COR 49-8578 [¶23,194R]
SERIOUS VIOLATION – COMPETENCE OF WITNESSES Labor Code § 6432(g) (2022) – The Division witness was considered competent to testify as to the issue of the existence of a serious violation even though his division-mandated training was not current. A Division safety engineer may still offer opinion testimony regarding the serious classification, provided there is otherwise a valid evidentiary foundation for the opinion, such as expertise on the subject, reasonably specific scientific evidence, an experience-based rationale, or generally accepted empirical evidence. SERIOUS VIOLATION - EVIDENCE Circumstantial and direct evidence, as well as common knowledge and human experience, may also support the serious classification. SERIOUS VIOLATION – DEFINITION OF “REALISTIC POSSIBILITY” Labor Code § 6432(a) (2022) – The Board interpreted the term “realistic possibility” that death or serious physical harm could result from the actual hazard created by the violation refers not to the probability that an accident will occur, but rather to the possibility, if an accident occurred, that death or serious physical harm could result from the accident (Ontario Refrigeration Service, Inc., Cal/OSHA App. 1327187, DAR (March 22, 2022) [Digest ¶ 23,172R].) EMPLOYER DEFENSES – KNOWLEDGE OF EMPLOYER Labor Code § 6432(c) (2022) – violation of safety rules by the deceased employee, who was also a supervisor, was attributed to Employer and supported the conclusion that Employer failed to enforce its safety program. Further, the employee’s knowledge of these hazards could also be imputed to Employer, demonstrating that the violation was not unforeseeable. As such Employer did not rebut the presumption that the violation was Serious. ASSESSMENT OF CIVIL PENALTIES Cal. Code Regs, tit. 8, § 3650(t)(14)(A) (2022) – Since Employer’s petition asserted no challenge to the ALJ’s assessment of penalty for the citation, the penalty amount of $3,375 was affirmed.Digest of COSHAB’s Decision After Reconsideration dated August 26, 2022, Inspection No. 1192534.
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