By: Thomas H. Welby Published: October 2016

OSH Commission Upholds Citation Based on "Performance" Standard Following Drowning Incident (Part 2 of 2)

In the Central Florida case introduced in last months’ installment, the ALJ agreed with the Secretary that the CAT that went into the retention pond, drowning the operator, was an earth-moving vehicle, and the berm was an access roadway.  Thus, it was found, the cited standard — which forbids construction equipment or vehicles on “access roadways,” unless the latter are constructed and maintained to safely accommodate them — applied.    The ALJ also agreed with the Secretary that the berm, built primarily to hold water in the retention pond, was not constructed or maintained to safely handle vehicular traffic.  Employee exposure was established by two undisputed facts:  that the CAT had been operated on the berm, and that its operator had drowned, when the CAT went into the retention pond.

The ALJ rejected substantially all of the expert testimony by the employer’s expert, finding that his opinion was entitled to little weight, even to the extent it was unrebutted, as it was not based on professional studies, or personal experience with the cited standard.

In finding that Central Florida had failed to comply with the standard, the ALJ stressed the employer’s acknowledgement that it selected the large-model CAT to reduce the time necessary to complete the job.  The ALJ also observed that even a cursory inspection ought to have disclosed that the berm was too narrow for safe operation, and that the proximity of the water abutting the berm risked negatively impacting its stability.

The likelihood that the repeated use of the CAT atop the berm would lead to calamity was, the ALJ concluded, foreseeable to any prudent management official who might bother to inspect it.  Even with an experienced operator, a large dump truck is difficult to control and drive in a straight line.  The dangers of operating the CAT, within a foot or two from the edge of a nine-foot drop, ought to have been obvious. Whether the accident occurred because the CAT was too heavy for the berm, or the berm was too narrow for safe transit, the ALJ concluded, clearly the berm was not constructed or maintained to allow the CAT to operate safely.  Hence, the standard was found to have been violated.

According to the ALJ, proof of the final element of the violation (employee knowledge) required only actual or constructive knowledge of the extant conditions, not necessarily that the same constituted a violation.  “Constructive knowledge” includes what would be disclosed by “reasonable diligence.”  The latter requires the employer to inspect the work area, anticipate hazards, and take measures to prevent violations or accidents from occurring.

The ALJ concluded that, in all likelihood, the employer had had actual knowledge of the hazardous conditions (which he described as “open and obvious,” a drowning hazard being “in plain view”).  At minimum, the employer had constructive knowledge, having disregarded “red flags,” including cautionary material in the manual for the CAT, and had generally failed to collect information sufficient to make an informed judgment concerning the safety of using the CAT 725 on the berm.

The ALJ rejected a host of defenses asserted by the employer, including one that the employer’s acts or omissions assertedly were not the proximate cause of the operator’s drowning.  Not only was that “defense” unfounded based on the evidence, but, as a matter of law, the Secretary is not required to prove the cause of an accident, the OSH Act’s mandate being to prevent accidents, not redress them.  The citation was affirmed, and the recommended penalty approved, accordingly.

On discretionary review granted at the employer’s request, the Commission upheld the ALJ’s decision, but distinguished its reasons from those stated by the ALJ.

First, the Commission found, the Secretary and the ALJ had incorrectly framed the employer’s “vagueness” argument.  The Secretary had argued, and the ALJ had found, that the evidence had shown that a reasonably prudent employer would have recognized that the use of the CAT on the berm was hazardous (and that the hazard was obvious).

Clarifying the legal standard, the Commission pointed out that, with relatively few exceptions (those in which standards are expressly operative only when a hazard has been found to exist, e.g., where PPE is mandated “wherever necessary by reason of hazards”) the Secretary does not need to provide the existence of a hazard, but only the existence of a proscribed condition, each time a standard is enforced.

  As the Commission observed, the cited standard, like most, regulates a condition, without including the existence of a hazard as an element.  It is a so-called “performance standard,” identifying an objective (construction and maintenance, making safe the movement of equipment and vehicles operated on an access road) but not the means for accomplishing it.

Since the Secretary is required to consider the need for a safety or health standard before propagating it, it is rightly presumed that if a condition prohibited under a standard is found to exist, by definition a hazard must have existed.  Beyond proving the existence of a condition prohibited by the standard cited, the Secretary is not required to present further proof of a hazard in any but the exceptional case, in which the existence of a hazard is a stated element of the standard.

Also, the Commission found, the standard cited in the Central Florida case forbade the use of the CAT atop the berm “. . . unless the access roadway or grade is constructed and maintained to accommodate safely . . . “ the movement of the vehicles.  Thus stated, the condition placed the burden of proof on the employer to prove that the condition was satisfied, entitling it to the benefit of the exception. In other words, once the Secretary proved that the CAT was used on an “access roadway,” it became the employer’s obligation to prove that the berm was constructed and maintained to safely accommodate the CAT’s movement.

Thus, correctly stated, the “vagueness” inquiry was not whether the employer knew there was a hazard, but whether it knew, or had fair notice of, what was required of it under the standard.

The Commission rejected the employer’s argument that the Secretary bore the burden to prove the employer’s actions unreasonable, based on evidence of industry custom and practice.  It distinguished the case before it, involving a standard that presumed the existence of a hazard, with precedents requiring such evidence in cases involving generally-worded standards that do not presume the existence of a hazard.  Moreover, the Commission noted, precedents from the Court of Appeals for the Eleventh Circuit (which includes Florida) hold that industry custom and practice evidence is irrelevant, when the employer has actual knowledge of its compliance obligations.  It went on to discuss, in some detail, how the evidence before the ALJ had shown that the employer had had such knowledge.

In sum, the Commission found that the employer had failed to obtain information sufficient to determine that the berm could safely accommodate the CAT; that the employer had actual knowledge of the conditions at the site —specifically (i) the insufficient clearance between the CAT and the edges of the berm; and (ii) the berm’s load-bearing capacity, relative to the CAT’s weight.  It was not necessary, the Commission reiterated, for the Secretary to prove that the employer had known the conditions to constitute a “hazard.”

The citation, the characterization of the violation as “Serious,” and the monetary penalty imposed, were therefore affirmed by the Commission, following its review.

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