NUGENT SERVICE, INC.

OSHRC Docket No. 2541

Occupational Safety and Health Review Commission

April 5, 1976

[*1]

Before: BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

William S. Kloepfer, Associate Regional Solicitor, U.S. Department of Labor

James P. Friedt, for the employer

William C. Frick, Local Chairman, Lodge 341 B.P.A.C., for the employees

OPINIONBY: MORAN

OPINION:

DECISION

MORAN, Commissioner: A decision of Review Commission Judge Sidney J. Goldstein, dated March 4, 1974 and attached hereto as Appendix A, is before this Commission for review pursuant to 29 U.S.C. 661(i). That decision vacated a citation charging respondent with violating 29 U.S.C. 654(a)(1) n1 by (1) requiring employees to lift heavy and bulky objects, (2) failing to provide sufficient material handling equipment for employees to use in lifting heavy and bulky materials, and (3) failing to train employees in the safe and proper methods of lifting materials. Having examined the record in its entirety, we affirm the Judge's decision for the reasons which follow.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n1 That section, commonly referred to as the general duty clause, provides:

"Each employer - (1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees."

[*2]

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

One of the elements complainant must prove to establish any violation of 654(a)(1) is that the condition be one that is "causing or likely to cause death or serious physical harm." n2 In this case complainant's only evidence as to all three allegations which even tends to indicate that the alleged conditions should be so classified is an admittedly serious injury incurred by an employee of respondent. Although we do not necessarily agree with complainant that the occurrence of such an injury ipso facto proves the likelihood of serious harm, we nevertheless need not deal with that question since the record fails to show a sufficient causal relationship between the injury and the alleged hazard.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n2 The other requirements that must be proved by complainant are (1) that the employer failed to render its workplace free of a hazard and (2) that such hazard was a "recognized" one. National Realty and Construction Co. v. OSAHRC, 489 F.2d 1257, 1265 (D.C. Cir. 1973).

- - - - - - - - - - - - - - - - -End Footnotes- [*3] - - - - - - - - - - - - - - - -

The evidence shows that in October of 1972 an employee of respondent, while attempting to life an object weighing 160 pounds, lost control of the object, causing it to hit him on the head and knock him backwards. The employee left work at the end of the day complaining that his back hurt. The next day he went to a doctor who diagnosed the injury as a pulled muscle. Although the evidence is unclear, he apparently stayed home for a few days, then returned to work for some time before being permanently taken off the job when he was diagnosed as having four deteriorating discs. n3 In October of 1973, a full year after the alleged injury, the employee was operated upon.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n3 At one point the employee testified that he was permanently taken off the job in January of 1973. At another point he stated the date to be July of 1973.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Although we do not question the occurrence of the accident, there is insufficient evidence in the record to warrant a conclusion that the employee's subsequent disability [*4] was a direct result of the accident. Aside from the fact that so great a time elapsed between the incident and ultimate diagnosis, there is no testimony directly linking the accident to the final injury. The employee himself testified that he was never told by his doctor that the deteriorating discs were caused by the accident at respondent's worksite. If the causal relationship existed, it would have been very simple for complainant to submit evidence of that fact. Further militating against complainant's contention that the accident at the worksite was the cause of the employee's disability is evidence that the employee had a motorcycle accident in September of 1972, only a month before the accident at the worksite, which caused him to miss five days of work.

Obviously an injury such as "deteriorating discs" can be caused by a myriad of things. Since complainant's case as to all three allegations rests on this injury to prove the likelihood of serious physical harm and failed to show the causal relationship between the accident at respondent's worksite and the employee's injury, we find that complainant has failed to prove this element of a 654(a)(1) violation. n4 A violation [*5] cannot be affirmed on the basis of mere speculation and conjecture. Secretary v. ForWorth Enterprises, Inc., 10 OSAHRC 280, 284 (1974).

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n4 In addition to complainant's lack of proof on the issue, respondent's expert witness testified that respondent's work practices were not likely to result in serious physical injury. He also cited statistics showing that only .6% of all lifting injuries resulted in permanent total disability.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Accordingly, the Judge's decision is affirmed.

CONCURBY: BARNAKO

CONCUR:

BARNAKO, Chairman, concurring:

I concur in the disposition and agree that the Secretary has not established that the alleged recognized hazard is or is likely to cause death or serious physical harm. Indeed, on the record before us we could conclude that serious physical harm is only a remote possibility.

On the other hand, I do not agree with Commissioner Moran's statement "it would have been very simple for complainant to submit evidence" that the one employee's deteriorating disc condition was related to a job accident. As [*6] the Commissioner states correctly the condition "can be caused by a myriad of things."

I do not join in the attachment of the judge's report.

DISSENTBY: CLEARY

DISSENT:

CLEARY, Commissioner, DISSENTING:

I register my dissent. The separate opinions of the majority provide little or no factual predicate for their sweeping assessment of the evidence presented by the whole record. The opinions also do not face squarely the issues posed by the Secretary of Labor's excentions to the Judge's decision.

The issues raised by the Secretary's exceptions are the following:

1. Whether the administrative law judge (hereinafter judge) erred in dismissing the first allegation of the citation for serious violation of section 5(a)(1) of the Act on the ground that the Secretary failed to establish that it was the respondent's policy to require its employees to lift material weighing in excess of 132 pounds without assistance.

2. Whether the judge erred in dismissing the second allegation of the citation for serious violation on the grounds that the citation failed to describe the violation with sufficient particularity and that the Secretary failed to establish that the lack of equipment caused or was likely [*7] to cause death or serious physical harm.

3. Whether the judge erred in dismissing the third allegation of the citation for serious violation on the ground that the Secretary failed to establish that respondent's failure to train employees in the safe and proper methods of lifting materials was a recognized hazard causing or likely to cause death or serious physical harm.

4. Whether the judge erred in holding that the citation for serious violation should be dismissed pursuant to National Realty and Construction Company, Inc. v. OSHRC and Brennan, 489 F.2d 1257 (D.C. Cir., Dec. 13, 1973) on the ground that the record fails to disclose what the respondent could have done, or what equipment or safety measures it could have utilized, to avoid the lifting injuries which had occurred at its workplace.

Several employees, including one supervisor, lifted objects weighing in excess of 132 pounds. Respondent's manager characterized 132 pounds as an "excessive weight" for one person to lift. The testimony of numerous Nugent employees agreed with this opinion. In addition, a safety engineer who participated in designing the terminal testified that, based on lifting guidelines [*8] used by his firm, a lift of 132 pounds would be unsafe. The lifting guidelines were received into evidence over the Secretary's objection. The guidelines based on studies by the Swiss Accident Insurance Institute, show that the maximum limit for a male between the ages of 20-35, using the straight back, leg lift method, is 110 pounds for occasional lifts and 84 pounds for frequent lifts.

The National Safety Council's Accident Prevention Manual for Industrial Operations at 503 (6th ed. 1972), which is in evidence (Exhibit C-3) states the following:

Handling of materials accounts for about 22 per cent of all occupational injuries . . . .

Strains and sprains, fractures and bruises are the common injuries. They are caused, primarily, by unsafe work practices - improper lifting, carrying too heavy a load, incorrect gripping, failing to observe proper foot or hand clearances, and failing to wear personal protective equipment.

Respondent's log of Occupational Injuries and Illnesses, also in evidence (Exhibit C-2) is consistent with this. Some entries are as follows:

Date of Injury

Description

Lost Workdays

 8-11-72

Pulled muscle in back when

0

lifting rug.

 8-25-72

Injured back when lifting

0

box from float.

  9-6-72

Pains in lower abdomen from

2

lifting heavy machinery.

 9-25-72

Pains in back muscle from

2

lifting.

10-10-72

Hurt back while lifting

5

stereo.

10-27-72

Hurt right shoulder lifting.

10

10-30-72

Possible rupture - lifting.

21

10-30-72

Right groin - lifting a

    1 1/4

large carton off of float.

10-31-72

Groin - pain - possible

0

rupture.

11-22-72

Hurt old injury while

0

lifting carpet.

11-22-72

Back.

1

11-28-72

Injured upper r[ight] side

lifting.

11-27-72

Back - pulled muscle.

 12-7-72

Hurt back lifting.

 1-29-73

Hurt back lifting box of

utility parts.

 1-30-73

Picking up rug approximately

0

285 lbs - pain in lower back.

 1-31-73

Moving pallets - weight

0

approximately 500 lbs -

pain in (R) shoulder.

[*9]

The Secretary's evidence and the testimony of respondent's expert witness indicate that 0.6 percent of all lifting injuries result in permanent total disability. I would therefore conclude that the lifting hazards in respondent's workplace are likely to cause serious physical harm.

I do not address the remaining issues raised by the Secretary since they cover matters not addressed by my colleagues.

Appendix A

DECISION

In this action the Secretary of Labor seeks to affirm a Citation for Serious Violation and Proposed Penalty issued to the Nugent Service, Inc. (sometimes hereinafter referred to as the Company or the Respondent) under the provisions of the Occupational Safety and Health Act of 1970. This matter originally arose after an inspection of the Company's worksite in Columbus, Ohio, by Compliance Officers of the Occupational Safety and Health Administration who noted a number of alleged violations of the standards promulgated under the Act.

The infraction in issue is described in the Citation for Serious Violation in the following terms:

(1) Required employees to physically lift heavy and bulky objects in excess of 132 pounds;

(2) Failed to provide sufficient material [*10] handling equipment for use by employees when lifting heavy and bulky materials;

(3) Failure to train employees in the safe and proper methods of lifting materials.

These conditions together constitute recognized hazards that are likely to cause serious physical harm or injury to employees.

in violation of Section 5(a)(1) of the Act which provides that each employer:

"shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees;"

The Respondent submitted that the Citation should be dismissed and the proposed penalty vacated because:

(1) The Citation and Complaint are unenforceably vague;

(2) The Complainant has failed to prove a violation of Section 5(a)(1) of the Act; and

(3) The Complainant has failed to prove a Serious Violation.

At the hearing held in Columbus, Ohio, the parties hereto offered testimony and submitted documentary evidence in support of their respective positions.

Some preliminary undisputed facts may be noted. The Respondent is a labor contractor and employs workers to operate a modern freight outlet owned by the [*11] Terminal Freight Handling Company. The installation is in the nature of a transfer dock where merchandise originating predominately from Sears Roebuck stores is unloaded from incoming trailers and transferred to outbound trucks for delivery elsewhere. The work force consists of approximately ninety men, mainly loaders, checkers, and supervisory personnel who may also assist manual labor.

The first allegation of the Citation for Serious Violation charges that the Respondent required its employees to physically lift heavy and bulky objects in excess of 132 pounds. Although some witnesses for the Complainant testified on direct examination that they indeed lifted heavy objects, invariably upon further examination they admitted it was their understanding that if a package were too bulky or too heavy they were to ask a supervisor for help from a fellow worker or for mechanical equipment such as a forklift. This policy was followed generally.

Witnesses on behalf of the Respondent confirmed the practice of dock workers to seek help if a parcel were beyond their physical capacity. Upon request, either manual or mechanical assistance was furnished when available. In the meantime the [*12] employee was to handle other parcels or await a temporary assignment.

Admittedly there is a variance in the evidence on this particular item, but the overall thrust of the testimony - from witnesses on both sides - was that it was standard operating procedure on the dock to supply either manual or mechanical assistance to those workers who requested such help. Thus on the basis of the record as it now stands, the Complainant has not established that it was Nugent Service policy to require its employees to lift physically objects in excess of 132 pounds as alleged in the Citation and Complaint.

The second paragraph of the Citation alleges that the Respondent failed to provide sufficient material handling equipment for use by employees when lifting heavy and bulky materials, but this document does not inform the Company wherein its equipment was deficient. At the hearing the Secretary suggested that at least an additional forklift was required, but there is nothing in the record to indicate that another forklift would have prevented any of the accidents related to lifting or that this extra equipment would avoid the hazards of loading dock employment. Therefore, with respect to [*13] the second paragraph of the Citation it is held that the Secretary has failed to establish a violation of Section 5(a)(1) of the Act.

Finally, the Citation recites a failure to train employees in the safe and proper methods of lifting materials. To be sure, the record discloses that prior to the Citation the Respondent did not have a formal safety program. New loaders, however, were shown around the premises as the work operation was explained and the various safety features were pointed out. They then were assigned to veteran loaders for a few days to learn loading dock operation techniques. In this connection all dock employees appeared to be aware of proper methods of lifting heavy or bulky objects. Thus while there was no formal training program in effect prior to the Citation, it does not necessarily follow that this lack of formality resulted in a recognized hazard likely to cause serious physical harm.

In the foregoing discussion, the fact that there have been a number of lifting injuries has not been ignored. Nevertheless, the record does not disclose what the Respondent could have done, or what equipment or safety measures it could have taken to avoid them. As was [*14] pointed out in a recent case involving Section 5(a)(1) of the Act, National Realty and Construction Company, Inc. v. Occupational Safety and Health Review Commission and Secretary of Labor, No. 72-1978 (D.C.) decided December 13, 1973,

"* * * actual occurrence of hazardous conduct is not, by itself, sufficient evidence of a violation, even when the conduct has led to injury."

The regulations of the Commission impose upon the Secretary the burden of proving a violation of the general duty clause; and if the Secretary fails to produce evidence on all necessary elements of a violation, the record will lack substantial evidence to support a finding in the Secretary's favor. Under Section 5(a)(1), the Secretary must prove (1) that the employer failed to render its workplace free of a hazard which was (2) recognized and (3) causing or likely to cause death or serious physical harm. As the record stands, the Secretary has not sustained this burden.

From the foregoing, it is concluded that the Secretary has failed to establish that the Respondent was in violation of Section 5(a)(1) of the Occupational Safety and Health Act of 1970 as alleged in the Citation for Serious Violation. [*15] Accordingly, the Citation and the proposed penalty therefor are VACATED.

Dated: March 4, 1974

Sidney J. Goldstein, Judge, OSHRC