Opinion
G062735
02-07-2024
INTERLINE BRANDS, INC. n/k/a HOME DEPOT U.S.A., INC., Plaintiff and Appellant, v. OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD, Defendant and Respondent; DEPARTMENT OF INDUSTRIAL RELATIONS, DIVISION OF OCCUPATIONAL SAFETY AND HEALTH, Real Party in Interest and Respondent.
Haynes and Boone, Daniel L. Geyser and Marco A. Pulido for Plaintiff and Appellant. J. Jeffrey Mojcher, Aaron R. Jackson, F. Elizabeth Clarke and Vincent Mersich for Defendant and Respondent. Kathryn J. Woods and Clara Levern Hill-Williams for Real Party in Interest and Respondent.
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of San Bernardino County, No. CIVDS2021813, David S. Cohn, Judge. Affirmed. Request for Judicial Notice. Granted in part and denied in part.
Haynes and Boone, Daniel L. Geyser and Marco A. Pulido for Plaintiff and Appellant.
J. Jeffrey Mojcher, Aaron R. Jackson, F. Elizabeth Clarke and Vincent Mersich for Defendant and Respondent.
Kathryn J. Woods and Clara Levern Hill-Williams for Real Party in Interest and Respondent.
OPINION
MOTOIKE, J.
The Department of Industrial Relations, Division of Occupational Safety and Health (the Division) cited Interline Brands, Inc. (now known as Home Depot U.S.A., Inc.) (Interline) for failing to provide appropriate foot protection for employees working in its industrial warehouse who are "exposed to foot injuries from . . . crushing or penetrating actions, which may cause injuries" in violation of section 3385, subdivision (a) of title 8 of the California Code of Regulations (section 3385(a)). After Interline appealed the issuance of the citation, an administrative law judge (ALJ) dismissed the citation on the grounds relevant employees were not exposed to foot hazards and Interline had effective administrative and engineering controls in place to protect its workers.
After the Division filed a petition for reconsideration of the ALJ's decision, the Occupational Safety and Health Appeals Board (the Board) reversed the ALJ's dismissal of the citation and affirmed the Division's issuance of the citation, but also downgraded the classification of the underlying violation (and its concomitant fine) from serious to general. Interline challenged the Board's decision by filing a verified petition for writ of administrative mandamus in the trial court, which the trial court denied.
We affirm. For the reasons we will explain, the Board did not apply the wrong legal standard in reversing the ALJ's decision. Sufficient evidence supported its finding there was a reasonable likelihood Interline employees were exposed to foot hazards within the meaning of section 3385(a), but were not provided appropriate foot protection. Interline's arguments the Board erred by ignoring key evidence and disregarding the ALJ's credibility findings are also without merit.
FACTUAL AND PROCEDURAL HISTORY
I. THE ACCIDENT AND INVESTIGATION
Interline is in the business of supplying maintenance products and specialty equipment to commercial and multi-family residential customers. On July 28, 2017, employee David Acosta suffered an on-the-job injury at Interline's San Bernardino Distribution Center (the Center). Acosta had worked as a "picker" at the Center for two years before the incident. About 100 employees work at the Center; half of the employees work as pickers. Pickers are responsible for retrieving inventory from storage racks located along various aisles running the length of the Center's warehouse and transporting such inventory on a powered industrial truck (known as a cherry picker) to a processing and fulfillment area. The Center handles about 3,000 orders per day.
The Home Depot U.S.A., Inc. is the corporate parent of Interline.
Acosta was injured while he was transporting a bi-fold door on a cherry picker from a storage rack. He had rested the door on a pallet attached to the cherry picker's forks, but the door was not properly secured to the pallet. Acosta was injured when the door made contact with the side of a storage rack and the door was pushed into Acosta's ankle, crushing it. Acosta was hospitalized for more than 24 hours following the incident. On August 1, 2017, the Division, through Associate Safety Engineer Lex Eaton, opened an accident inspection at the Center.
II. THE CITATIONS
Following the investigation, on December 13, 2017, the Division issued three citations to Interline, alleging the following four violations of regulations contained in title 8 of the California Code of Regulations: (1) citation 1, item 1, alleged a general violation of section 3380, subdivision (f)(1) (failure to assess worksite to determine if hazards are present or likely to be present that necessitate the use of personal protective equipment); (2) citation 1, item 2, alleged a general violation of section 3668, subdivision (f) (failure to certify each powered industrial truck operator at the worksite received required training and evaluation); (3) citation 2 (at issue in the instant appeal) alleged a serious violation of section 3385(a) (failure to require appropriate foot protection); and (4) citation 3 alleged a serious violation of section 3650, subdivision (t)(30) (failure to take special precautions to secure loads during transport on powered industrial trucks fitted with an attachment).
III. THE ALJ AFFIRMS CITATIONS 1 AND 3 AND VACATES CITATION 2
Interline appealed the issuance of the citations to the Board. Following a four-day evidentiary hearing conducted by the assigned ALJ, in January 2019, the ALJ issued a decision affirming citation 1 (items 1 and 2) and citation 3 and assessed the associated proposed penalties against Interline. The ALJ also vacated citation 2, concluding the Division had failed to meet its burden of establishing by a preponderance of the evidence the existence of employee exposure so as to trigger the foot protection requirement. The ALJ dismissed the $15,300 penalty the Division imposed for that citation.
IV. THE DIVISION SUCCESSFULLY PETITIONS THE BOARD TO RECONSIDER AND REVERSE THE ALJ'S DECISION TO VACATE CITATION 2
In February 2019, the Division timely petitioned the Board for reconsideration of the ALJ's decision as to citation 2; Interline filed a timely response to the Division's petition for reconsideration. The Board took the ALJ's decision under reconsideration, engaged in an independent review of the record, and considered the parties' pleadings and arguments. The Board did not take any new evidence and neither party suggests the Board should have considered any new evidence in reconsidering the ALJ's decision.
The Board issued a "Decision After Reconsideration" in which it reversed the ALJ's decision on citation 2. The Board concluded the Division established a violation of section 3385(a) and the ALJ erred by finding otherwise. The Board affirmed the Division's issuance of citation 2, but with a general classification and penalty of $1,500 "based on medium severity, extent, and likelihood factors."
V. THE TRIAL COURT DENIES INTERLINE'S PETITION FOR WRIT OF ADMINISTRATIVE MANDAMUS AND ENTERS JUDGMENT IN FAVOR OF THE DIVISION
In October 2020, Interline filed a verified petition for writ of mandate under Code of Civil Procedure section 1094.5. Interline requested relief on three grounds: (1) the Division failed to sign its petition for reconsideration; (2) the Division failed to address alternative grounds for affirming the ALJ's decision; and (3) the Board's decision reversing the ALJ's decision was unreasonable and not supported by substantial evidence. The trial court denied the petition, for the reasons explained in its 17-page ruling, and entered judgment in favor of the Division and against Interline.
REQUEST FOR JUDICIAL NOTICE
The Board requests this court take judicial notice of 14 of the Board's decisions made after reconsideration. Interline has not opposed our taking judicial notice of such decisions. As the Board's decisions are proper subjects of judicial notice, we grant its request to take judicial notice of them. (See Evid. Code, §§ 451, subd. (a), 452, subd. (c), 459; United Assn. Local Union 246, AFL-CIO v. Occupational Safety &Health Appeals Bd. (2011) 199 Cal.App.4th 273, 279, fn. 5.)
The Board also requests we take judicial notice of an administrative law judge's decision in another case (Interline Brands, Inc., Cal/OSHA App. 1436480, Decision (Sept. 23, 2022)), reviewing a citation issued following an incident at Interline that occurred after the issuance of citation 2 in the instant case. The Board asserts it seeks judicial notice of that decision "solely . . . to demonstrate that [Interline] was not entirely forthcoming in its assertions . . . within its brief." Interline has filed opposition to the Board's request as to the administrative law judge's decision, arguing the Board's request constitutes a "prejudicial attempt to taint the proceedings before this Court with extra-record evidence that is not judicially noticeable under settled California law." Because the proffered decision by the administrative law judge is irrelevant to our analysis, the Board's request for judicial notice as to that decision is denied.
DISCUSSION
I. STANDARD OF REVIEW
"The review by a court considering a petition for a writ of mandate challenging an Appeals Board decision 'shall not be extended further than to determine, based upon the entire record which shall be certified by the appeals board, whether: [¶] (a) The appeals board acted without or in excess of its powers. [¶] (b) The order or decision was procured by fraud. [¶] (c) The order or decision was unreasonable. [¶] (d) The order or decision was not supported by substantial evidence. [¶] (e) If findings of fact are made, such findings of fact support the order or decision under review. [¶] Nothing in this section shall permit the court to hold a trial de novo, to take evidence, or to exercise its independent judgment on the evidence.' (Lab. Code, § 6629; [citation].) 'The findings and conclusions of the appeals board on questions of fact are conclusive and final and are not subject to review. Such questions of fact shall include ultimate facts and the findings and conclusions of the appeals board.' (Lab. Code, § 6630.)
"'"'Our function on appeal is the same as that of the trial court in ruling on the petition for the writ. We must determine whether based on the entire record the [Appeals] Board's decision is supported by substantial evidence and whether it is reasonable. [Citations.] Where the decision involves the interpretation and application of existing regulations, we must determine whether the administrative agency applied the proper legal standard. [Citation.] Since the interpretation of a regulation is a question of law, while the administrative agency's interpretation is entitled to great weight, the ultimate resolution of the legal question rests with the courts .... An agency's expertise with regard to a statute or regulation it is charged with enforcing entitles its interpretation of the statute or regulation to be given great weight unless it is clearly erroneous or unauthorized. [Citations.] The [Appeals] Board is one of those agencies whose expertise we must respect. [Citation.]' [Citation.] However, '[a]n administrative agency cannot alter or enlarge the legislation, and an erroneous administrative construction does not govern the court's interpretation of the statute.'"'" (L&S Framing, Inc. v. Occupational Safety &Health Appeals Bd. (2023) 93 Cal.App.5th 995, 1008-1009.)
II. THE BOARD DID NOT APPLY THE WRONG LEGAL STANDARD
A. Forfeiture
In its opening brief, Interline argues the Board, in its ruling reversing the ALJ's decision to vacate citation 2, erroneously enlarged the applicable legal standard to require Interline "to eliminate all conceivable safety risks." Interline did not raise this issue in its petition for a writ of administrative mandamus filed in the trial court and the trial court did not address this issue in its ruling.
"Appellate courts generally will not consider matters presented for the first time on appeal." (Franz v. Board of Medical Quality Assurance (1982) 31 Cal.3d 124, 143.) Labor Code section 6629 gave the trial court original jurisdiction to decide whether the Board had exceeded its authority and whether its decision after reconsideration was unreasonable as a result of a misapplication of the governing legal standard. Because Interline did not raise this issue in the trial court, it may not raise it for the first time now. (See ibid. ["to allow the issue to be raised here, when not presented before the trial court, would undermine orderly procedure on administrative mandamus"]; M.N. v. Morgan Hill Unified School Dist. (2018) 20 Cal.App.5th 607, 632 [by not making the argument in the trial court, a student appealing from a judgment denying his petition for writ of administrative mandate forfeited the argument the district failed to make required factual findings].) Even if Interline's argument is not forfeited, however, it is without merit for the reasons we will explain.
B. The Board Did Not Misinterpret or Misapply Section 3385(a)
In citation 2, the Division asserted Interline committed a serious violation of section 3385(a), which provides: "Appropriate foot protection shall be required for employees who are exposed to foot injuries from electrical hazards, hot, corrosive, poisonous substances, falling objects, crushing or penetrating actions, which may cause injuries or who are required to work in abnormally wet locations." The Division alleged the following facts in support of citation 2: "Prior to and during the course of the investigation, including, but not limited to August 01, 2017, [Interline] failed to provide the required appropriate foot protection including, but not limited to, steel toe shoes for employees who are exposed to foot injuries, including but not limited to, from falling objects and/or crushing action from working in the zone of danger of industrial trucks."
Interline argues statements in the Board's decision after reconsideration, namely that Interline's engineering and administrative controls "do not eliminate all exposure to foot hazards" and "have not completely eliminated the danger for every employee," reflect the Board's misunderstanding of the proper scope of section 3385(a). Interline argues the Board's interpretation is inconsistent with Labor Code sections 6401 and 6403, by which the Legislature did not impose a requirement that employers eliminate all conceivable safety risks but requires "only those 'safety devices and safeguards' that are 'reasonably adequate to render such employment and place of employment safe and healthful.'"
The Board's statements, when considered in the context of its entire decision after reconsideration, do not reflect any misapprehension or misapplication of the governing legal standards but reflect the Board's conclusion the ALJ's assessment of exposure was incomplete. In his decision, the ALJ concluded the Division failed to meet its burden of establishing employee exposure within the meaning of section 3385(a) because it offered "little credible evidence to establish employee exposure to foot hazards resulting from interaction between pedestrians and powered industrial trucks" and Interline had "offered substantial evidence that it effectively eliminates employee exposure to foot hazards through training and other administrative and engineering controls."
The Board faulted the ALJ for failing to consider evidence showing pickers faced exposure to foot injuries whenever they loaded items onto and off of their powered industrial trucks-a hazard, the Board concluded, not sufficiently mitigated by Interline's engineering and administrative controls.
In its decision after reconsideration, the Board reviewed the governing legal principles, explaining that in order to establish a violation of section 3385(a), the Division had the burden of showing (1) foot protection was not required by the employer and (2) employees were exposed to the hazard of foot injuries. The Board noted the first element was not in dispute-the parties agreed Interline did not provide employees with foot protection; its employees "wore sneakers and other casual shoes to work at the facility." The Board therefore confirmed, "[t]he only issue for the Board is whether exposure to foot injuries existed in [Interline]'s facility."
As to the single issue presented, citing In re Benicia Foundry &Iron Works, Inc. (Cal. O.S.H.A., Apr. 24, 2003, No. 00-R2D2-2976 through 2984, 2986, 2987) 2003 CA OSHA App.Bd. Lexis 43 (Benicia) the Board explained: "Exposure may be shown either by showing that an employee was actually exposed to the zone of danger or hazard created by a violative condition, or by demonstrating employee access to the zone of danger based on evidence of reasonable predictability that employees while in the course of assigned work duties, pursuing personal activities during work, and normal means of ingress and egress would have access to the zone of danger." (Italics added.)
Benicia, supra, 2003 CA OSHA App.Bd. Lexis 43 is one of the Board's decisions that is the subject of the Board's request for judicial notice. As discussed ante, Interline has not opposed that aspect of the request for judicial notice, and for the reasons explained ante, we have granted it.
The Board explained its disagreement "with the ALJ's assessment on the matter of exposure," explaining: "While [Interline] has instituted a number of engineering controls, as well as administrative controls, such as clearly-marked walking paths, aisles for industrial truck traffic, barriers, and rules for both drivers and pedestrians, those measures do not eliminate all exposure to foot hazards. The ALJ's analysis fails entirely to consider ample evidence in the record regarding industrial truck operators' lifting of goods and containers, both placing them onto trucks, as well as unloading items onto conveyors for shipment. When lifting and moving goods, employees are exposed to the hazard of dropping the load on a foot, which may cause injury. Industrial truck drivers must leave their vehicles to unload and load product, also exposing them to the hazard of a foot injury from dropped items. [¶] Moreover, while many employees in the workplace may be completely outside the zone of danger created by industrial trucks coming into close proximity with workers and their feet, those controls have not completely eliminated the danger for every employee. Despite [Interline]'s efforts, not all employees have been excluded from the zone of danger created by industrial trucks or by the hazards of lifting and moving items that can be dropped onto a worker['s] feet. These exposed employees are not provided with foot protection, as required by the safety standard."
The Board reiterated, in its concluding paragraph in the decision after reconsideration, although Interline "has a program that provides most employees with effective [not perfect or complete] protection from exposure to foot injuries, a number of employees remain exposed to the hazard of foot injuries from loading and unloading items." The Board upheld citation 2 based on the hazard presented by such loading and unloading activities.
Interline does not dispute it is part of an industrial truck operator's job to get out of their vehicle to load and unload items. Thus, the Board's conclusion a hazard of foot injuries exists in that context is not based on an academic or theoretical idea. Interline does not contend the type of exposure to foot injuries presented when loading and unloading items falls outside of the scope of exposure within the meaning of section 3385(a). We therefore reject Interline's challenge to the Board's interpretation and application of section 3385(a) as imposing a standard to "eliminate all conceivable safety risks" and find no error.
III. SUBSTANTIAL EVIDENCE SHOWS A LIKELIHOOD OF EMPLOYEE EXPOSURE TO FOOT HAZARDS
Interline argues insufficient evidence supports the Board's finding of a likelihood of employee exposure to foot hazards. "In evaluating whether the Board's decision was supported by substantial evidence, '[w]e view the evidence in a light most favorable to the Board's decision, drawing all reasonable inferences and resolving all conflicts in the evidence in favor of the decision.' [Citation.] Under this standard, we will uphold the Board's decision if the record contains sufficient evidence that is reasonable, credible, and of solid value to allow a reasonable person to reach the challenged decision." (Granite Construction Co. v. Occupational Safety &Health Appeals Bd. (2023) 96 Cal.App.5th 472, 479.)
In its decision after reconsideration, the Board summarized the evidence supporting its conclusions as follows:
"About 100 employees work at [Interline]'s facility, according to [Luis] Gamino, [Interline]'s assistant operations manager.... About half of those employees work as industrial truck operators.... The facility handles approximately 3000 orders per day. Employees pick items for individual orders, and put each order in its own plastic stackable tote.... These are generally small items that go into an individual order. A worker may have about 10 totes on their industrial truck, which they then drop off at shipping, where the order is then packed for UPS and other carriers....
"Gamino agreed that after picking items, the industrial truck operators get out of their vehicles to place cartons on the conveyor, but his testimony does not establish the frequency of the loading and unloading.... Eaton testified that most of the items were probably picked up by hand.... Employee Daniel Zuno also testified that his job as a picker requires manually picking up orders and placing them in the totes on the industrial truck.... Zuno also explained that once all of the items have been picked, the industrial truck driver has to drop the items off at shipping, by removing each tote from the industrial truck.... According to Gamino, the average load in a tote is about 15 to 20 pounds, although pickers may need to move heavier, bulky, or odd shaped products, and [they] utilize[] team lift procedures for those less usual situations.... For instance, Eaton testified that the bifold doors that may be loaded can weigh 60 pounds."
The Board concluded: "These facts demonstrate actual employee exposure to the hazard of foot injuries caused by falling objects, should a stack of totes fall over, or an employee accidentally drop the tote or the goods being placed in the tote." The Board also reiterated the basis for its conclusion, stating: "Unrebutted evidence establishes that employees may daily be required to lift and handle a variety of items, some of which may weigh 60 pounds or more. These industrial truck operators must necessarily enter the zone of danger created by the industrial truck whenever they must dismount the vehicle to pick up or unload items from the industrial truck. Exposure to a hazard of a foot injury is therefore shown."
Interline does not challenge the accuracy of the Board's summary of the evidence supporting its conclusion. Instead, it argues the Division failed to establish the applicable "'zone of danger'" from falling objects as "[t]his alleged risk was entirely hypothetical." Interline argues "[i]f it were enough to point to 'loads' and hypothesize that something might drop th[e]n all facilities (if not virtually every place of employment) would require steel-toed shoes or similar foot protection under California law. There is always a risk that movable objects might fall under some conceivable circumstances."
The record here shows more than a mere hypothetical risk of an occasional falling object at the Center. As explained in Benicia, supra, 2003 CA OSHA App.Bd. Lexis 43 at pages *57-*58, exposure to foot injury may be established "by showing employee access to the zone of danger based on evidence of reasonable predictability that employees while in the course of assigned work duties . . . would have access to the zone of danger." (Italics added.) The reasonable predictability standard "is an objective standard and is not analyzed from a subjective point of view requiring that the [agency] show that the employer knew that access to a violative condition was reasonably predictable." (Id. at p. *54.) The determination of whether it is reasonably predictable that an employee would be in the zone of danger requires consideration of "the nature of the work, the work activities required, and the routes of arrival and departure." (Id. at p. *55.)
Here, as summarized in the Board's decision after reconsideration, the record contained evidence of the high number of orders (3,000) handled by 50 pickers each day at the Center, whose duties require them to dismount their powered industrial trucks to lift items of various weights and secure them to their vehicles for transport to the fulfillment department. In other words, the job itself is to collect, lift, handle, and secure such items into the 10 totes a truck can accommodate, each tote weighing on average between 15 and 20 pounds, and transport them for shipping. This evidence is sufficient to show a reasonable predictability the pickers, while performing their assigned work duties, would have access to the zone of danger.
The trial court rejected Interline's substantial evidence challenge, stating: "The citation was based on the fact that employees routinely lifted heavy items, were in the proximity of falling items, and worked in proximity to industrial trucks. Some of Eaton's testimony concerning the likelihood of exposure was vague, but along with the testimony of other witnesses [the testimony of which is cited in the Board's decision after reconsideration quoted ante and summarized by the trial court in its ruling], Eaton's observations provide substantial evidence that employees were in fact exposed to injuries due to lifting and carrying heavy items and working on foot near vehicles."
It is of no moment it might be reasonably likely a picker would sustain only a minor foot injury as a result of an item or tote falling on his or her foot. As pointed out in the respondent's brief, the Board reclassified citation 2 from a serious violation to a general violation of section 3385(a). "That an accident would cause even a minor injury, by crushing action, would support the existence of a general violation" and it would demonstrate exposure. (Times Advocate, Times-Advocate Company, Cal/OSHA App. 901242, Decision After Reconsideration (Dec. 16, 1991).)
In its opening brief, Interline argues the Board's decision after reconsideration is defective as it failed to "identify any propensity, history, or risk of falling loads at the distribution center .... It did not examine the plastic totes at all, much less identify any defect in their design, operation, or ordinary use. It did not explain how Interline's weight limits (or team-lift requirements) did not address and mitigate any risk of falling objects. Indeed, the Board did not even bother to explain what would happen if a tote did fall-would all the items come loose or would they stay in place? Was the danger from the tote itself or its contents? The Board never says."
Interline's arguments, however, address the weight of the evidence and thus are more appropriately directed to a trier of fact. We, like the trial court, review the Board's decision for substantial evidence. As noted by the trial court in its ruling on the petition for administrative mandamus: "Although [Interline] is correct that the evidence of exposure is less than compelling, this court's function is to review the Board's decision under the substantial evidence test. It is not apparent that the Board's decision should be set aside because it so lacks in evidentiary support as to render it unreasonable." For the reasons we have discussed, we too conclude substantial evidence supports the Board's decision after reconsideration.
IV. THE BOARD DID NOT ERR BY RELYING ON EATON'S TESTIMONY
Interline argues "the Board independently erred by ignoring [the ALJ]'s credibility determinations." Interline argues the ALJ found the Division's key witness, Eaton, as lacking credibility and yet the Board relied on his testimony, failing to afford the ALJ's credibility determination "'great weight' absent compelling contrary evidence."
Interline raised this argument in its petition for writ of administrative mandamus, which the trial court rejected for the following reasons: "The ALJ's decision calls into question Eaton's credibility on a couple of points. First, the ALJ stated that Eaton's deposition testimony regarding his observation of employees on foot within the zone of danger of trucks was less equivocal than his testimony during the hearing, which 'somewhat undermined Eaton's credibility [on this point].'. . . [¶] The ALJ also challenged Eaton's testimony that he observed approximately ten employees in close proximity to trucks in the main aisle of the warehouse because Eaton took several photographs and measurements but failed to similarly document the employee exposure. As such, the ALJ 'viewed Eaton's testimony with distrust.'. . . [¶] Unlike the ALJ, who focused on the potential hazard caused by the employees' proximity to trucks, the Board focused on the potential hazard of falling objects. The Board did, however, cite Eaton's testimony regarding ten employees in close proximity to operating trucks . . ., which the ALJ had previously criticized. [¶] The Board did not squarely address Eaton's credibility. Instead, it focused on other facts, such as the testimony of Zuno, Gamino, and Eaton regarding the loading and unloading of totes." Interline does not address the trial court's ruling on this point in its opening brief.
We agree with the trial court the ALJ found certain aspects of Eaton's testimony to lack credibility. We also note the ALJ did not suggest he found Eaton to generally lack credibility in all respects.
Those portions of Eaton's testimony the ALJ found lacking credibility were entirely related to the issue whether pedestrian employees at the Center were exposed to foot injuries as a result of the movement of powered industrial trucks. As pointed out by the trial court, the Board, in its decision after reconsideration, referenced Eaton's testimony on that issue. But the Board ultimately reversed the ALJ's decision and affirmed issuance of citation 2 based on substantial evidence pickers, not Center pedestrians, were exposed to foot injuries from loading and unloading activities, not the movement of trucks at the worksite. Therefore, even if we were to assume the Board erred by referring to testimony deemed not credible by the ALJ, any such error would be harmless.
V. THE BOARD DID NOT ERR IN HOW IT CONSIDERED THE TESTIMONY OF INTERLINE'S EXPERT WITNESS
In its opening brief, Interline argues the evidence showed expert witness Dominick Zackeo's team "methodically studied the distribution center's administrative and engineering controls over the course of several days (53 hours total), reviewing thousands of instances in which pedestrians were working safely in a facility with powered industrial trucks. His team ultimately found that Interline's 'controls are effective' and 'no foot protection is required.'" Interline argues the Board erred by "refusing to credit the testimony of . . . Zackeo," even though the ALJ had deemed him qualified to render an opinion in the matter.
The trial court addressed and rejected the same argument in ruling on the petition for writ of administrative mandamus: "[Interline] argues that the Board erred in rejecting the uncontradicted conclusion of [its] expert. But that is not . . . entirely accurate. [Interline]'s expert determined the controls were effective and that the 'exposure is controlled.'. . . Although the Board did not specifically mention the expert testimony, it largely agreed with him, noting: 'The Board acknowledges the strong safety program that [Interline] has created; its concern lies only with the gaps in that program that have been shown to exist.'. . . The Board then discussed employees having to lift heavy objects."
The trial court further observed Interline's expert acknowledged Interline's controls do not eliminate the exposure to foot injuries pickers face when loading and unloading items from their trucks, stating: "During the hearing, [Interline]'s expert testified it was 'not conceivable' that an improperly loaded box would fall off a truck and onto the operator's foot.... He stated: 'There are controls in place to ensure that doesn't happen. Part of the controls are trained operators to make sure that the load is secured and inspected before they go to lift it up .... So when the load is secured, it's not conceivable.'. . . He was then asked about the injured employee who, according to Citation 3, 'suffered a serious injury when the unsecured load he was carrying was driven into his leg ....' . . . The expert agreed the accident 'occurred because the load was not secure.'. . . This testimony undercuts [Interline's] argument that controls eliminate the risk of harm."
The trial court also noted: "Eaton's site inspection occurred on August 1, 2017. [Interline]'s expert conducted its site assessment on August 17, 2017.... Eaton may have seen employees in close proximity to operating equipment, while [Interline]'s expert did not, because they were not present on the same date. In other words, Eaton's factual testimony is not contradicted by [Interline]'s expert. They simply have different opinions based on their independent observations. Moreover, as discussed, the Board focused on the safety hazard created by lifting objects. Yet the expert's report is solely focused on the issue of proximity of pedestrian employees to truck operators."
Interline does not reference, much less challenge, any of the trial court's reasons for rejecting its argument the Board erred by ignoring what it characterized to be unrebutted testimony of its expert; the trial court's ruling accurately cites the record and is legally sound.
In any event, as we have discussed, the ALJ's decision did not address whether Interline violated section 3385(a) by failing to provide foot protection for pickers exposed to foot injuries when they load and unload their powered industrial trucks. As explained in the trial court's ruling, the expert's testimony Interline's controls were sufficient was rebutted on this issue. The expert witness himself agreed the then-existing controls ensuring loads are properly secured were insufficient to prevent Acosta's accident.
DISPOSITION
The judgment is affirmed. Respondents to recover costs on appeal.
WE CONCUR: GOETHALS, ACTING P.J., DELANEY, J.