Submitted November 7, 2013.
Workers' Compensation Board 0900144SH.
Suzanne Kelly Michael and Michael & Alexander PLLC filed the briefs for petitioner.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Inge D. Wells, Senior Assistant Attorney General, filed the brief for respondent.
Before Ortega, Presiding Judge, and Sercombe, Judge, and Hadlock, Judge.
[261 Or.App. 212] HADLOCK, J.
Employer seeks judicial review of a final order of the Workers' Compensation Board that approved a citation by the Oregon Occupational Safety and Health Division (OR-OSHA) for violating 29 CFR section 1926.451(g)(1)(vii)--a rule that OR-OSHA has adopted by reference --which generally requires that employees on scaffolds be protected by fall-protection systems. OR-OSHA issued the citation after an employee fell 40 feet from a scaffold that he and other employees were in the process of dismantling. The only question on review is whether 29 CFR section 1926.451(g)(1)(vii) applies to employees who are dismantling a scaffold. We conclude that the rule does not apply and, accordingly, reverse the board's order.
The pertinent facts are neither extensive nor disputed. Employer contracted to construct a scaffold as part of a roof-replacement project for a business in Newberg. The scaffold platform consisted of sheets of plywood laid across and nailed to aluminum I-beams. After the roof project was completed, employer dismantled the scaffold. Employees removed the nails from the plywood, picked up the plywood sheets, and passed them to other employees to be taken away. One of the plywood sheets shifted off its supporting I-beam after the nails had been removed. An employee was standing on the sheet when it shifted; both he and the sheet fell 40 feet to the floor below. At the time of the accident, the employee was wearing a fall-protection harness but was not " tied off" to anything; that is, the harness was not fastened to anything in a way that would have stopped the employee from falling to the ground.
OR-OSHA issued a citation to employer alleging that it had violated 29 CFR section 1926.451(g)(1)(vii), which provides that, for certain types of scaffolds, " each employee shall be protected by the use of personal fall arrest systems or guardrail systems * * *."  OR-OSHA did not cite employer for violating a different paragraph of the rule that [261 Or.App. 213] explicitly applies to " employees erecting or dismantling supported scaffolds," that requires employers to " determine the feasibility and safety of providing fall protection" for those employees, and that requires employers to provide fall protection for those employees " where the installation and use of such protection is feasible and does not create a greater hazard." 29 CFR § 1926.451(g)(2).
Employer disputed the citation, arguing that subparagraph (g)(1)(vii) of the rule does not apply during the erecting and dismantling of scaffolds. Instead, employer argued, only subparagraph (g)(2) addresses fall protection for employees who are engaged in that work. The parties stipulated that, if subparagraph (g)(1)(vii) of the rule does not apply to employees who are erecting or dismantling scaffolds, the citation should be dismissed but, if the rule does apply in those circumstances, the citation was appropriate. After a hearing, an administrative law judge (ALJ) ruled that 29 CFR section 1926.451(g)(1)(vii) does apply, and he entered an order approving the citation. Employer seeks judicial review of that order.
On review, employer renews its argument that 29 CFR section 1926.451(g)(2), not paragraph (g)(1), applies when employees are erecting or dismantling a scaffold. OR-OSHA responds that paragraph (g)(2) merely sets out the standard by which an employer must determine whether fall protection is feasible and safe during the erecting and dismantling processes, but does not itself require that any feasible fall protection be used. Instead, OR-OSHA contends, it is paragraph (g)(1) that requires that fall protection actually be used.
The parties' arguments raise the issue of the correct interpretation of 29 CFR section 1926.451(g)(1) and (2). 29 CFR section 1926.451 was enacted by the federal Occupational Safety and Health Administration (OSHA) in 1996 and adopted by OR-OSHA on March 12, 1997. Safety Standards for Scaffolds Used in the Construction Industry, 61 Fed Reg 46026 (Aug 30, 1996); OAR 437-003-0001(12)(b). [261 Or.App. 214] In some cases involving federal safety rules that OR-OSHA has adopted by reference, we have looked to federal case law for guidance. OR-OSHA v. Moore Excavation, Inc.,257 Or.App. 567, 575-76, 307 P.3d 510 (2013). In this case, however, the parties have not alerted us to any ...