Secretary of Labor,

	

 

          Complainant

	

 

           v.

	

             OSHRC Docket No. 08-1013

Extendicare Health Care Services, Inc., d/b/a Arbors at Delaware,

	

 

          Respondent.

	

 


Appearances:


            Linda M. Hastings, Esquire, Office of the Solicitor, U.S.
Department of Labor, Cleveland, Ohio

                          For the Complainant.


             Jeffrey J. Lauderdale, Esquire, Calfee, Halter and
Griswold, LLP, Cleveland, Ohio

                          For the Respondent.


Before:            Administrative Law Judge Stephen J. Simko, Jr.



DECISION AND ORDER


            On April 22, 2008, the Occupational Safety and Health
Administration (OSHA) conducted an inspection of Respondent’s facility,
Arbors at Delaware (Arbors), located in Delaware, Ohio. OSHA initiated
the inspection after learning of an accident involving one of Arbor’s
employees. As a result of the inspection, Arbors was issued a Citation
and Notification of Penalty. Item 1 alleged a serious violation of the
general duty clause. Items 2 and 3 alleged violations of 29 CFR §
1910.332(b)(1) and 29 CFR § 1910.335(a)(1)(i). Arbors contested the
citation. A hearing in this matter was held in Columbus, Ohio, on March
3, 2009. At the hearing, the parties announced they had settled Items 2
and 3. On May 18, 2009, the parties submitted a signed Stipulation and
Settlement Agreement resolving Items 2 and 3. On May 19, 2009, the Court
approved the agreement. At the hearing, the parties addressed Item 1,
the remaining item. Following the hearing, the parties filed
post-hearing briefs. For the reasons that follow, Item 1 of Serious
Citation 1 is vacated. 

BACKGROUND

 

            Arbors, a skilled nursing facility with about 105 employees,
is one of approximately 400 facilities operated by Extendicare Health
Care Services. Arbors has eight departments, including, among others,
nursing, maintenance and activities. Each department has a director who
reports to Amber Downey, the Director of Operations. Ms. Downey is
responsible for the entire facility. She is also responsible for
ensuring the facility follows state and federal regulations (Tr. 9-10,
112-14).

            Joseph Foggin had been the Maintenance Director at Arbors
since April 2007. Before then, Mr. Foggin had held the same position at
another facility, and he had 17 years of experience of working in
maintenance in nursing homes before joining Arbors. On April 21, 2008, a
contractor called Fire Protection Specialists (FPS) was at Arbors
working on the sprinkler system. Before noon, Mr. Foggin and his
assistant, Michael Hensen, had been installing a flat-screen television
on the dining room wall. In so doing, they had been using the ladder FPS
had brought with it. Around noon, the FPS workers went to lunch, leaving
their ladder there. Ardella Layne, Arbors’ Activities Director, thought
she smelled smoke and told Mr. Foggin. Mr. Foggin could not smell
anything, but he decided to climb up into the attic to see if there was
a problem. To do so, he used the FPS ladder. After about two minutes,
Mr. Foggin descended from the attic and reached for the ladder with his
right foot. He put that foot on the ladder, and, as he tried to bring
his left foot down, the ladder tilted. Mr. Foggin then grabbed onto the
metal grid of the drop ceiling to keep from falling. However, the grid
broke loose and Mr. Foggin fell, breaking his wrist and hitting his head
on a handrail that ran along the lobby wall. Mr. Foggin was taken to a
hospital, where he went into a coma. He was still in a coma at the time
of the hearing (Tr. 11, 126, 162-64, 172-75; Exhs. C-13, C-15).

            Larry Johnson is the OSHA Compliance Officer (CO) who
investigated the accident. He examined the ladder Mr. Foggin had used,
and he photographed it and the area where the accident had taken place.
He also interviewed witnesses and requested documents. The CO measured
the floor to the drop ceiling, in the area where Mr. Foggin fell, to be
93 inches. He also measured the plenum, the space in between the drop
ceiling and the actual ceiling, to be 13 inches. Mr. Foggin had accessed
the attic, which was above the plenum. He was thus 106 to 108 inches, or
about 9 feet, above the floor. The CO learned from Ms. Layne that she
was watching as Mr. Foggin went up into the attic and then fell. He also
learned that right before he fell, Mr. Foggin’s right foot was touching
the cap, or the very top, of the ladder (Tr. 9-21, 26-33, 38-39, 41-42,
45; Exhs. C-1 through 9, C-13).

            In examining the ladder, the CO noted it was about 6 feet
high. He also noted that on the first rung of the ladder, there was a
label. The label read: “DANGER. Do Not Stand On Or Above This Step. YOU
CAN LOSE YOUR BALANCE.” He further noted that another label on the
ladder stated that its highest standing level was 3 feet and 9 inches.
The second label also referenced the ANSI standard for portable
reinforced plastic ladders. In researching that standard, the CO
determined the applicable provision was section 9.3.2. That provision
stated as follows:

The user shall not step or stand higher than the step or rung indicated
on the label marking the highest standing level of a ladder.


(Tr. 15-19, 37-38, Exhs. C-1 through C-4, C-12, p. 57).

            The CO received various Extendicare documents during his
inspection. One was entitled “Ladder Safety.” That document stated:
“Never use the top two rungs of a ladder for work purpose.” A second
document covered “Safety Rules and Regulations.” That document stated:
“Do not stand on top step of stepladder.” (Tr. 34-36; Exhs. C-10, p. 1,
no. 7, C-11, p. 2, no. 9).

            The CO recommended the citation item alleging a violation of
the general duty clause as there was no specific standard that applied
in this situation. He believed Arbors violated the general duty clause
because Mr. Foggin’s use of the ladder presented a fall hazard. In
addition, Arbors supervisors, such as Ms. Layne and Mr. Foggin himself,
knew he had been using the ladder earlier that day. Also, Ms. Layne was
watching as Mr. Foggin accessed the attic, and Arbors’ own safety
program recognized that using the ladder as Mr. Foggin had was a hazard.
As to abating the hazard, the citation recommended following the
manufacturer’s safety labeling on the ladder and enforcing the portable
ladder safety requirements set out in the ANSI standard (Tr. 45-51).

 

DISCUSSION

            Serious Citation 1, Item 1, alleges a violation as follows:

Section 5(a)(1) of the Occupational Safety and Health Act of 1970: The
employer did not furnish employment and a place of employment which were
free from recognized hazards that were causing or likely to cause death
or serious physical harm to employees in that employees were exposed to
falls from portable ladders:

 

            a.         At the facility, the employer did not ensure that
all portable step ladders in the workplace and available for employee
use were utilized in a safe manner.

On or about April 21, 2008 an employee sustained serious injuries when
he fell from the top of a six foot fiberglass reinforced portable ladder
while investigating a (sic) odor in a (sic) overhead space.

Among other methods, one feasible and acceptable abatement of this
hazard is to follow the ladder manufacturer’s safety labeling on the
first rung below the cap which states, DANGER – Do Not Stand On Or Above
This Step. You Can lose Your Balance. Additionally, enforcement of
portable ladder safety requirements when in use which includes
observance of ladder safety labeling as set forth in ANSI A14.5 2007
Ladder-Portable Reinforced Plastic – Safety Requirements.

            To prove a violation of the general duty clause, section
5(a)(1) of the Act, the Secretary must show that (1) an activity or
condition in the employer’s workplace presented a hazard to employees;
(2) the cited employer or its industry recognized that the condition or
activity was hazardous; (3) the hazard was causing or likely to cause
death or serious physical harm; and (4) there were feasible means to
eliminate or materially reduce the hazard. /See Kokosing Constr. Co./,
17 BNA OSHC 1869, 1872 (No. 92-2596, 1996) (citation omitted). In
addition, the evidence must show that the employer knew or with the
exercise of reasonable diligence could have known of the hazardous
condition. /Active Oil Serv., Inc./, 21 BNA OSHC 1184, 1186 (No.
00-0553, 2005). The knowledge of a supervisor may be imputed to the
employer. /See, e.g., Rawson Contractors, Inc./, 20 BNA OSHC 1078, 1080
(No. 99-0018, 2003).

            Respondent contends that, according to certain Commission
and Circuit Court precedent, when the violative conduct was committed by
a supervisor, the Secretary has the burden of showing the supervisor’s
conduct was foreseeable (pp. 11-13, Respondent’s brief). /See Kerns
Bros. Tree Serv./, 18 BNA OSHC 2064, 2067-68 (No. 96-1719, 2000), citing
to /Pennsylvania Power and Light v. OSHRC/, 737 F.2d 350, 3057-58 (3d
Cir. 1984). /See also Mountain States Tel. and Tel. Co. v. OSHRC/, 623
F.2d 155, 158 (10^th Cir. 1980). However, as the Secretary indicates,
the Sixth Circuit, which has jurisdiction over the site of the accident,
has held that unforeseeable employee misconduct is an affirmative
defense the employer must plead and prove, whether a supervisory or
non-supervisory employee committed the conduct (p. 8, Secretary’s
brief). /Brock v. L.E. Myers Co./, 818 F.2d 1270, 1276-77 (6^th Cir.
1987). Although Respondent did not plead an employee misconduct defense,
this issue was litigated by implied consent. Therefore, if the Secretary
prevails on all elements of her burden of proof, then the burden shifts
to Respondent to prove the alleged violation was caused by unforeseeable
or unpreventable employee misconduct. /Brock v. L.E. Myers Co./, 818
F.2d 1270, 1276-77 (6^th Cir. 1987).

            As to the first element, that is, whether Mr. Foggin’s use
of the ladder was a hazard, I find that it was. The CO testified that
Ms. Layne told him she was 4 feet away and was watching as Mr. Foggin
ascended and then descended the ladder. She also told him that Mr.
Foggin’s right foot was touching the cap of the ladder right before he
fell (Tr. 45). This statement is consistent with Exhibit C-13, Arbor’s
incident report dated April 21, 2008. In that report, Ms. Layne
recounted that Mr. Foggin “was at the top of the ladder holding onto the
metal grid around the ceiling when it broke loose.” Exhibit C-15, a June
2008 affidavit of Ms. Layne, states on page 2 that “Mr. Foggin reached
down with his right foot onto the ladder.” At the hearing, Ms. Layne
testified that Mr. Foggin, in descending, “put his foot on the second
rung of the ladder.” She also put a “B” on C-1 to show which rung she
meant. She then stated that he tried to move his right foot over to make
room for his left foot and that that was when the ladder started to tilt
(Tr. 174-75). Ms. Downey testified that her investigation of the
accident revealed no evidence Mr. Foggin was on the top two rungs of the
ladder. She said that Ms. Layne’s statement in C-15 was not specific as
to where Mr. Foggin had placed his right foot (Tr. 138-40). However, the
CO testified that Mr. Hensen, who was 20 to 25 feet away from the
accident scene, told him he saw one of Mr. Foggin’s feet on the cap of
the ladder right before he fell (Tr. 41-42). I find, based on the
evidence as a whole, that Mr. Foggin placed his right foot on the cap of
the ladder just before he fell, in violation of the label on the ladder
and Arbors’ work rules (Exhs. C-2, C-10, C-11). I further find that,
even if he stepped on the rung Ms. Layne indicated with a “B” on C-1,
doing so was also a violation of the same label and work rules. This is
so because the rung indicated with a “B” on C-1 was the rung just below
the cap of the ladder.

            As to the second element, it is clear that Respondent and
its industry recognized that the cited activity was hazardous. The label
on the ladder shown in C-2 prohibits standing on or above the first rung
of the ladder. Respondent’s ladder safety rules prohibit using the top
two rungs of a ladder (Exh. C-10). Another portion of Respondent’s
safety rules and regulations, prohibits standing on the top step of a
stepladder (Exh. C-11). Further, the ANSI standard noted above,
prohibits stepping or standing “higher than the step or rung indicated
on the label marking the highest standing level of a ladder” (Exh.
C-12). Arbors had 8-foot ladders at the facility for its employees to
use (Tr. 48-49, 61-62).

            As to the third element, the record plainly shows that the
cited activity was causing or was likely to cause death or serious
physical harm. The accident itself, and the circumstances in which it
occurred, establish this element. As to the fourth element, the
Secretary has shown that there were feasible means of eliminating or
materially reducing the hazard, that is, following the safety labeling
on the ladder and enforcing the ANSI standard for portable reinforced
plastic ladders.

            The final element the Secretary must prove is that the
employer knew or with the exercise of reasonable diligence could have
known of the hazardous condition. According to the Sixth Circuit, the
Secretary may meet this burden by demonstrating that the employer did
not provide adequate safety equipment or instruct employees properly on
necessary safety precautions. Stated another way, an employer may not
“fail to properly train and supervise its employees and then hide behind
its lack of knowledge concerning their dangerous working practices.”
/Brock v. L.E. Myers Co./, 818 F.2d 1270, 1276-77 (6^th Cir. 1987)
(citations omitted).

            Ms. Downey testified she ensures all employees at Arbors are
properly trained. All new employees go through a general orientation at
the facility. The orientation covers general safety policies and
procedures and training in blood-borne pathogens and tuberculosis.
Depending on their positions, new employees may also attend training at
other facilities. Maintenance employees attend training at Extendicare’s
Dublin, Ohio facility. Extendicare’s Area Director of Maintenance
conducts that training. Ms. Downey identified Exhibit R-6 as a training
session Mr. Foggin attended on June 6, 2007. She noted Mr. Foggin’s name
was on R-6, the topics covered were attached to R-6, and one topic
addressed was ladder safety. She also noted she had received R-6 for her
records and had provided it to OSHA during the inspection (Tr. 117-20).

            Ms. Downey further testified that she also ensures employees
follow Arbors’ policies and procedures and disciplines those who failed
to comply. The disciplinary system, outlined in the employee handbook,
sets out the three classes of offenses and the number of such offenses
allowed before termination. Class I is for minor infractions, such as
not attending a mandatory meeting. Class II is for major infractions,
such as failing to perform a job duty. Class III is for severe
infractions for which immediate termination results. Ms. Downey
identified Exhibit R-2 as various disciplinary reports. One involved a
maintenance assistant being disciplined for cleaning up cigarette butts
and leaving them in a shed rather than disposing of them properly,
creating a safety issue. Mr. Foggin, the employee’s supervisor, signed
the report, as did Ms. Downey. Ms. Downey said all department directors
report directly to her. She also said that Mr. Foggin had an assistant
that reported to him and that Ms. Layne had an assistant that reported
to her. However, no other employees reported to Ms. Layne. Ms. Downey
noted that Jodi Mains, respondent’s loss control specialist, performs
quarterly safety audits at Arbors. In addition, Arbors performs monthly
safety checks. These involve department directors checking departments
other than their own by utilizing checklists devised by the facility’s
safety committee. The purpose of the checks is to ensure the departments
are following the safety rules on the checklists (Tr. 114-25, 150-53, 156).

            Ms. Downey described Mr. Foggin’s 17 years of experience
before he joined Arbors. She had no concerns about his competence and
believed he was adequately trained, including in ladder safety. She said
he was in charge of all maintenance at the facility, including the
physical plant, electrical systems and plumbing. She also said although
Mr. Foggin reported to her, she did not direct how maintenance did its
work. Rather, any employee needing maintenance work done would put a
work order in a box for that purpose, and maintenance would pick up the
orders and prioritize the work. Ms. Downey knew Mr. Foggin and Mr.
Hensen were hanging a television on the dining room wall on the morning
of April 21, 2008. She was attending to various matters that morning and
did not observe that work. Mr. Foggin went to her office to talk to her
around noon that day. He told her the FPS employees had gone to lunch
and that he himself was going to lunch. The next time she saw Mr. Foggin
was shortly after that, when she saw him right as the accident occurred.
At that time, she did not know what Mr. Foggin was doing or why he was
on the ladder (Tr. 119, 126-33, 144-45).

            Ms. Layne testified that as Activities Director, she is
responsible for providing activities for the residents. She and her
assistant play games with the residents, take them on outings and
arrange for on-site entertainment. Ms. Layne further testified that she
has no maintenance duties, that she supervises no one in maintenance,
and that no one but her assistant reports to her. Her only interaction
with maintenance is when she needs something fixed and fills out a work
order. Ms. Layne further testified that she had put in the request for
maintenance to hang the television on the dining room wall. Her only
involvement with that work was to tell maintenance where she wanted it
put on the wall. She knew Mr. Foggin and Mr. Hensen had to use a ladder
to access a cable in the ceiling. However, when she saw them, they were
hooking up the cable to the back of the television, which did not
require a ladder. When she told Mr. Foggin she smelled smoke, he got the
ladder from the dining room and used it to climb into the attic above
the lobby. Ms. Layne did not direct Mr. Foggin in this regard, and she
did not believe she had the ability to tell him how to do his job. Ms.
Layne believed Mr. Foggin was competent, experienced, and very
knowledgeable about maintenance issues. She had no reason to believe he
did not know how to use a ladder, and, as far as she knew, he did
nothing wrong in how he utilized the ladder that day (Tr. 157-70).

            As noted above, Ms. Downey testified she did not know what
Mr. Foggin was doing at the time of the accident (Tr. 132-33). Her
testimony is supported by the CO, who conceded that, under the
circumstances, Ms. Downey did not have the ability to correct Mr. Foggin
(Tr. 80). The CO also conceded Ms. Layne’s duties had nothing to do with
maintenance and that she did not supervise any maintenance employees
(Tr. 81-83). Ms. Layne’s testimony makes this clear, and she
specifically stated she had no reason to believe Mr. Foggin was doing
anything wrong in using the ladder as he did (Tr. 166). The Secretary
has not established that either Ms. Downey or Ms. Layne had any
awareness of the violative condition such that knowledge may be imputed
to the employer.

            The Secretary has established Mr. Foggin’s knowledge of the
violation, in view of his experience and training and the label on the
ladder itself. However, I conclude his knowledge may not be imputed to
the employer. The record shows Arbors had explicit rules that prohibited
standing on the cap or first rung of a ladder (Exhs. C-10, C-11). The CO
testified the rules were inconsistent (Tr. 188-90). Footnote
<javascript:WPShow('WPFootnote1',%20WPFootnote1%20)> I have compared the
rules, as set out above, and do not find them inconsistent. I find,
therefore, that Arbors had work rules prohibiting the cited condition. I
further find that employees at Arbors were adequately trained, including
Mr. Foggin. Exhibit R-6 shows that Mr. Foggin attended a maintenance
training session on June 6, 2007. The exhibit also shows that one of the
topics was ladder safety. Specifically, the training session covered
C-10, the facility’s ladder safety rules. The CO himself conceded that
Mr. Foggin was adequately trained in ladder use (Tr. 68, 195). Finally,
I find that Arbors had a progressive disciplinary system that was
implemented at the facility and that Arbor’s rules, policies and
procedures were enforced through that system. In addition, quarterly
safety audits and monthly safety checks were performed to ensure that
safety rules were followed. I observed Ms. Downey as she testified in
this regard (Tr. 120-25, 152-53, 156). I found her credible and
convincing and have no reason to doubt her testimony.

            Based on the record as a whole, I conclude Mr. Foggin’s use
of the ladder on the day of the accident was so idiosyncratic and
unforeseeable that his knowledge of the violative condition may not be
imputed to the employer. This is particularly so since Mr. Foggin
clearly was aware of Arbor’s ladder safety rules. In addition, the
facility had 8-foot ladders he could have used on the day of the
accident. It would appear Mr. Foggin used the FPS ladder simply as a
convenience. Regardless, the Secretary has not met her burden of proving
that Arbors knew or with the exercise of reasonable diligence could have
known of the cited condition. Item 1 of Serious Citation 1 is vacated.


FINDINGS OF FACT AND CONCLUSIONS OF LAW

            The foregoing decision constitutes my findings of fact and
conclusions of law in accordance with Federal Rule of Civil Procedure 52(a).


ORDER

            Based upon the foregoing decision, it is hereby ORDERED:

            Citation 1, Item 1, alleging a violation of the general duty
clause, is hereby VACATED.

 

 

                                                                                         \s\
Stephen J. Simko, Jr.

                                                                                    STEPHEN
J. SIMKO, JR.

                                                                                    Judge

 

Date:     June 22, 2009