OR-OSHA v. Moore Excavation

WCB # 08-00169SH (7/28/11) – OR-OSHA cited employer for failure to tag and remove a damaged ladder from the worksite. At hearing, OR-OSHA argued that the “employee exposure” element of its burden of proof was satisfied with evidence that the ladder “could possibly” be used. The Administrative Law Judge rejected OR-OSHA’s argument. HELD: A violation would be established if it were reasonably predictable that, as a result of the employer’s failure to tag and/or withdraw from service the defective ladder, an employee would attempt to use the damaged ladder. No such evidence was offered. Citation and Notification of Penalty vacated. OR-OSHA has appealed the matter to the Oregon Court of Appeals.