Opinion
NOT TO BE PUBLISHED
WCAB Nos. RDG108598, ADJ3445477
RAYE, J.
While he attempted to place a large ripper shank into the tool pocket of a Caterpillar bulldozer, the ripper shank fell, killing Dennis Newell, an employee of petitioner Ford Construction Company, Inc. (Ford). The workers’ compensation judge (WCJ) found Ford engaged in serious and willful misconduct that was the proximate cause of the accident. Ford filed a petition for reconsideration with respondent Workers’ Compensation Appeals Board (WCAB), which the WCAB denied. Ford then filed a petition for writ of review with this court, contending the WCJ erred in awarding additional compensation to Dennis’s surviving spouse, respondent Deborah A. Newell, based on Ford’s serious and willful misconduct. According to Ford, there is not sufficient evidence supportive of the finding or the award. We agree and annul the decision of the WCAB, and remand for further proceedings consistent with the views expressed in this opinion.
For the sake of clarity, we will refer to the Newells by their first names. No disrespect is intended.
FACTUAL AND PROCEDURAL BACKGROUND
The Accident
In September 2002 Dennis and a coworker, Kevin Lawson, installed a ripper shank on the tool bar of a Caterpillar bulldozer. The ripper shank was 10 feet in length and weighed between 2, 160 and 2, 250 pounds.
Lawson used the crane and boom with cable attached on his service truck to lift and install the ripper shank. He used a chain with an open eye hook at the end to attach the ripper shank to the cable on the crane. On the end of the cable on the crane was a hook with a safety latch. He ran the chain through the “pocket, ” the area on the tool bar at the back of the bulldozer through which the ripper shank was installed and attached to the bulldozer. Lawson then ran the chain through the eye on the ripper shank and attached the chain to itself with an open hook at the end of the chain.
As Lawson lifted the ripper shank off the ground and was attempting to position it in the pocket on the bulldozer’s tool bar, Dennis offered his help. Initially, Dennis sat in the bulldozer’s cab, manning the controls in the event the tool bar would need to be moved to install the ripper shank. Dennis then left the cab and helped Lawson at the rear of the bulldozer. Nearby, the ripper shank was suspended from the crane of the service truck. Using a six-foot pry bar, Dennis attempted to move the end of the ripper shank to position it for installation into the tool bar.
Dennis got another pry bar and was on the other side of the ripper shank from Lawson. Dennis inserted the pry bar in one of the holes in the ripper shank and, standing on the other side of the ripper shank from Lawson, inserted the bar into one of the holes of the ripper shank at shoulder level. Dennis put pressure on the pry bar in an effort to move it into position. The men each stood about two feet from the ripper shank.
Suddenly the ripper shank came loose from the chain and fell toward Dennis. Dennis attempted to move out of the way, to no avail.
In deposition, Lawson stated he received no formal training in the installation of ripper shanks. The master mechanic at Ford showed Lawson on one occasion how to install the ripper shank.
Subsequent Events
The Division of Occupational Safety and Health (Cal/OSHA) investigated the incident and cited Ford for a general violation of the General Industry Safety Order contained in California Code of Regulations, title 8, section 5044, subdivision (a) and serious violations of the General Industry Safety Orders contained in California Code of Regulations, title 8, sections 4999, subdivision (b)(1) (hereafter Safety Order 4999) and 5042, subdivision (a)(6) (hereafter Safety Order 5042). Dan Nelson, associate safety engineer for Cal/OSHA, investigated the accident, visiting the site several hours after the accident occurred and again the next morning.
A hearing before the administrative law judge for the Cal/OSHA Appeals Board in 2006 set forth the following scenario. According to Nelson, Ford safety coordinator Rich Piombo and Lawson told Nelson that at the time of the accident, a ripper shank had been removed from the Caterpillar’s tool bar. Lawson and Newell intended to replace it with another ripper shank. Piombo told Nelson the workers were trying to insert the ripper shank into the slot in the bulldozer’s tool bar, which is at the rear of the Caterpillar. They used a steel chain installed on the crane hook. The chain, equipped with its own hook, was dropped through the slot in the bulldozer’s tool bar toward the awaiting ripper shank on the ground.
Nelson described the next step, as told to him by Piombo and Lawson, stating the chain would “go through the pad-eye on top of the bar, there looped over and fastened to a link above the hook, where it fits into the throat of the hook - the chain link - where it binds it and takes the pressure and would clamp on to it.”
Piombo did not explain to Nelson how the grab hook connection works. Nelson’s experience included crane and rigging training, but not this specific type of rigging. However, Nelson analogized the rigging to that used to tow cars, with which he was familiar. Based on that experience, Nelson testified: “When the chain is hooked over the link, you can see that the throat of the [grab] hook is rather narrow and long, so that it - the chain - the other links on either side cannot - it can’t escape that when there’s pressure on it. It’s held into the throat. It holds it from sliding up or down. It holds that hook from sliding up or down due to the pressure on it. [¶] Q - Does it hold the hook from coming off? [¶] A - Not if there’s not pressure on it. [Pressure meaning] the weight of the material being lifted -- creates pressure, creates ‘the lock.’ [¶] Q - What do you mean by ‘the lock’? [¶] A - Locking the hook into the, onto the link.”
Nelson explained what he was told happened just prior to the accident. The ripper shank was raised by the crane to a vertical position to pull it into and through the tool bar slot. At the time of the accident, Piombo stated, the ripper shank was standing in a vertical position. Because it was a “close fit, ” the workers used steel bars to align the top of the ripper shank with the tool bar slot. Dennis inserted a steel bar through a hole in the ripper shank tool itself and tried to twist the ripper shank. Lawson, using a second steel bar, attempted to move the bottom of the ripper shank’s “tooth” or “toe” to twist and align the top of the ripper shank so it could be pulled entirely through the slot.
From what Lawson told Nelson, he did not see how the ripper shank detached from the crane hook. Lawson was looking down at the ripper shank’s toe. Lawson noticed only that the ripper shank was “straight up and down” - in a vertical position, being supported by the crane. The toe was touching or resting on the ground. At one point, Lawson looked over his shoulder in time to see the ripper shank already falling as Dennis attempted to move out of the way.
Lawson did offer Nelson an opinion as to how the ripper shank came loose from the attachment. Nelson testified: “Evidently, in his [Lawson’s] opinion, when the chain became slack - when the ripper bar tooth was resting on the ground - the chain became slack and allowed the hook to slide off of the chain link that held the attachment together.”
Nelson concluded Ford violated Safety Order 4999, subdivision (b)(1) because the load was not attached by an effective means and properly rigged. Ford violated Safety Order 5042, subdivision (a)(6) because the chain sling used to lift the ripper bar was not set so that the load could not slip.
Charlie Haener, Ford’s safety director, also testified. He stated the method employed by Dennis and Lawson on the day of the accident in replacing the ripper shank was “the only method Haener has ever known as the acceptable, normal method.” Haener further testified that he “knew of no problems with the method, before the accident. It is the only method [he] believed was appropriate for the task.” In addition, Haener found no damage to the grab hook or chain and testified: “The chain and hook can detach only if tension is absent from the supporting chain.” The administrative law judge dismissed the citations against Ford for the serious violations, finding them unsupported by the evidence.
In September 2003 Deborah filed with the WCAB an application for award for employer’s serious and willful misconduct. Ford answered the application. A hearing followed in 2006.
Deborah offered expert testimony by former heavy equipment operator Cliff Merck and heavy duty mechanic Tom Monahan. According to Merck, the chain and grab hook method used by Dennis and Lawson was not safe because of the possibility the grab hook might come loose. Moving the ripper shank with pry bars posed a danger because it put employees in proximity to the load.
Monahan testified he worked on that particular model of Caterpillar bulldozer for five years and changed the ripper shanks approximately once or twice a week. Monahan never used a chain with a grab hook, since a chain is only as strong as its weakest link and a plain hook can become undone. Nor did Monahan ever use pry bars. He did not agree with the “chain and hook method because there is no way to make it secure. If it comes undone or when the chain goes slack it will fall.”
In addition, Monahan never stood under or next to a load because of what might happen. He did not agree that the employer was unaware of the danger “because it is obvious what the set up is and that it can come undone. Chains are the most dangerous ways to install ripper shanks.”
Ford offered testimony by Haener, Lawson, and Piombo. Haener, Ford’s safety director, knew Ford changed ripper shanks with the chain and grab hook method. However, the grab hook had never come loose prior to this accident. Haener acknowledged testifying at an OSHA hearing that the chain and grab hook could detach if the line was slack. He stated that it is not safe to use pry bars under a load; “however, this is the construction business.” Haener also stated that if the grab hook detached, the load could come loose and injure or kill a bystander.
Lawson testified Ford’s master mechanic demonstrated how to change the ripper shank once. Senior mechanics taught Lawson to use a pry bar to move the ripper shank into position. Lawson was never told not to use pry bars, nor did he remember if the master mechanic had warned him of the danger of slack in the chain. The day of the accident, he and Dennis were approximately two feet from the ripper shank as they attempted to move it.
Piombo, who previously held the safety director position, testified the chain and grab hook method is easier than other methods; it saves a day or two. Piombo also stated that if the cable became slack, the hook might come loose.
The WCJ issued a “Findings & Award” and “Opinion on Decision, ” which held Ford engaged in “serious and willful” misconduct that was the proximate cause of Dennis’s death. The WCJ ultimately affirmed the findings and award in a second opinion on decision.
Ford and Deborah both filed petitions for reconsideration with the WCAB. The WCAB issued a split opinion and order denying the petitions for reconsideration. All three panel members denied Deborah’s petition; two members denied Ford’s petition for reconsideration, while the third issued a dissenting opinion in favor of granting Ford’s petition.
Ford filed a petition for writ of review.
DISCUSSION
Standard of Review
When reviewing a decision or award of the WCAB, we determine whether the decision is supported by substantial evidence. Substantial evidence consists of evidence that is reasonable in nature, credible, and of solid value such that a reasonable mind might accept to justify a conclusion. (Braewood Convalescent Hospital v. Workers’ Comp. Appeals Bd. (1983) 34 Cal.3d 159, 164.)
We do not substitute our choice of the most persuasive evidence for that of the WCAB. Nor do we reweigh the evidence, decide issues of fact, or exercise our independent judgment on the evidence. (Garza v. Workmen’s Comp. App. Bd. (1970) 3 Cal.3d 312, 317; Western Growers Ins. Co. v. Workers’ Comp. Appeals Bd. (1993) 16 Cal.App.4th 227, 233.)
However, the issue of what elements must be present to constitute willful misconduct is one of law. (Rogers Materials Co. v. Ind. Acc. Com. (1965) 63 Cal.2d 717, 721 (Rogers Materials).)
Under Labor Code section 4553, the amount of compensation otherwise recoverable shall be increased one-half where an employee is injured by reason of the serious and willful misconduct of the employer or his managing representative. Various courts have struggled over the issue of just what constitutes willful misconduct on the part of an employer sufficient to invoke section 4553.
In Mercer-Fraser Co. v. Industrial Acc. Com. (1953) 40 Cal.2d 102 (Mercer-Fraser), a building under construction collapsed, killing two workers. The Industrial Accident Commission found serious and willful misconduct on the part of the employer. The Supreme Court annulled the award, finding no evidence the employer, through its foreman, knew the construction was unsafe and that the workers were being placed in a position of danger. (Id. at p. 107.) According to the court, The existence of the danger was not obvious and observable. (Id. at p. 118.)
The Mercer-Fraser court stated: “‘Willful misconduct... necessarily involves deliberate, intentional, or wanton conduct in doing or omitting to perform acts, with knowledge or appreciation of the fact, on the part of the culpable person, that danger is likely to result therefrom.’” (Mercer-Fraser, supra, 40 Cal.2d at p. 117, quoting Porter v. Hofman (1938) 12 Cal.2d 445, 447-448.) Under Mercer-Fraser, willful misconduct occurs when the employer knowingly places the employee in a situation of obvious danger and takes no precautions to protect the employee. Employers must “refrain from such deliberate, knowing and intentional failure to take safety precautions, whereby its employes [sic] were intentionally subjected to known, serious, unnecessary and unreasonable hazards.” (Id. at p. 121.) A failure to comply with this requirement justifies a finding of serious and willful misconduct. (Ibid.)
In Hawaiian Pineapple Co. v. Ind. Acc. Com. (1953) 40 Cal.2d 656 (Hawaiian Pineapple), a forklift driver was injured when a train struck his forklift. The worker was required to drive back and forth across the railway switch tracks, which ran between the main plant and a warehouse. The employer took precautions to avoid accidents at the crossing: warning signs, blinking lights warning of approaching trains, stop signs, and a mirror in the warehouse doorway that reflected the tracks. Some of these measures were taken following a previous near accident between a train and a forklift. The employer also repeatedly warned employees of the danger in crossing the tracks. However, there was evidence the employer knew drivers customarily failed to stop because of their workloads. (Id. at pp. 658-660.)
The Supreme Court annulled the commission’s award of additional compensation, finding the evidence did not show the employer had the knowledge of the consequences of its act or omission necessary to make the performance of that act or omission a willful one. (Hawaiian Pineapple, supra, 55 Cal.2d at pp. 663-664.) The employer attempted to provide safety precautions, albeit inadequately. Although the employer had not done everything a prudent employer might have done, its actions were not so unreasonable as to evince a reckless disregard for the safety of its employees. (Id. at pp. 664-665.)
The Supreme Court reached the opposite result in Keeley v. Industrial Acc. Com. (1961) 55 Cal.2d 261 (Keeley). In Keeley, the employer’s foreman ordered an employee to pull rice from an auger with his hands, knowing that injury would result if someone started the motor that drove the auger. (Id. at pp. 263-265.) The foreman took no precautions to protect the employee, although he knew he was leaving the worker in a position of danger. The foreman forgot the employee was cleaning the auger, started the motor without giving any warning, and severely injured the worker. (Id. at p. 266.)
An auger is a screw-type mechanism run, in this instance, by a gasoline engine. (Keeley, supra, 55 Cal.2d at p. 263.)
The Supreme Court upheld the commission’s finding that the employer, through its foreman, ordered its employee into a position of known danger and then left the area without taking any precautions to protect the employee. (Keeley, supra, 55 Cal.2d at pp. 269-270.) The court noted: “‘While forgetfulness of a known danger alone under some circumstances may constitute only negligence, in the present case there was more than inattention. The sending of an employee into, under or near machinery which, if it moves, will injure him, without providing some means of protecting such employee other than the memory of the foreman when starting the machinery, he being in a position where he could not observe the peril of the employee, was in and of itself sufficient to warrant a finding of wilful misconduct by the commission.’” (Id. at pp. 266-267, quoting Henry J. Kaiser Co. v. Industrial Acc. Com. (1947) 81 Cal.App.2d 818, 829, italics added by Keeley.) Under Keeley, an employer who orders an employee into a known place of danger without taking some precaution to protect against the danger is guilty of serious and willful misconduct.
The court reached a similar result in Rogers Materials, supra, 63 Cal.2d 717 (overruled on other grounds in LeVesque v. Workmen’s Comp. App. Bd. (1970) 1 Cal.3d 627, 636-637). In Rogers Materials, an employee’s pant leg caught in a moving chain on a concrete mixer, causing him to fall and injuring his back and leg. The employee stood on a small platform located behind the truck cab, leaning over the rotating drum in an effort to clean off excess concrete. (Rogers Materials, at p. 719.) The evidence revealed that when the drum revolved, the unguarded chain had a tendency to stretch and flap and that an employee attempting to wash the drum would have to lean over, bringing the employee’s legs in close proximity to the revolving chain. (Id. at pp. 719-720.) Although the employer’s superintendent warned the employee not to wash the drum from the platform, he repeatedly saw the employee on the platform while the drum was rotating and merely warned the employee to be careful. (Id. at p. 723.)
The Supreme Court reviewed Mercer-Fraser, Hawaiian Pineapple, and Keeley and concluded: “These cases differ factually from each other in that the dangerous act or omission of the employer is not of the same type. The same basic principle is enunciated in all of them, however, that an employer commits wilful misconduct when he ‘turns his mind’ to the fact that injury to his employees will probably result from his acts or omissions, but he nevertheless deliberately fails to take appropriate precautions for their safety. The employer’s conduct is measured by this test whether he permits his employees to work by a dangerous method (Hawaiian Pineapple), whether he orders them to perform a hazardous job (Keeley), or whether they are allowed to work in a building where any work is dangerous (Mercer[-Fraser]).” (Rogers Materials, supra, 63 Cal.2d at p. 723.)
The Rogers Materials court concluded that the employer knew its employee was in a position of danger when he washed the drum from the platform. According to the court: “The fact that [the employee] was not specifically ordered to wash the drum while it was rotating cannot shield the employer from liability. Under these circumstances, we believe a finding that the employer was guilty of serious and wilful misconduct was justified on the ground that its failure to provide a guard over the chain at the level of the platform or to otherwise protect Drake from harm while he was performing his duties there constitutes a deliberate omission to act, with knowledge or appreciation of the fact that [the employee] would probably be injured by its omission.” (Rogers Materials, supra, 63 Cal.2d at p. 724.)
Finally, this court, in Erickson v. Workmen’s Comp. App. Bd. (1970) 12 Cal.App.3d 388 (Erickson), cited Rogers Materials in concluding an employee was injured through the serious and willful misconduct of the employer. (Id. at p. 394.) The employer’s foreman permitted an employee to clean a rotary press with the safety guard removed. The employee’s hands became caught in the rotary press rollers. (Id. at pp. 390-391.)
The employer argued the manufacturer taught the cleaning process used and that it was an industry-wide practice to remove the safety guard during cleaning. (Erickson, supra, 12 Cal.App.3d at p. 392.) We rejected these arguments, noting: “The employer may not defer taking preventative steps to avoid injury to his employees from known danger merely because others in the industry so decline or because safety personnel have made no recommendation thereon. The existence of an industry-wide practice or the recommendations of safety personnel are of no significance where the employer, independently, has turned his mind to the danger and recognizes the probability of injury.” (Id. at p. 394.)
In the present case, the WCAB reviewed the evidence and concluded it supported a finding of serious and willful misconduct by Ford. The WCAB summarized: “[Dennis] and Mr. Lawson were exposed, in a proximity of two feet, to the hazard of an overhead load easily capable of crushing them, and [Dennis] paid the ultimate price. The evidence, especially the testimony of Ford’s corporate officer Piombo, showed that Ford knew of the practice and condoned it. As noted in the [workers’ compensation judge’s] Report, Piombo and Ford’s Safety Director, Mr. Haener, described this method of replacing ripper shanks in terms of the needs of the construction industry. This testimony was sufficient to show that the employer knew of the dangerous condition, the employer knew of the probable consequence that its continuance would involve serious injury to an employee, and the employer deliberately failed to take corrective action.”
One member of the WCAB dissented, finding no showing of culpable conduct on Ford’s part. According to the dissent: “In this case, the employer’s Safety Director, Mr. Haener, testified that he knew that his company changed shanks with chains and hooks and that the ‘clevis grab’ hook never came loose before this accident. [Citation.] He also testified that ‘all systems are legal, you just pick the most efficient one and be as safe as you can.’ [Citation.] Haener further testified that the grab hook and chain is the best method because it is adaptable to most variable situations. [Citation.] In addition, Haener testified that while it is not safe to use pry bars under a live load, he does not know why there [sic] were using pry bars in this case.”
The dissent also noted Piombo testified the truck being used “had a crane with a chain shank and grab hook on its end” and this was “an acceptable method of installing a ripper shank”; they had never had any injuries using this method. The chain and grab hook method, according to Piombo, is acceptable and a common practice in the industry. Piombo was not aware of any other method being used.
Finally, the dissent found unpersuasive the testimony of Deborah’s safety expert, “Mr. Merck, who testified that the chain and grab hook method was not safe because there was a possibility for the hook to let go. [Citation.] However, Mr. Merck backtracked. He also testified that the chain and grab hook method used in this case is the ‘least safe’ method, implying that the chain and hook method was one of several safe methods. [Citation.] Therefore, I find that Mr. Merck’s lone opinion on the alleged danger of the chain and hook method is outweighed by the employer’s witnesses, including accident witness Lawson, who testified that the method is safe, and that he still uses it.” The dissent concluded Deborah “failed to prove that Ford knew of a dangerous condition, knew of the probable consequence that its continuance would involve serious injury to an employee, and deliberately failed to take corrective action.”
Our review of the evidence supports the dissent’s conclusion. An employer commits willful misconduct when the employer “turns his mind” to the fact that injury to his employees will probably result from his acts or omissions, but nevertheless deliberately fails to take appropriate measures for their safety. (Rogers Materials, supra, 63 Cal.2d at p. 723.)
However, in the present case, witness after witness testified that the method employed by Lawson and Dennis at the time of the accident was an acceptable method of installing a ripper shank. Haener, Piombo, and Lawson all testified that the chain and grab hook method was commonly used and was considered an acceptable means of installation. Lawson testified that installing a ripper shank by positioning it with pry bars was an acceptable method of installation.
Haener and Piombo also stated the chain and grab hook method had never before caused any injuries to employees involved in installation. Lawson stated he had never before experienced any problems using a chain and grab hook for installation and, in fact, still used that method in changing ripper shanks.
In contrast, Deborah’s expert, Merck, testified that the chain and grab hook method was not a safe method, because the grab hook could come loose. Merck preferred using a cable with a shackle to install ripper shanks. However, Merck also acknowledged that no one knew exactly how the chain came loose and caused the accident. Merck also stated that using pry bars when installing a ripper shank puts the employees too close to the ripper shank.
Merck testified the safest method for installing a ripper shank was to dig a hole into the ground, position the ripper shank in the hole, and then drive the bulldozer over the hole. The ripper shank is then hooked into the bulldozer. According to Merck, the most dangerous method of ripper installation is the chain and grab hook method.
Deborah’s witness Monahan, a heavy duty mechanic, testified he disagreed that the chain and grab hook method was an acceptable means of ripper shank installation. He also echoed Merck’s statement that it was the most dangerous procedure for installing a ripper shank.
However, an expert’s opinion that the method employed was more dangerous than alternative methods does not establish that the employer knew of the potential danger, or “turned his mind” to it and deliberately failed to take safety precautions. Instead, the testimony of Haener, Piombo, and Lawson revealed that Ford believed the method to be acceptable and had never suffered a previous accident utilizing a chain and grab hook to install a ripper shank.
The WCAB, in denying Ford’s petition, observed: “Mr. Haener, described this method of replacing ripper shanks in terms of the needs of the construction industry. This testimony was sufficient to show that the employer knew of the dangerous condition, the employer knew of the probable consequence that its continuance would involve serious injury to an employee, and the employer deliberately failed to take corrective action.” However, the evidence does not support this assertion.
Haener, when questioned about using wire rope instead of chain, responded: “They use these different things because it depends on the application. That’s the whole part of rigging. It’s called rigging for that reason. I think it’s because there is [sic] always obstacles going around and maybe down through. There are all kinds of different variables that come into play. You use the best thing, the best rigging system you can to make that pick. They are all acceptable. They are all legal to do. And so you use the best one that works. The best, most effective, the safest one you can to do your job.” (Italics added.)
During cross-examination, Haener was asked whether it was safe for employees to use pry bars while standing next to a suspended ripper shank. Haener answered: “Is it safe to do that? From a safety guy standpoint they are under a live load but you have to remember they are trying to do a job. And they are qualified people. Construction is not going to an office everyday [sic] and sitting at a desk and presuppose how to do stuff. They are out there doing stuff.” Haener also testified he did not want employees standing next to a suspended load and that it was not safe.
While Haener’s testimony certainly reflected the realities of the construction industry vis-à-vis productivity and safety, it does not support the WCAB’s assertion that Ford knew this method of installing ripper shanks was dangerous and knew that the probable consequence would involve serious injuries to its employees. Haener did not minimize or discount safety to maximize profit and productivity. Instead, Haener testified that Ford expected its employees to utilize effective, efficient, and safe methods, not merely the most expedient method to install ripper shanks.
Given the evidence of Haener, Piombo, and Lawson, we cannot find Ford knew installing ripper shanks with chains and grab hooks posed a risk of serious injury to its employees. While Dennis’s death was indeed tragic, the evidence does not support the WCAB’s invocation of Labor Code section 4553.
“In order to support a holding of serious and willful misconduct by an employer based upon violation of a safety order [under Labor Code section 4553.1], the appeals board must specifically find all of the following: [¶] (1) The specific manner in which the order was violated. [¶] (2) That the violation of the safety order did proximately cause the injury or death, and the specific manner in which the violation constituted the proximate cause. [¶] (3) That the safety order, and the conditions making the safety order applicable, were known to, and violated by, a particular named person, either the employer, or a representative designated by Section 4553, or that the condition making the safety order applicable was obvious, created a probability of serious injury, and that the failure of the employer... to correct the condition constituted a reckless disregard for the probable consequences.” (Lab. Code, § 4553.1.)
The WCAB found Ford ran afoul of Labor Code section 4553.1 by violating Safety Order 5002, which states: “Operations shall be conducted and the job controlled in a manner that will avoid exposure of employees to the hazard of overhead loads. Wherever loads must be passed directly over workers, occupied work spaces or occupied passageways, safety type hooks or equivalent means of preventing the loads from becoming disengaged shall be used. [¶] NOTE: Employees should not work in the area directly beneath a suspended load.”
Two other safety orders discuss handling loads. Safety Order 4999 states, in part: “Handling Loads. [¶]... [¶] (c) Attaching the Load. [¶] (1) The load shall be attached to the hook by means of slings or other suitable and effective means which shall be rigged to insure the safe handling of the load.” Safety Order 5042 states, in part: “(a) Whenever any sling is used, the following practices shall be enforced: [¶]... [¶] (6) Slings shall be set to avoid slippage. [¶]... [¶] (9) All employees shall be kept clear of loads about to be lifted and of suspended loads.”
According to the WCAB, the language of Safety Order 5002 is broad enough “to prohibit more than the actual placement of employees underneath a load, as the order states that exposure to the hazard of overhead loads is what needs to be avoided.” The WCAB determined Deborah presented persuasive evidence in the form of Merck’s testimony that “trying to move the ripper shank with pry-bars was not safe because it put the workers too close to the load, that workers should be taught never to be under a load or on the side of a load, and that workers are not supposed to be in a fall area of whatever they are working on.”
Safety Order 5002 outlines the safety standards for “overhead loads” that pass “directly over workers” and “the area directly beneath a suspended load.” When the accident that killed Dennis happened, he and Lawson were attempting to install the ripper shank into the tool bar of the bulldozer. According to Lawson, the only surviving witness, the two men were using pry bars to shift the ripper shank into place. The ripper shank was suspended from a truck’s crane by a chain and grab hook.
Lawson testified that, as the installation progressed, Dennis “had a [pry] bar up in the [ripper shank’s] hole and everything was lined up and I gone [sic] to put my bar down. So I turned - I put my bar down and turned around and the ripper was falling his way.” Ford’s counsel asked: “Were you or [Dennis] at any time standing underneath the shank?” Lawson replied, “No.” Lawson further testified he was not aware of any other injuries using the chain and grab hook method to install ripper shanks, and he still uses chains to install ripper shanks.
In deposition, Lawson testified that at the time of the accident, the ripper shank was touching the ground, suspended by the chain. The two men stood on either side of it. As Lawson turned away, the ripper shank somehow became disconnected and fell toward Dennis. Lawson described it as “like watching somebody run out from underneath a tree they had just cut down.”
Safety Order 5002 concerns protecting employees from the dangers of overhead loads; Lawson, the only percipient witness, stated neither he nor Dennis stood underneath the ripper shank. The WCAB acknowledged that Lawson testified he did not know exactly how the accident occurred, but concluded such testimony “must be taken with a large grain of salt. The only person who knows exactly what happened is unavailable.” Dennis’s death was indeed horrific; however, the evidence must support the WCAB’s determination that Ford violated Safety Order 5002 to sustain a violation of Labor Code section 4553.1.
Safety Order 5002 states operations shall be conducted and the job controlled in a manner that will avoid exposure of employees to the hazard of overhead loads. Safety Order 5002 also requires that “safety type hooks or equivalent means of preventing the loads from becoming disengaged shall be used.” Lawson testified he used the grab hook because “[t]hat is what is on the end of that chain and that’s what it’s set up to do.” Lawson did not use wire rope because he was “shown to use chain” and he had seen frayed cables.
Safety Order 5002 seeks to protect workers from the dangers of improperly secured overhead loads. The evidence reveals the men were not standing beneath the ripper shank when it fell. In addition, Lawson used a grab hook to prevent the load from slipping, a method he and others testified was acceptable for installing ripper shanks. While Dennis’s death was indeed tragic, we cannot find it resulted from a violation of Safety Order 5002.
DISPOSITION
The decision of the WCAB is annulled, and the matter is remanded for further proceedings consistent with the views expressed in this opinion. The parties shall bear their own costs on review.
We concur: SCOTLAND, P. J., HULL, J.