of OAR 437-001-

0760(1)(b)(C) for not taking all reasonable means to safely accomplish work where

employees were exposed to a hazard in not assuring a security gate was rendered

inoperable from traveling off its track.

The Defendant argued that no hazard existed because it took the moving of

the gate by a worker to make it fall. The difficulty with the Defendant's argument

is that OAR 437-001-0015 defines a hazard as "a condition, practice, or act that

could result in an injury or illness to an employee." Although the Defendant is

correct that moving of the gate past the roller was required for the gate to fall off

its track, it was that very act and the condition of the gate where it was able to

travel off its track that resulted in injury. As such, I am persuaded that a hazard

was present within the meaning of the applicable definition.

As to employee exposure, employees working at the site were exposed to the

hazard from when the gate was set on the track on August 3, 2009, until the

accident on August 4, 2009. Accordingly, I conclude that employee exposure was


With regard to employer knowledge, the record established that the

Defendant, through its superintendent, had knowledge the gate could be pulled out

past the roller where it could fall.

Based on the foregoing, OR-OSHA has met its burden of proof to establish a

subject employer, a violated standard, employee exposure and employer

knowledge. Accordingly, OR-OSHA has established the cited violation. The

remaining analysis is the reasonableness of the proposed penalty.

OAR 437-001-0135(1) requires that the probability of an accident which

could result in an injury from a violation be determined by the Compliance Officer

and be expressed as a “probability” rating. A “low” probability rating is

appropriate if the factors considered indicate it would be “unlikely” that an

accident could occur. A “medium” probability rating is appropriate if the factors

considered indicate it would be “likely” that an accident could occur. A “high”

probability rating is appropriate if the factors considered indicate it would be “very

likely” that an accident could occur.

SCO Murphy considered the number of employees exposed to the hazard

and the fact that an injury occurred. The record contains support for the factors

relied upon. Accordingly, I am persuaded that the “medium” probability rating is

appropriate for the citation item.

OAR 437-001-0140(1) requires that the Compliance Officer determine the

severity rating for each violation based on the most severe degree of injury which

is reasonably predictable.

Here, SCO Murphy, testified that the gate fell on the worker's leg causing

injuries including fractures and assigned a “serious” severity rating. Serious

physical harm is defined by OAR 437-001-0015 and includes:

"[i]njuries that could shorten life or significantly reduce physical or

mental efficiency by inhibiting, either temporarily or permanently, the

normal function of a part of the body. Examples of such injuries are

amputations, fractures (both simple and compound) of bones, cuts

involving significant bleeding or extensive suturing, disabling burns,

concussions, internal injuries, and other cases of comparable


The injuries sustained by the worker inhibit normal body function.

Therefore, a “serious” severity rating is appropriate. See OAR 437-001-


Penalties are addressed by OAR 437-001-0135 through OAR 437-001-0203.

OAR 437-001-0145(1) provides that a penalty shall be assessed by considering the

penalty established by the intersection of the probability and severity ratings in

Table 1 of the rule. A violation with a medium probability and a serious severity,

has a penalty of $500. Id. Due to an injury occurring, no penalty adjustment

factors were applicable, and the proposed penalty remained $500. See OAR 437-


As the penalty assessed is within the range allowed under the applicable

rule, my power to modify the penalty amounts is limited to circumstances where

OR-OSHA has abused its discretion in assessing a penalty. See Brennan v.

OSHRC (Interstate Glass Co.) 487 F.2d 438 (8 th Cir. 1973). There are insufficient

facts on this record to support such finding.

Accordingly, based on the foregoing, I conclude that the assessed penalty

was reasonable.


The November 5, 2009 Citation and Notification of Penalty, as amended

August 11, 2010, is affirmed.

NOTICE TO ALL PARTIES: You are entitled to judicial review of this

Order. Proceedings for review are to be instituted by filing a petition in the Court

of Appeals, Supreme Court Building, Salem, Oregon 97301-2563, within 60 days

following the date this Order is entered and served as shown hereon. The

procedure for such judicial review is prescribed by ORS 183.480 and ORS


Entered at Salem, Oregon, on February 7, 2011

Workers' Compensation Board

/s/ Gregory J. Naugle

Gregory J. Naugle

Administrative Law Judge

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