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Oregon Occupational Safety & Health Division v. CBI Services, Inc.

Court of Appeals of Oregon

November 15, 2018

OREGON OCCUPATIONAL SAFETY & HEALTH DIVISION, Petitioner,
v.
CBI SERVICES, INC., Respondent.

          Argued and submitted February 5, 2018.

          Workers' Compensation Board 0900126SH

          Carson L. Whitehead, Assistant Attorney General, argued the cause for petitioner. On the opening brief were Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Dustin Buehler, Assistant Attorney General. Also on the reply brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Eric S. DeFreest argued the cause for respondent. Also on the brief was Luvaas Cobb and Carl B. Carruth, South Carolina.

          Before Ortega, Presiding Judge, and Garrett, Judge, and Powers, Judge.

         Case Summary:

         The Oregon Occupational Safety & Health Division (OR-OSHA) seeks judicial review of an order of the Workers' Compensation Board determining that OR-OSHA failed to prove that employer CBI Services, Inc. was liable for safety violations under the Oregon Safe Employment Act. OR-OSHA argues that the administrative law judge erred in concluding that OR-OSHA's interpretation and application of the delegative term "reasonable diligence" under ORS 654.086(2) was not entitled to deference. OR-OSHA further argues that the ALJ erred in determining, based solely on that conclusion, that OR-OSHA had failed to prove the safety violations.

         Held:

         The ALJ did not err in concluding that part of OR-OSHA's interpretation of "reasonable diligence" was not entitled to deference because it exceeded the scope of delegative discretion afforded by ORS 654.086(2). However, the ALJ did err in determining, based solely on that conclusion, that OR-OSHA failed to prove the safety violations.

         Reversed and remanded.

         [294 Or.App. 832] GARRETT, J.

         The Oregon Occupational Safety & Health Division (OR-OSHA) seeks judicial review of an order of the Workers' Compensation Board (board) determining that OR-OSHA failed to prove that employer CBI Services, Inc. was liable for safety violations under the Oregon Safe Employment Act (OSEA). At issue is whether the administrative law judge (ALJ), on remand from the Supreme Court, OR-OSHA v. CBI Services, Inc., 356 Or. 577, 341 P.3d 701 (2014), erred in concluding that OR-OSHAs interpretation and application of the delegative term "reasonable diligence" under ORS 654.086(2) was not entitled to deference, and, based solely on that conclusion, determining that OR-OSHA had failed to prove the violations. We conclude that the ALJ did not err in concluding that part of OR-OSHAs interpretation of ORS 654.086(2) was not entitled to deference; however, we also conclude that the ALJ erred in determining that OR-OSHA had failed to prove a violation. Accordingly, we reverse and remand.

         We begin with the relevant legal background. The OSEA requires every employer to "furnish employment and a place of employment which are safe and healthful for employees." ORS 654.010. The director of the Department of Consumer and Business Services is vested with the responsibility for enforcing the terms of the OSEA. ORS 654.025(1). In doing so, the director, or the director's authorized representative, can cite an employer for violations of those rules and impose civil penalties. ORS 654.031; ORS 654.086(1). The amount of a penalty depends on, among other things, whether the violation is "serious." A "serious violation" occurs if:

"there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the ...

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