49 COR 40-8562 [¶23,184]

SAFE PRACTICES AND PERSONAL PROTECTION, MISCELLANEOUS SAFE PRACTICES – MACHINERY AND EQUIPMENT NOT USED OR OPERATED UNDER CONDITIONS OF SPEED, STRESSES, LOADS, OR ENVIRONMENTAL CONDITIONS CONTRARY TO MANUFACTURER’S RECOMMENDATIONS Cal. Code Regs, tit. 8, § 3328(a)(2) (2022) – Based upon the testimony of the Division’s witness as to the contents of the forklift manufacturer’s Operator’s Manual, the Division  established Employer violated the safety order by using or operating a forklift under conditions of speeds, stresses, loads, or environmental conditions contrary to manufacturer’s recommendations. EVIDENCE RULES Cal. Code Regs, tit. 8, § 376.2 (2022) – The failure of the Division to seek admission of the Operator’s Manual into evidence did not preclude testimony regarding the contents of the Operator’s Manual being credited in this specific case. Adequate indicia of reliability existed in the instant matter. VIOLATIONS – SERIOUS CLASSIFICATION ACCIDENT-RELATED Labor Code § 6432(a) (2022) – the Division established a rebuttable presumption that the citation was properly classified as Serious. The causal nexus between the Serious violation and the injury was sufficient to sustain the Accident-Related classification. DEFENSES – UNFORSEEABLE EMPLOYEE ACT Employer could have known of the hazard with the exercise of reasonable diligence and the violation was foreseeable. The unforeseeable employee act defense was not established.  ASSESSMENT OF CIVIL PENALTIES Cal. Code Regs, tit. 8, § 336(c)(1) (2022) – The violation was properly classified as Serious, Accident-Related and the penalty of $18,000 was found reasonable.

Digest of COSHAB’s Decision After Reconsideration dated July 13 2022, Inspection No. 1332867.


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