Some personal identifiers have been redacted for privacy purposes.

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION 

 

 

OSHRC Docket No. 15-1823 

Appearances:

Richard M. Moyed, Esq., U.S. Department of Labor, Office of the Solicitor, Dallas, Texas

 For Complainant 

Kevin S. Mullen, Esq., Littler Mendelson, PC, Austin, Texas 

 For Respondent 

Before: Administrative Law Judge Peggy S. Ball

DECISION AND ORDER

I. Procedural History

This proceeding is before the Occupational Safety and Health Review Commission (“the 

Commission”) pursuant to section 10(c) of the Occupational Safety and Health Act of 1970, 29 

U.S.C. § 659(c) (“the Act”). In response to a report that one of Respondent’s employees was 

admitted to a hospital due to a work-related injury, the Occupational Safety and Health 

Administration (“OSHA”) conducted an inspection of Respondent’s worksite on August 31, 2015. 

(Tr. 16). Based on the observations and investigation of Compliance Safety and Health Officer 

(CSHO) Mark Moravits, OSHA issued a Citation and Notification of Penalty (“Citation”) to 

Respondent, alleging one serious violation and one other-than-serious violation of the Act, with a 

SECRETARY OF LABOR, 

 

 Complainant,

 

 v. 

CAPITOL CONCRETE CONTRACTORS, 

INC.,

 

 Respondent.
2

total proposed penalty of $10,800.00. Specifically, Complainant alleges Respondent’s on-the-job 

training procedures for skid-steer operators placed trainers in harm’s way, in violation of section 

5(a)(1) of the Act. Complainant also alleges Respondent failed to contact OSHA within 24 hours 

of the hospitalization of one of its employees. Respondent timely contested the Citation. 

 The trial took place on July 13, 2016, in Austin, Texas. The only witness to testify was 

CSHO Moravits. At the close of Respondent’s cross-examination of CSHO Moravits, 

Complainant rested its case. (Tr. 65). Respondent moved for a directed verdict, which was denied 

by the Court, and ultimately rested without presenting additional evidence or testimony. (Tr. 65–

66). Both parties timely submitted post-trial briefs. After reviewing the sparse record produced 

in this case, the Court finds Complainant failed to establish either of the violations alleged in the 

Citation and Notification of Penalty. 

II. Jurisdiction 

The parties submitted a Joint Stipulation Statement. The Stipulation states that Respondent 

is “an employer engaged in business affecting commerce within the meaning of section 3(5) of the 

Act” and that the “Occupational Safety and Health Review Commission has jurisdiction of this 

proceeding under Section 10(c) of the Act.” (Ex. J-1). 

III. Factual Background

 The facts of this case come entirely from the testimony of CSHO Moravits. Respondent 

did not present evidence but instead chose to rest its case on Complainant’s failure to meet his 

burden of proof. Thus, the Court’s findings of fact and conclusions of law hinge entirely on its 

assessment of the sufficiency of Complainant’s evidence. As noted above, the Court finds 

Complainant failed to meet its burden of proof. 
3

According to CSHO Moravits, Respondent notified OSHA of the hospitalization of one of 

its employees on August 28, 2015. (Tr. 15). When he reached out to Respondent, CSHO Moravits 

was told they were no longer working in Bastrop, so the parties arranged to meet on August 31, 

2015, at Respondent’s Liberty Hill Office. (Tr. 16). Respondent agreed to have the skid-steer, the 

operator, the injured trainer, and the superintendent available. On Sunday, Jordan Moore, 

Respondent’s vice-president, informed CSHO Moravits that the skid-steer had been moved to a 

worksite in Georgetown, so the parties agreed to change the location and time of the meeting. (Tr. 

16). 

CSHO Moravits relayed the following facts about the incident, which occurred on August 

26, 2015. During skid-steer operator training, the trainer, [Redacted], noticed the trainee lifted the 

bucket of the skid-steer into an elevated position, which was unusual because there was nothing in 

the bucket at the time. (Tr. 17–18). [Redacted] walked over to the skid-steer, reached into the cab 

while the loader bucket was still in a raised position and tried to point out the controls. (Tr. 18). 

As he was doing so, the bucket arms came down and fractured his wrist. (Tr. 18). According to 

CSHO Moravits’ testimony, Carlos Sanchez, the worksite superintendent, took [Redacted] to a 

Concentra clinic and eventually to St. David’s hospital. 

With respect to the trainer’s hospitalization, CSHO Moravits testified regarding what 

Sanchez told him. Sanchez purportedly told Moravits he had taken [Redacted] first to a Concentra 

clinic, which, in turn, referred Sanchez and [Redacted] to St. David’s hospital. (Tr. 32). According 

to Moravits, Sanchez stated he helped [Redacted] get admitted to St. David’s and waited around 

until [Redacted] was given a prognosis and started receiving treatment. (Tr. 33). Moravits could 

not say, however, when [Redacted] was admitted to the hospital, but, based on his conversations 

with Sanchez, he believed it occurred around noon on August 26, 2015. (Tr. 53). Although CSHO 
4

Moravits testified about paperwork that would reflect the exact time of [Redacted]’s admission to 

the hospital, as well as the time of the report to OSHA, no such documents were introduced into 

evidence. 

In response to the foregoing facts, Complainant issued a two-item Citation and Notification 

of Penalty. 

IV. Discussion 

As noted above, Complainant’s presentation of this case could most generously be 

characterized as perfunctory. In support of a $10,800 fine and two violations, Complainant’s casein-chief comprised 25 pages of direct testimony from CSHO Moravits.1

 Respondent only 

introduced one exhibit during its cross-examination of CSHO Moravits, but otherwise called no 

witnesses. Thus, the Court is presented with a fairly simple question: Is Complainant’s evidence, 

standing alone, sufficient to meet his burden of proof with respect to two separate violations of the 

Act? The Court finds that it is not. 

A. Applicable Law

To prove a violation of the general duty clause, the Secretary must show that: (1) a 

condition or activity in the workplace presented a hazard; (2) the employer or its industry 

recognized the hazard; (3) the hazard was likely to cause death or serious physical harm; and (4) 

a feasible means existed to eliminate or materially reduce the hazard. Pegasus Tower, 21 BNA 

OSHC 1190, 1191 (No. 01-0547, 2005). 

To establish a violation of an OSHA standard pursuant to 5(a)(2), Complainant must 

establish: (1) the standard applies to the facts; (2) the employer failed to comply with the terms 

of the standard; (3) employees were exposed to the hazard covered by the standard, and (4) the 

 

1. This page count reflects only the periods of time during which CSHO Moravits was under direct or redirect 

examination and does not include interludes for objections and rulings. As such, the total page count is likely lower. 
5

employer had actual or constructive knowledge of the violation (i.e., the employer knew or, with 

the exercise of reasonable diligence, could have known of the violative condition). Atlantic 

Battery Co., 16 BNA OSHC 2131, 2138 (No. 90-1747, 1994). 

In both cases, Complainant’s burden is the same: he has the burden of establishing each 

element by a preponderance of the evidence. See Hartford Roofing Co., 17 BNA OSHC 1361 

(No. 92-3855, 1995). “Preponderance of the evidence” has been defined as: 

The greater weight of the evidence, not necessarily established by the greater 

number of witnesses testifying to a fact but by evidence that has the most 

convincing force; superior evidentiary weight that, though not sufficient to free the 

mind wholly from all reasonable doubt, is still sufficient to incline a fair and 

impartial mind to one side of the issue rather than the other. 

Black’s Law Dictionary, “Preponderance of the Evidence” (10th ed. 2014) (emphasis added). 

B. Citation 1, Item 1 

Complainant alleged a serious violation of the Act in Citation 1, Item 1 as follows: 

OSH ACT of 1970 Section (5)(a)(1): The employer did not furnish employment 

and a place of employment which were free from recognized hazards that were 

causing or likely to cause death or serious physical harm to employees where 

employees were exposed to a struck by hazard from heavy equipment.

On or about 26 August 2015, and at times prior thereto, an employee engaged in 

training operations for a new Skid-steer Loader operator would routinely approach 

the operational Loader at the construction jobsite and was exposed to a struck by 

hazard from the equipment. 

Feasible means of abatement for this hazard, among others, includes the following 

measure(s): 1) Follow the Manufacturer’s Operation & Maintenance Manual for 

the Caterpillar Ski Steer Loader that explicitly warns in the safety section to keep 

bystanders away when operating. 2) Ensure clearance from the machine is 

maintained during operation. 3) Lower all mechanisms before approaching. 4) 

Power down the equipment before approaching. 5) Utilize brace for the Loader’s 

lift arms when approaching while the bucket and arm are raised. 6) Conduct more 

yard training of new operators that covers the various controls, and provide a 

practical evaluation prior to allowing the operation of the Loader at any jobsite. 

Citation and Notification of Penalty at 6. 
6

i. Complainant Failed to Prove the Existence of a Hazard 

 In order to determine whether Complainant established the existence of a hazard, it is 

important to clarify what conduct, exactly, Complainant contends is hazardous. See Otis Elevator 

Co., 21 BNA OSHC 2204, 2206 (No. 03-1344, 2007) (“As part of her burden, the Secretary must 

define the cited hazard in a manner that gives the employer fair notice of its obligations under the 

Act . . . .”). Although [Redacted] was injured while reaching inside of the skid-steer cab, 

Complainant did not cite Respondent for that act; rather, Complainant expanded the scope of the 

citation to allege a more general hazard—approaching an operational skid-steer during the training 

process. (Tr. 42). So far as the Court can tell, this activity was characterized as hazardous because

the trainer could presumably be struck by the skid-steer loader or its implements. Indeed, CSHO 

Moravits stated, “It’s the fact that the trainer is next to a running fully functional skid-steer loader 

when the manual clearly states that there is no clearance for a person to be there and NIOSH also 

says bystanders are to be kept away from the machine.” (Tr. 29). 

 Presumably, [Redacted] would have avoided breaking his wrist had he not approached 

the running skid-steer; however, extrapolating outward from avoiding his particular injury to a 

general prohibition against “approaching” a running skid-steer at all requires more than evidence 

that [Redacted] was injured when he reached into the cab. See Arcadian Corp., 20 BNA OSHC 

2001 (No. 93-0628, 2004) (“[T]he Commission has held that it is the hazard, not the specific 

incident that resulted in injury or might have resulted in injury, that is the relevant consideration 

in determining the existence of a recognized hazard.”). The problem, though, is Complainant 

provided very little persuasive evidence with respect to the purported hazard. 

In support of his argument that approaching an operational skid-steer was hazardous, 

Complainant relies upon three sources: (1) a NIOSH Alert entitled, “Preventing Injuries and 

Deaths from Skid-Steer Loaders”; (2) selected portions of the skid-steer operation manual; and (3) 
7

the warning labels affixed to the skid-steer.

2

 As discussed below, however, none of these 

documents either clarifies Complainant’s allegation or substantiates the existence of the hazard as 

alleged. 

With respect to the NIOSH Alert, Complainant places significant emphasis on the 

following warning at the beginning of the Alert: “WARNING! Workers who operate or work near 

skid-steer loaders may be crushed or caught by the machine or its parts.” (Ex. C-2). Put simply

(and unsurprisingly), there are hazards associated with working in or near skid-steer loaders. 

However, the Alert also recognizes that employees must work in or near skid-steers, and therefore 

states, “If you operate or work near skid-steer loaders, take these steps to protect yourself.” (Ex. 

C-2) (emphasis added). For the most part, the Alert addresses the specific hazards of operating, 

entering, and exiting a skid-steer, which are not germane to the present analysis; however, the 

Alert also states that operators should “[k]eep bystanders away from the work area.” (Ex. C-2). 

Notwithstanding the cited passage, there is no general prohibition against approaching 

an operational skid-steer. Right before the list of safe operating procedures, the Alert recognizes 

that employees work near skid-steer loaders. (Ex. C-2). Although the Alert’s procedures state that 

“bystanders” must be kept away from the “work area”, those terms are left undefined, and 

Complainant provided no clarity as to how those terms should be interpreted other than to say that 

approaching a running skid-steer during training, as a general rule, is hazardous. Under this set of 

facts, it is not clear to the Court that [Redacted] (or any trainer) was a bystander, nor is it clear as 

to what constitutes the “work area”. To clarify this problem, the Court highlights one of

Complainant’s proposed abatement methods: “Ensure clearance from the machine is maintained 

during operation.” Citation and Notification of Penalty at 6. As with the term “work area”,

 

2. Complainant also relies upon these sources to establish that the hazard was recognized. 
8

Complainant failed to clarify what constitutes adequate “clearance”,3 and he failed to provide 

evidence indicating the specific manner in which Respondent’s training procedures “routinely” 

failed to account for it. Indeed, CSHO Moravits admitted he did not ask [Redacted] whether he 

was following company policy or his training when he approached the skid-steer. (Tr. 45). 

While the NIOSH Alert is explicit in its description of safe operating procedures and the 

proper methods for exiting and entering the cab of a skid-steer, it does not clarify Complainant’s 

allegation that approaching a running skid-steer during training is hazardous. In fact, the Alert 

even accounts for a similar situation: 

Never work on the machine with the engine running unless directed to do so by 

the operator’s manual. Follow the manufacturer’s safety recommendations to 

complete the task. If the adjustments require that the engine be in operation, use 

an additional person and work as a 2-person team with a trained operator 

positioned in the operator’s station who can effectively communicate with the 

worker making the adjustment.

(Ex. C-2 at 9) (emphasis added). Further, as regards training, which is the subject of this citation 

item, the Alert directs users to the manufacturer’s operator and service manuals, as well as the 

equipment dealer’s or manufacturer’s “manuals, instructional videos, and operator or service 

training courses”. (Ex. C-2 at 10). No additional evidence regarding these sources was introduced 

at trial. 

 The skid-steer operation manual and warning labels provide no additional clarity. The 

warnings identified by Complainant are described in the manual and specifically deal with the 

hazards presented by the loader arms of the skid-steer. Specifically, the ‘Crush Hazard’ states, 

“This warning is located on both of the loader arms of the machines that are equipped with 

extended reach. . . . No clearance for person in this area during operation. Severe injury or death 

 

3. The terms “clearance”, as stated by Complainant in the Citation, and “work area”, as indicated in the NIOSH Alert, 

appear to be interchangeable, but neither provides additional clarity to Complainant’s allegation. 
9

from crushing could occur. Stay away from the work tool while it is in operation.” (Ex. C-3). 

These warnings are specifically tailored to the crushing hazards associated with the loader arms. 

CSHO Moravits confirmed this when he testified that “no clearance for person in this area” means 

“keeping clear of the loader arms.” (Tr. 22). As stated previously, Complainant improperly 

attempts to expand these specific hazards into a more general prohibition against “approaching” 

an operational skid-steer.4 This expansion is unwarranted by any of the foregoing warnings, which 

are specific to a particular hazard.

 Complainant contends the manner in which Respondent trains its employees is hazardous 

notwithstanding the fact that the Court has been presented with precious little evidence of how 

training is, in fact, carried out. Complainant asserts, without proof, Respondent’s trainers routinely

approach operational skid-steers during on-the-job training and that this activity is hazardous.5 In 

this case, however, [Redacted] was not injured because he approached an operational skid-steer; 

he was injured when he stuck his hand into the cabin beneath the raised loader arms, a hazard 

which is repeatedly identified in the literature submitted by Complainant. (Ex. C-2, C-3). 

Complainant’s attempt to expand upon these specific hazards to identify a more general hazard

must fail. There is simply no proof that standing next to an operational and, by all accounts, idle 

skid-steer in order to give training instructions exposed Respondent’s employees to a hazard. 

ii. The Hazard was not Recognized

“A hazard is ‘recognized’ within the meaning of the general duty clause if the hazard is 

known either by the employer or its industry.” Oberdorfer Indus., Inc., 20 BNA OSHC 1321 (No. 

 

4. This point is illustrated by Complainant’s counsel, who, in response to CSHO Moravits’ statement that “no 

clearance” means “keeping clear of the loader arms”, asked, “So, essentially it’s saying, ‘Stay clear of the skid steer 

when it’s fully functional?’” (Tr. 22). 

5. The only evidence that this behavior was “routine” are the conclusory statements by CSHO Moravits that his 

investigation “revealed” the nature of Respondent’s training procedures. None of these revelations are supported by 

statements from Respondent’s employees or documented training procedures. (Tr. 17–18). 
10

97-0469 et al., 2003). In that regard, “[m]anufacturers’ instructions and voluntary industry 

standards that contain explicit safety warnings regarding compliance may be probative evidence 

in establishing a general duty clause violation.” K.E.R. Enters., Inc., 23 BNA OSHC 2241 (No. 

08-1225, 2013). As discussed above, the documents introduced by Complainant do not contain 

explicit safety warnings about approaching the cab of a skid-steer; instead, the Alert, safety 

manual, and warnings all target hazards specifically associated with the loader arms during entry, 

exit, while performing maintenance, or during regular work. Nor, for that matter, was there any 

evidence, such as previous injuries or citations, to suggest Respondent was specifically aware of a 

hazard. Furthermore, CSHO Moravits testified he was unaware of any industry standard that says 

how close to an operational skid-steer an employee may stand. (Tr. 46).

Ultimately, Complainant’s failure is one of specificity and context. Surely, there are 

instances when approaching an operational skid-steer may be hazardous, such as when the bucket 

is raised or when it is “in operation”, but those hazards are already addressed by the industry 

documents introduced by Complainant. (Ex. C-2, C-3). Those are not situations addressed by 

Complainant’s citation item. Instead, Complainant specifically identified approaching an 

operational skid-steer in the context of training as being hazardous.6

 The distinction between “in 

operation” and “operational” may be slight, but it is important to the context of this alleged 

violation. “In operation” implies that the skid-steer is in the process of doing something; whereas 

“operational” implies that it is capable of carrying out that process, i.e., running, but not necessarily 

working. Those two contexts present entirely different hazards, which Complainant attempts to 

conflate without illustrating their similarity. Accordingly, the Court finds that Complainant failed 

to prove the existence of a recognized hazard. 

 

6. CSHO Moravits stated that he did not inquire into whether employees approached skid-steers during regular work 

activities, outside of the training context. (Tr. 42). 
11

iii. Complainant Failed to Establish a Feasible Means to Abate the Hazard

 Even if the Court were to conclude that Complainant established the existence of a 

recognized hazard (it does not), the Court finds Complainant failed to establish a feasible means 

to abate the hazard. See Phillips Petroleum Co., 11 BNA OSHC 1776 (No. 78-1816, 1984) (“A 

violation of the general duty clause cannot be sustained unless the Secretary is able (1) to establish 

the type of employer conduct necessary to avoid citation under similar circumstances and (2) to 

demonstrate the feasibility and likely utility of such conduct.” (quoting Cargill, Inc., Nutrena Feed 

Division, 10 BNA OSHC 1398 (No. 78–5707, 1982))). 

There was virtually no testimony regarding what constituted a feasible means of abatement; 

indeed, the words “abatement” and “feasible” do not appear in the transcript. The only discussion 

of preventative conduct occurred when the CSHO testified that a brace bar would have prevented 

the injury suffered by the trainer in this instance. (Tr. 26). The problem, however, is the hazard 

alleged in the citation item specifically targeted the positioning of the trainer relative to the cab 

during training. While the brace bar prevents the loader arms from descending unexpectedly, that

does not address—at least not completely—the more general hazard alleged in the Citation. 

Otherwise, there was no discussion whatsoever of what would constitute a safe distance from the 

skid-steer or of any other proposed abatement measures identified in the Citation and 

Complainant’s post-trial brief. Aside from the brief mention of the brace bar, there was simply no 

evidence as to how this purported hazard should be abated, nor was there evidence to suggest that 

any of the proposed methods would be feasible or effective in addressing the hazard identified in 

the Citation. 

The D.C. Circuit addressed the Secretary’s burden in the context of abatement in a case 

similar to the one at bar (insofar as Complainant did not meet its evidentiary burden). It stated: 
12

Only by requiring the Secretary, at the hearing, to formulate and defend his own 

theory of what a cited defendant should have done can the Commission and the 

courts assure evenhanded enforcement of the general duty clause. Because 

employers have a general duty to do virtually everything possible to prevent and 

repress hazardous conduct by employees, violations exist almost everywhere, and 

the Secretary has an awesomely broad discretion in selecting defendants and in 

proposing penalties. To assure that citations issue only upon careful deliberation, 

the Secretary must be constrained to specify the particular steps a cited employer 

should have taken to avoid citation, and to demonstrate the feasibility and likely 

utility of those measures. 

National Realty & Constr. Co., Inc., 489 F.2d 1257, 1268 (D.C. Cir. 1973). It is not enough for 

Complainant to merely list the things that Respondent should have done to prevent this vague and 

undefined hazard. To meet his burden, Complainant must provide evidence of how those steps 

will abate the identified hazard and whether implementing them will be feasible. Complainant 

failed on both counts. 

iv. Respondent did not Have Knowledge of the Hazard 

In addition to proving the four primary elements of a general duty clause violation, it is 

also incumbent upon Complainant to prove Respondent “knew or, with the exercise of reasonable 

diligence, could have known of the violative condition.” Regina Constr. Co, 15 BNA OSHC 1044 

(No. 87-1309, 1991); see also S.J. Louis Constr. of Texas, 25 BNA OSHC 1892 (No. 12-1045, 

2016). “In assessing reasonable diligence, the Commission considers several factors, including an 

employer’s obligations to implement adequate work rules and training programs, adequately 

supervise employees, anticipate hazards, and take measures to prevent violations from occurring.” 

Id. (citations omitted). This case occurred in the jurisdiction of the Fifth Circuit, to which this case 

could be appealed. In both the Fifth Circuit and before the Commission, the actual or constructive 

knowledge of a supervisor can be imputed to the employer. See, e.g., Rawson Contractors Inc., 20 

BNA OSHC 1078, 1080–81 (No. 99-0018, 2003); W.G. Yates & Sons Constr. Co. v. OSHRC, 459 

F.3d 604, 608 n.6 (5th Cir. 2006). If, however, Complainant seeks to impute the supervisor’s 
13

knowledge of his own misconduct, the Fifth Circuit requires that such misconduct was foreseeable 

by “showing that the employer’s safety, training, and discipline are inadequate.” W.G. Yates, 456 

F.3d at 608–609. 

Complainant did not address the issue of knowledge either in its presentation of the 

evidence or in his post-trial brief.7

 It is not clear whether Complainant claims knowledge should 

be imputed through [Redacted], Sanchez, or Moore. This “who” is important because it determines 

what standard should be applied to establish actual or constructive knowledge. In either case, 

however, Complainant did not meet its burden of proof. 

If Complainant sought to prove knowledge though [Redacted], the trainer whose 

misconduct led to the citation, it would need to establish that his misconduct was foreseeable. Id. 

In order to prove foreseeability, Complainant must show that Respondent’s training, safety, and 

discipline are inadequate. Id. Complainant did not introduce any evidence regarding Respondent’s 

training, safety, or disciplinary regimes, and therefore cannot prove that [Redacted]’s actions were 

foreseeable. Thus, based on these facts, [Redacted]’s knowledge cannot be imputed to 

Respondent. 

While there is “more” evidence with respect to knowledge on behalf of Sanchez and 

Moore, the Court still finds it is insufficient to meet Complainant’s burden. In response to leading 

questions from Complainant’s counsel, CSHO Moravits testified that it was “normal policy” for 

Respondent’s trainers to walk up to an operational skid-steer during on-the-job training. (Tr. 18). 

The problem, however, is there is no indication in the record as to how he learned this was part of 

the training routine. CSHO Moravits testified that he spoke to Moore, Sanchez, and [Redacted], 

but there is no indication as to who told him about this routine, instead stating that his inspection 

 

7. Though the Court does not rely on it, the Notice of the Filing of Trial Transcript clearly states, “Issues not briefed 

will be deemed abandoned.” See Georgia-Pacific Corp., 15 BNA OSHC 1127, 1136 (No. 89-2713, 1991). 
14

“revealed” that it was a “normal process”. Indeed, in response to cross-examination, CSHO 

Moravits admitted: (1) other than [Redacted], he did not speak to other employees engaged in 

skid-steer training operations; (2) neither Moore nor Sanchez told him about any other employees 

that conduct training, other than [Redacted]; and (3) he did not ask [Redacted] whether he was 

following company policy, rules, or training when he approached the skid-steer and reached inside 

the cab. (Tr. 40–45). What is missing is competent, credible evidence illustrating that either Moore 

or Sanchez was aware of how [Redacted] was carrying out training or that Respondent’s training 

procedures specifically call for [Redacted] to act in the manner that he did. 

Based on the evidence, and Complainant’s failure to even address the issue, the Court finds 

that Complainant failed to prove Respondent had constructive or actual knowledge of the 

purported violation. Accordingly, based on the foregoing discussion, Citation 1, Item 1 is 

VACATED.

C. Citation 2, Item 1 

Complainant alleged a serious violation of the Act in Citation 2, Item 1 as follows: 

29 CFR 1904.39(a)(2): The employer did not report an in-patient hospitalization, 

amputation, or loss of an eye as a result of a work-related incident to OSHA within 

twenty-four hours. 

On or about 26 August 2015, the employer failed to report to OSHA a work-related inpatient hospitalization of one or more employees within 24 hours. 

Citation and Notification of Penalty at 9.

The cited standard provides: 

Within twenty-four (24) hours after the in-patient hospitalization of one or more 

employees or an employee’s amputation or an employee’s loss of an eye, as a result 

of a work-related incident, you must report the in-patient hospitalization, 

amputation, or loss of an eye to OSHA. 

29 C.F.R. § 1904.39(a)(2). 
15

As noted above in Section III, supra, Complainant failed to introduce documentary 

evidence indicating when [Redacted] was admitted to the hospital and when the call was received 

by OSHA. Even if the Court were to accept CSHO Moravits’ testimony that Sanchez told him 

[Redacted] was admitted to St. David’s hospital “around noon” on August 26, 2015, that only 

helps the Court determine when the 24-hour clock began. (Tr. 15, 53–54). 

At trial, CSHO Moravits said he learned about the hospital admission from the company’s 

report to OSHA; however, no documents were introduced to confirm that fact. (Tr. 54). Instead, 

CSHO Moravits testified that Sherry Lascowski called the office and reported the hospitalization. 

(Tr. 55). The Court overruled an objection from Respondent’s counsel regarding this testimony

to allow some latitude to establish foundation. However, evaluating the complete submission, the 

Court agrees that this testimony is double hearsay. See F.R.E. 805. While Ms. Lascowski’s 

statements could be excepted from the hearsay rule as an admission of a party opponent under 

F.R.E. 801(d)(2), there are two major problems with accepting this testimony. First, there was no 

foundation laid to establish that Ms. Lascowski was, in fact, an employee of Respondent. CSHO 

Moravits did not speak with Ms. Lascowski and, thus, he did not have direct knowledge of who 

she was or whether she was authorized to speak on behalf of Respondent. (Tr. 55). Second, even 

if the Court were to accept that Ms. Lascowski was an employee of Respondent, Complainant 

cannot overcome the hearsay problem of how CSHO Moravits learned about the call from Ms. 

Lascowski. Presumably, this call was logged and documented by one of Complainant’s employees, 

and the information was eventually provided to CSHO Moravits. What is unknown is how CSHO 

Moravits received that information. Had Complainant introduced the records upon which CSHO 

Moravits’ knowledge was based, such records would have cured the second part of the double 
16

hearsay problem because they likely would have qualified under the business records exception.8

See F.R.E. 803(6). 

Without competent evidence to ascertain the time at which Respondent made the call to 

Complainant, the Court cannot find that Respondent violated the standard. Accordingly, Citation 

2, Item 1 is VACATED.

ORDER

The foregoing Decision constitutes the Findings of Fact and Conclusions of Law in 

accordance with Rule 52(a) of the Federal Rules of Civil Procedure. Based upon the foregoing 

Findings of Fact and Conclusions of Law, it is ORDERED that:

1. Citation 1, Item 1 is VACATED. 

2. Citation 2, Item 1 is VACATED.

SO ORDERED

 /s/

 

 

 Peggy S. Ball

 Judge, OSHRC 

Date: February 27, 2017 

Denver, Colorado 

 

8. The fact that the Court relied upon this testimony to establish what precipitated the inspection, however, does not 

implicate hearsay. The statement was not used for the truth of the matter asserted; rather, the phone call was used to 

ascertain its effect on the mind of the listener. United States v. DeVincent, 632 F.2d 147, 151 (1st Cir. 1980) (holding 

certain out-of-court statements were not hearsay because they were admissible “for their effect on the hearer”), cert. 

denied, 449 U.S. 986 (1980).