OR-OSHA v. Stahlbush Island Farms, Inc.

608

Argued and submitted October 10, 2019; penalty vacated and remanded,

otherwise affirmed September 23, 2020

OREGON OCCUPATIONAL SAFETY

& HEALTH DIVISION (OR-OSHA),

Respondent

Cross Petitioner,

v.

STAHLBUSH ISLAND FARMS, INC.,

Petitioner

Cross Respondent.

Workers’ Compensation Board

1600039SH; A167959

475 P3d 114

Petitioner Stahlbush Island Farms seeks judicial review of an order of an

administrative law judge (ALJ) for the Workers’ Compensation Board uphold-

ing a citation issued to petitioner by the Oregon Occupational Safety Health

Administration (OR-OSHA) for a safety violation and assessing a penalty.

OR-OSHA cross-petitions for judicial review, contending that the order errone-

ously reduced the penalty for the violation. Held: Reviewing the board’s order for

substantial evidence and errors of law, ORS 654.290(2); ORS 183.482(8)(a), the

Court of Appeals concluded that OR-OSHA’s determination that petitioner had

committed a violation was supported by substantial evidence and substantial

reason. But the court determined that the board had erred in modifying the pen-

alty that had been determined by the compliance officer.

Penalty vacated and remanded; otherwise affirmed.

Ben C. Fetherston, Jr., argued the cause for petitioner-

cross-respondent. Also on the opening brief was Fetherston

Edmonds, LLP. Also on the answering brief were Kathryn

H. Pawlick and Fetherston Edmonds, LLP.

Colm Moore, Assistant Attorney General, argued the

cause for respondent-cross-petitioner. Also on the briefs

were Ellen F. Rosenblum, Attorney General, and Benjamin

Gutman, Solicitor General.

Before Armstrong, Presiding Judge, and Tookey, Judge,

and Aoyagi, Judge.

TOOKEY, J.

Penalty vacated and remanded; otherwise affirmed.

Cite as 306 Or App 608 (2020) 609

TOOKEY, J.

Petitioner Stahlbush Island Farms seeks judicial

review of an order of an administrative law judge (ALJ)

for the Workers’ Compensation Board upholding a citation

issued to petitioner by the Oregon Occupational Safety

Health Administration (OR-OSHA) for a safety violation

and assessing a penalty.1 OR-OSHA cross-petitions for judi-

cial review, contending that the order erroneously reduced

the penalty for the violation. We review the board’s order

for substantial evidence and errors of law, ORS 654.290(2);

ORS 183.482(8)(a). We conclude that the ALJ did not err in

upholding OR-OSHA’s determination that petitioner had

committed a violation, but that the ALJ did err in modi-

fying the penalty that had been determined by the compli-

ance officer. We therefore affirm the citation but vacate and

remand the order for reconsideration of the penalty.

The facts are largely undisputed. Petitioner is an

agricultural employer that grows and processes agricul-

tural product. One piece of processing equipment is a “steam

peeler.” A conveyor belt carries agricultural product from the

floor level up to an opening at the top of a “hopper,” a metal

tub or container that sits above an elevated platform that

is approximately 12 feet above the floor. The hopper is open

at the bottom, where a second conveyor belt is mounted and

carries agricultural product through a gate to the steam

peeler.2 The hopper’s conveyor belt is recessed within the

side panels of the hopper. The platform under the hopper is

approximately six inches below the hopper’s conveyor belt. It

surrounds the hopper on all sides with approximately three

feet of walkway.

Agricultural product sometimes falls onto the plat-

form surrounding the hopper. Approximately twice per shift,

an employee must climb a ladder to the platform and clear

the agricultural product. Petitioner’s employee was standing

1

OR-OSHA is a division of the Department of Consumer and Business

Services. OR-OSHA’s contested case hearings are conducted by an ALJ for the

Hearings Division of the Workers’ Compensation Board, and the ALJ’s order is

the final order of the board. ORS 654.290(2)(b).

2

The compliance officer who investigated the injury referred to the hopper as

a “transition bin,” because it transferred agricultural product from one conveyor

to another.

610 OR-OSHA v. Stahlbush Island Farms, Inc.

on the platform and clearing agricultural product that had

fallen onto the platform around the hopper’s conveyor. The

conveyor is on a timer and runs for seven seconds every

two to three minutes. When the employee climbed onto

the platform, the conveyor was not running, but employees

had noticed that, when it was running, the conveyor’s roll-

ers were turning, but the belt was not moving. To try to

cause the belt to move, petitioner’s employee pushed on the

underside of the belt with his foot, and it suddenly began

to move. The employee could not pull his foot away before

it got caught and seriously injured at the point where the

belt moves over the belt roller, known as the “ingoing nip

point.”

OR-OSHA, a division of the Department of Business

and Consumer Services (DCBS), is charged with enforcing

the Oregon Safe Employment Act (OSEA), which requires

every employer to

“furnish employment and a place of employment which are

safe and healthful for employees therein, and shall furnish

and use such devices and safeguards, and shall adopt and

use such practices, means, methods, operations and pro-

cesses as are reasonably necessary to render such employ-

ment and place of employment safe and healthful, and

shall do every other thing reasonably necessary to protect

the life, safety and health of such employees.”

ORS 654.010. The OSEA authorizes the director of DCBS to

“[d]eclare and prescribe what devices, safeguards or other

means of protection and what methods, processes or work

practices are well adapted to render every employment and

place of employment safe and healthful.” ORS 654.035.

As authorized by the director of DCBS, OR-OSHA

has adopted OAR 437-004-1910(4)(a)(A), which requires that

agricultural employers protect employees from contact with

moving machinery parts by “a guard or shield or guarding

by location.” OAR 437-004-1970(4)(a), relating to “farm-

stead” equipment, requires the guarding of all “nip points

of all power driven gears, belts, chains, sheaves, pulleys,

sprockets, and idlers by protective shield, location, guard-

rail or fence.” Thus, by administrative rule, a “nip point” is

a moving machinery part that must be “guarded.”

Cite as 306 Or App 608 (2020) 611

It is undisputed that, at the relevant time, the nip

point of the hopper conveyor belt was not guarded by a phys-

ical guard or shield. A moving machinery part need not be

guarded by a physical guard if it is “guarded by location.” A

moving machinery part is guarded by location if, “because of

its location, no employee can inadvertently come in contact

with the hazard.” OAR 437-004-1910(6).

A hazard is defined as a “condition, practice, or act

that could result in an injury or illness to an employee.”

OAR 437-001-0015(36). After an investigation by a com-

pliance officer, OR-OSHA determined that the ingoing nip

point was a hazard that could be inadvertently contacted by

an employee working on the platform and that, therefore,

was not guarded by location. OR-OSHA cited petitioner for

a violation of OAR 437-004-1910(4)(a)(A).

Petitioner requested a hearing, contending that the

nip point was guarded by location as a result of the belt’s

recessed placement within the frame of the hopper, which,

petitioner contended, made it impossible for either the belt

or the nip point to be contacted inadvertently.

OR-OSHA presented testimony from the compli-

ance officer. The compliance officer testified that a moving

machinery part is guarded by location if, from the work-

space, a person would not be exposed to the hazard. The

compliance officer testified that a nip point is a hazard. He

opined that an employee working on the platform could acci-

dentally contact the nip point with a tool or by slipping and

falling on the platform. For that reason, the compliance offi-

cer testified that the nip point was not guarded by location.

A violation’s penalty is determined by ratings for

“probability” and “severity.” OAR 437-001-0145. Based on

consideration of the criteria listed in OAR 437-001-0135, the

compliance officer assigned a probability rating of “medium”

to the unguarded nip point in determining the amount of

the penalty.

The ALJ agreed with the compliance officer that the

nip point was a hazard. Finding that a person could inad-

vertently come into contact with the nip point while working

on the platform and that petitioner’s employee had, in fact,

612 OR-OSHA v. Stahlbush Island Farms, Inc.

inadvertently come into contact with the nip point, the ALJ

determined that the nip point was not guarded by location.

The ALJ upheld OR-OSHA’s determination that petitioner

had violated OAR 437-004-1910(4)(a)(A) by exposing employ-

ees to the hazard of an unguarded nip point.

However, the ALJ disagreed with the compliance

officer’s determination that the probability rating for the

violation should be “medium,” concluding, instead, that the

violation had a low probability of occurrence and should

therefore be rated as “low.” Based on that determination,

the ALJ reduced the penalty.

On judicial review, petitioner contends that the ALJ

incorrectly interpreted OAR 437-004-1910(6) to require

consideration of the injured worker’s subjective intent in

contacting the hazard and, further, that the order fails to

articulate a rational connection between the facts and the

order’s legal conclusions. Petitioner’s argument is partially

premised on the contention that OR-OSHA misidentified

the hazard. In petitioner’s view, the hazard consists of both

the nip point and the conveyor belt, because “the injured

worker would not have ‘inadvertently’ come into contact

with the nip point if he had not intentionally stepped on the

conveyor belt.” Thus, petitioner asserts, the hazard that was

required to be guarded was the combination of the belt and

the nip point and not the nip point alone. Petitioner further

contends that, because the belt was recessed and could only

be contacted deliberately and not inadvertently, the hazard

was, in fact, guarded by location.

We are not persuaded by petitioner’s reasoning.

We reject petitioner’s contention that the evidence requires

the conclusion that, because the conveyor belt is recessed

within the hopper, contact with the hazard could only be

intentional and not inadvertent. Webster’s Third New Int’l

Dictionary 1140 (unabridged ed 2002) defines “inadvertent”

as “heedless, negligent, inattentive” or “unintentional.” The

fact that an employee might not regularly come into con-

tact with a hazard does not negate the possibility that the

employee might come into contact with the hazard inad-

vertently through inattention, carelessness or such other

behavior. The compliance officer testified that an employee

Cite as 306 Or App 608 (2020) 613

clearing agricultural product on the platform could slip and

thereby contact the nip point or could inadvertently contact

the nip point with a tool. The compliance officer did not tes-

tify that contact with the nip point could only occur through

intentional contact with the conveyor belt. The compliance

officer’s testimony is substantial evidence in support of the

ALJ’s finding that the nip point could be contacted inadver-

tently. Our conclusion leads us to a reject petitioner’s conten-

tions that the hazard could only be contacted intentionally

or that OR-OSHA should have identified the hazard as a

combination of the conveyor belt and the nip point.

Petitioner contends that the ALJ erred in reason-

ing that the employee’s subjective intent, rather than objec-

tive conditions, determines whether contact with a hazard

is inadvertent. The ALJ found that, although the employee

“intentionally stepped on the conveyor, his foot getting

caught in the nip point was accidental or inadvertent.” In

petitioner’s view, that statement shows that the ALJ incor-

rectly based his conclusion that the nip point was contacted

inadvertently on the worker’s subjective intent. We do not

understand the order in that way. The ALJ quoted OAR 437-

004-1910(6), which sets forth the objective standard that a

hazard is guarded by location if, “because of its location, no

employee can inadvertently come in contact with the haz-

ard.” The ALJ referred to the compliance officer’s testimony

that “when employees were on the hopper platform, they

would be in a danger zone to the hazard.” The order, when

read in its entirety, shows that the ALJ knew and correctly

applied the standard that objective conditions determine

whether a hazard is guarded by location. The ALJ did not

focus on the injured employee’s intentions. Rather, it is peti-

tioner that has unduly focused on the fact that the employee

intentionally placed his foot on the conveyor belt. That fact

did not negate the possibility, or the evidence, that the nip

point could be contacted inadvertently. The ALJ’s order is

supported by substantial evidence and substantial reason,

and the ALJ did not err in upholding OR-OSHA’s citation

for a violation of OAR 437-004-1910(4)(a)(A).

As noted, a violation’s penalty is determined by its

“probability” and “severity” ratings. OAR 437-001-0145. The

614 OR-OSHA v. Stahlbush Island Farms, Inc.

probability rating is “[t]he probability of an accident that

could result in an injury or illness from a violation[,]” and

is determined by the compliance officer, based on a number

of factors. OAR 437-001-0135.3 Here, the compliance offi-

cer determined that petitioner’s violation had a probability

rating of “medium,” based on evidence of the number and

frequency of employees working on the platform in proxim-

ity to the hazard. But the ALJ disagreed and reduced the

probability rating to “low.” In its cross-petition, OR-OSHA

contends that the ALJ exceeded his authority in reducing

the compliance officer’s probability rating.

At a contested case hearing, OR-OSHA has the

burden of proving “[t]he reasonableness of a contested pen-

alty” by a preponderance of the evidence. OAR 438-085-

0820(1), (3).4 Thus, OR-OSHA’s burden was to prove that the

3

OAR 437-001-0135 provides:

“(1) The probability of an accident that could result in an injury or illness

from a violation shall be determined by the Compliance Officer and shall be

expressed as a probability rating.

“(2) The factors to be considered in determining a probability rating may

include, as applicable:

“(a) The number of employees exposed;

“(b) The frequency and duration of exposure;

“(c) The proximity of employees to the point of danger;

“(d) Factors, which require work under stress;

“(e) Lack of proper training and supervision or improper workplace

design; or

“(f) Other factors that may significantly affect the degree of probability

of an accident occurring.

“(3) The probability rating is:

“(a) Low—If the factors considered indicate it would be unlikely that an

accident could occur;

“(b) Medium—If the factors considered indicate it would be likely that an

accident could occur; or

“(c) High—If the factors considered indicate it would be very likely that

an accident could occur.

“(4) The probability rating may be adjusted on the basis of any other rel-

evant facts which would affect the likelihood of injury or illness.”

4

OAR 438-085-0820 provides:

“(1) OR-OSHA has the burden of proving:

“(a) A denied violation;

“(b) The reasonableness of a contested penalty;

“(c) The reasonableness of a contested correction order.

Cite as 306 Or App 608 (2020) 615

assessed penalty was reasonable, and the ALJ, in reviewing

the penalty, was limited to determining whether OR-OSHA

had met its burden. OR-OSHA contends that the ALJ erred

by independently determining the probability rating and,

derivatively, the penalty, rather than evaluating whether

OR-OSHA’s determination of the probability rating was

reasonable.

We agree with OR-OSHA that the ALJ exceeded

his authority. It is clear from the order that the ALJ made

his own determination of the probability rating:

“[G]iven that no prior accidents occurred over the 18 years

of operation before [the employee’s] accident, and that the

accident involved [the employee] intentionally stepping on

the conveyor, I am persuaded that a ‘low’ probability rating

is more appropriate[.]”

It was not the ALJ’s responsibility to determine a proba-

bility rating, but rather to determine whether OR-OSHA’s

probability rating was reasonable. We therefore vacate the

order and remand for reconsideration of the reasonableness

of the penalty.

Penalty vacated and remanded; otherwise affirmed.

“(2) The party who contests a proposed OR-OSHA order that will grant,

deny, modify or revoke a variance has the burden of proving that the pro-

posed order is incorrect.

“(3) The party having the burden of proving a fact must establish it by a

preponderance of the evidence.”