IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Special Action Industrial Commission

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1 NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c; ARCAP 28(c; Ariz. R. Crim. P PROGRESSIVE SERVICES, INC., v. Petitioner, THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent, IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE DIVISION OF OCCUPATIONAL SAFETY AND HEALTH OF THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent Party in Interest. No. 1 CA-IC DEPARTMENT E MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure Special Action Industrial Commission ICA Insp. No. S2603/ Administrative Law Judge Robert F. Retzer, Jr. DECISION AFFIRMED The Cavanagh Law Firm, P.A. By David A. Selden Julie A. Pace Taylor C. Young Attorneys for Petitioner Employer Andrew F. Wade, Chief Counsel The Industrial Commission of Arizona Attorney for Respondent Phoenix Phoenix

2 Division of Occupational Safety and Health The Industrial Commission of Arizona By Rachel C. Morgan Catherine Marie Bohland Attorneys for Respondent Party in Interest Phoenix J O H N S E N, Judge 1 This is a special action review of a decision by the Arizona Occupational Safety and Health Review Board ( Review Board affirming an award by an administrative law judge ( ALJ upholding two citations issued to Progressive Services, Inc. dba Progressive Roofing ( Progressive for violating roofing standards issued by the Occupational Safety and Health Administration ( OSHA and enforced by the Arizona Department of Occupational Safety and Health ( ADOSH. For the reasons stated below, we affirm. FACTS AND PROCEDURAL BACKGROUND 2 Progressive contracted to install a roof on a new school gymnasium, known as the Desert Thunder Project ( Desert Thunder. On September 25, 2008, the day roofing work was to begin, a Progressive employee died when he fell through a hole on the roof to a concrete floor 26 feet below. The accident occurred while Progressive workers on the roof were maneuvering a handcart loaded with roofing materials. The cart suddenly 2

3 slipped, and the worker who was pulling the cart fell through the hole. 3 Two days before the accident, Steve Elsley, Progressive s project manager, and Juan Vega, the Progressive field superintendent, attended a preconstruction meeting at the job site. During the meeting, they and others went on the roof of the building; they reached the roof through a 31-inch-by-31- inch hole. The hole they used to reach the roof was the hole through which the decedent fell two days later. At the time of the preconstruction meeting, the hole had not been curbed, covered or marked in any way. During the meeting, the general contractor acknowledged that it was responsible for having all roof openings curbed and covered, pursuant to OSHA regulations, before roofing began. 4 Julio Valenzuela was the foreman for Progressive s Desert Thunder roofing crew. He arrived at 6 or 6:30 a.m. on September 25 to prepare to load the roofing materials onto the roof. As foreman, before work began, he was required to inspect the roof for holes and other hazards. He went to the roof to perform that inspection. No roofing materials had been loaded when he arrived. He saw some concrete blocks, metal parts, pallets and three covered curbs on the roof. No one had told Valenzuela how many holes were to be cut in the roof, or that 3

4 one of the holes had been uncovered and uncurbed two days before. The morning of the accident, there were three secured curbed holes on the roof. Valenzuela checked two of the curbed holes but after the accident could not remember if he checked the third curbed hole. Photographs taken of the accident scene show a four-by-eight foot piece of particle board lying beside the fourth (unsecured hole. Valenzuela testified he did not see a four-by-eight foot board on the roof; he said if he had seen such a board, he would have looked under it. 5 Bryce Rucker, an ADOSH compliance officer, investigated the accident. When he picked up the four-by-eight foot board after the accident, he noticed that the roof deck beneath the board was clean and shiny, while the rest of the metal roof deck was dusty and covered with footprints. Rucker testified that when the Progressive foreman performed his inspection, he should have noticed an assembled but unused curb sitting on the roof, which Rucker said should have alerted the foreman to the fact that there might be an unsecured hole. ADOSH cited Progressive in the employee s death. 1 After Progressive sought a hearing, the ALJ took four days of testimony. 1 Citations also were issued to the general contractor and another subcontractor. 4

5 6 Among the witnesses was James Stanley, the president of FDR Safety, an occupational safety and health consulting, training and staffing company, who testified as an expert witness for ADOSH. Stanley testified Progressive had both actual and constructive notice of the unsecured hole through which its employee fell. He stated that actual notice occurred when Elsley and Vega attended the preconstruction meeting and accessed the roof through the hole. According to Stanley, Progressive acquired constructive knowledge through Valenzuela, who should have identified the hazard when he performed his roof inspection. 7 The Progressive field superintendent, Vega, testified that an adequate inspection of a roof should reveal an unsecured hole. Vega further conceded that someone inspecting a roof should notice a four-by-eight foot particle board lying on the roof, and should notice an extra unused curb on the roof. He also said that before the foreman inspects the roof, he should know how many roof openings were to be cut into the roof. 8 Keith Feininger, Progressive s safety director, testified that when a roof deck is ready to be loaded with roofing materials, it is usually pretty spotless. He stated that frequently there are stray boards on roofs, and that if the foreman had seen a board while performing his roof inspection, 5

6 he should have told the superintendent and had it removed. On cross-examination, Feininger testified that no one from Progressive s safety department inspected the Desert Thunder roof deck before the roofing crew started its work. He agreed that Progressive had no policy of delegating the safety of the roof to another contractor, and that he would expect the roofing foreman to look for hidden roof holes while performing his inspection. 9 The Progressive project manager, Elsley, likewise testified that before it started work on the deck, Progressive needed to ensure that curbs and covers were properly secured on all holes. He added that even if the general contractor has the responsibility to make sure that holes in the roof are covered, Progressive still should check to make sure the covers are in place. 10 Johnny Zamrzla testified as an expert for Progressive. He stated it is not unusual to find boards lying on roof decks at construction projects. He said that for that reason, a fourby-eight foot board on the roof deck would not make much of an impression on a foreman performing a roof inspection. Zamrzla testified that no one would expect to find a roof hole underneath a loose board. He also stated that it is not realistic to expect the foreman or the roofing crew to refer to 6

7 the blueprints or construction plans prior to performing a roof installation. 11 The ALJ affirmed two citations. The first cited Progressive for violating 29 C.F.R (i(3 (2011, requiring roof holes to be covered securely, and the second cited the company for violating 29 C.F.R (i(4, requiring hole covers to be marked or identified as such. 2 Progressive timely requested review before the Review Board, and the Board affirmed the ALJ s decision. Progressive next brought this appeal. See Ariz. Rev. Stat. ( A.R.S. section (I (2011. DISCUSSION A. Standard of Review. 12 On review of a decision of the Review Board, we will affirm the Review Board s findings of fact if they are supported by substantial evidence. A.R.S (I; McAfee-Guthrie, Inc. v. Div. of Occupational Safety & Health of Indus. Comm n of Ariz., 128 Ariz. 508, 510, 627 P.2d 239, 241 (App B. The Record Supports the Decision of the Review Board. 13 Based on evidence taken in the hearing before the ALJ, the Review Board concluded that the hole through which the employee fell was covered by the particle board, which was not 2 Absent material revisions after the relevant date, we cite a regulation or statute s current version. 7

8 secured or marked. The Review Board held Progressive knew from the preconstruction meeting that the hole existed and was not secured or marked, and Progressive should not have relied on the general contractor s assurance that all holes on the roof had been covered and secured but instead, should have performed a reasonable inspection of the roof. Had Progressive inspected the roof with reasonable diligence, the Review Board concluded, it could have discovered the existence of the unsecured hole and prevented the accident. 14 In arguing that the Review Board s decision should be reversed, Progressive contends that under the multi-employer work site doctrine, it was not responsible for the hazardous roof hole. It contends it neither created the hazard nor had the authority to correct it, and it took reasonable alternative measures to literal compliance with the applicable OSHA standards to protect its employees. 15 This court recognized the multi-employer work site doctrine in Arizona Public Service Co. v. Industrial Commission of Arizona, 178 Ariz. 341, 873 P.2d 679 (App In that case we relied on two OSHA cases, Anning-Johnson Co., 4 BNA OSHC 1193 (Nos & 4409, 1976, and Grossman Steel & Aluminum Corp., 4 BNA OSHC 1185 (No , Ariz. at , 873 P.2d at Under the multi-employer work site 8

9 doctrine, each employer at a multi-employer job site must make a reasonable effort to detect violations of standards not created by it but to which its employees have access and, when it detects such violations, to exert reasonable efforts to have them abated or take such other steps as the circumstances may dictate to protect its employees. Id. at 344, 873 P.2d at 682 (citations omitted. 16 We reject ADOSH s contention that Progressive has waived reliance on this so-called Anning-Johnson/Grossman rule by not addressing it during the administrative proceedings. Progressive raised the doctrine in its interrogatory answers; moreover, Stanley, the ADOSH expert witness, testified about the multi-employer work site doctrine and explained its significance in the context of the facts of this case. 17 To defend against an OSHA citation under the Anning- Johnson/Grossman rule, a subcontractor must establish that it neither created nor controlled the hazard and that it either took all reasonable and realistic steps to protect its own employees or that it did not have notice of the hazard. Anning- Johnson Co., 4 BNA OSHC at In a case such as this, in which the hazard was not created by the employer, the employer will not be liable if it did not have nor with the exercise of reasonable diligence could have had notice of the hazard. Id. 9

10 The citations against Progressive did not allege the company created or controlled the hazard; instead, they were premised on Progressive s alleged failure to take reasonable and realistic steps to protect its employees. See generally Electric Smith, Inc. v. Sec y of Labor, 666 F.2d 1267, 1270 (9th Cir Progressive argues that it took reasonable and realistic alternative measures to ascertain the safety of the roof by verifying with the general contractor that the general contractor would ensure that all holes in the roof would be secured before Progressive s work began. At the preconstruction meeting, it provided the general contractor with a written checklist of items that had to be completed before roofing could begin. The list expressly required the general contractor to cover all roof openings, i.e. curbs, skylights, ect. [sic]... per OSHA requirements prior to the loading of the roof materials. Progressive points out that it did not send its roofing crew to begin work until the general contractor s superintendent assured Progressive that all of the roof holes had been cut, curbed and covered. Finally, it points to the roof inspection that Valenzuela performed the morning roofing work was to begin. 19 We conclude substantial evidence supports the Review Board s decision that Progressive failed to exercise reasonable 10

11 diligence to discover the unsecured hole, and for that reason had at least constructive knowledge of the hole s existence the morning of the accident. Progressive knew from the preconstruction meeting two days before work began that the hole existed and was not then secured; the location of the hole also was shown on blueprints available to Progressive. As noted, Vega conceded that the foreman who performed the inspection the morning of the accident should have been informed of the number of holes that were to be cut into the roof and should have noticed the unused curb on the roof. 20 Although Progressive argues that its crew would not have recognized that a particle board lying on a roof deck might conceal an unsecured hole, the foreman testified that if he had seen a four-by-eight foot board on the roof, he would have looked beneath it. He testified, however, that he did not remember seeing such a board on the roof that morning. In that regard, the ALJ adopted the testimony of Rucker, the ADOSH inspector, and its expert witness, Stanley. See Malinski v. Indus. Comm n of Ariz., 103 Ariz. 213, 217, 439 P.2d 485, 489 (1968 (ALJ s duty is to resolve all conflicts in the evidence and to draw all warranted inferences. These witnesses concluded that, under the circumstances, an adequate roof inspection would have revealed the hole. Particularly given 11

12 that the roof had been cleared in preparation for Progressive to begin loading its roofing materials, evidence supports the conclusion that the inspection was not diligent. Although Progressive argues that Stanley testified that roofing employees should not lift or nudge every stray board on a roof to look for concealed holes, the Review Board could have concluded that the Progressive foreman should have known that there were four holes to be cut into the roof and that three of those holes were visible and secured, and should have seen a fourth unused curb sitting to the side. Under those circumstances, the Review Board could have concluded that the foreman should have spotted the particle board and taken steps to safely determine whether it concealed the missing hole. 21 Although Progressive argues the general contractor told it before work began that the holes on the roof had been secured, the Review Board held those assurances did not relieve Progressive from its duty to make the job site safe for its employees. Progressive does not argue that the general contractor s assurances eliminated any obligation on its part to inspect the roof before beginning work. When, as we have held, the evidence supports the conclusion that Progressive could have discovered the unsecured hole by a reasonably diligent 12

13 inspection, we agree that the general contractor s assurances did not immunize Progressive from liability. C. Alleged Due-Process Violations. 22 Progressive also argues we should reverse the Review Board s decision because of several alleged due-process violations. Progressive first contends the standards applied by the Review Board were so vague as to violate its right to fair notice. The premise of this argument is that the citations issued to Progressive were effectively based on an alleged violation of a roof inspection standard not found in rule or regulation. In response, ADOSH argues Progressive was not cited for failure to perform an adequate roof inspection, but instead, for allowing its roofing crew to work in close proximity to an inadequately covered and unmarked hole. 23 Due process requires notice and an opportunity to be heard. Iphaar v. Indus. Comm n of Ariz., 171 Ariz. 423, 426, 831 P.2d 422, 425 (App We cannot conclude that Progressive lacked fair notice of the scope of its obligation to conduct a reasonably diligent inspection of the roof. Each of the Progressive witnesses testified the company was obligated to inspect the roof before beginning work. Vega testified the foreman should have been informed of the number of holes to be cut in the roof and should have spotted the unused curb and the 13

14 large particle board. Moreover, the Progressive foreman testified that if he saw a four-by-eight foot board lying on a deck that was purportedly ready for roofing, he would lift the board to see what was beneath it. The record supports the conclusion that the requirements of a reasonably diligent roof inspection were not unknown to Progressive. 24 Progressive next argues that it was denied due process because ADOSH s expert witness was allowed to be present in the hearing room during its employees testimony. We need not decide whether the ALJ erred by denying Progressive s request to exclude the expert because Progressive does not argue it was prejudiced by the ALJ s ruling. As ADOSH noted, the ALJ limited the expert witness s testimony to opinions he developed prior to the hearing. 25 Progressive next argues that the Review Board s decision must be set aside because it relied on the OSHA general duty clause, which was not mentioned in the two citations affirmed by the ALJ. Arizona law requires every employer to provide its employees with a safe place of employment, free from recognized hazards that are... likely to cause death or serious physical harm. A.R.S (A (2011. In that regard, Arizona has adopted the federal OSHA construction standards and requires all employers in the 14

15 construction industry to comply with the federal regulations in 29 C.F.R See A.R.S (B; Ariz. Admin. Code R ( The citations issued to Progressive were for violations of standards contained in this part of the federal regulations. The ALJ referred to each element of the cited standards and made findings regarding each element. In its decision, although the Review Board recognized Progressive s general statutory duty to provide a safe work environment, it specifically addressed the cited OSHA standards and found that the evidence supported violations of those specific standards. We decline to hold the Review Board s decision is legally insufficient because it cited to the general duty statute. 27 Progressive finally argues it was denied due process because ADOSH exercised its power in another case to strike the ALJ who presided over the hearing in this case. It argues that because he was struck in the other case, the ALJ was motivated to even out his decisions by ruling in ADOSH s favor in this case. 28 Any interested party to an Industrial Commission matter may file an affidavit for a change of ALJ for bias or prejudice. See A.R.S (I, (J (2011. Progressive points to no rulings or comments by the ALJ in this case to 15

16 support its generalized assertion that because ADOSH struck him in the other matter, the ALJ was biased against Progressive in this case. In the absence of such support, we cannot accept Progressive s argument that it was deprived of due process. See Jenners v. Indus. Comm n of Ariz., 16 Ariz. App. 81, 83, 491 P.2d 31, 33 (1971. CONCLUSION 29 For the foregoing reasons, we affirm the Review Board s decision. CONCURRING: /s/ DIANE M. JOHNSEN, Presiding Judge /s/ PATRICIA A. OROZCO, Judge /s/ MAURICE PORTLEY, Judge 16