{ "id": 11709057, "name": "YATES CONSTRUCTION COMPANY, INC., Petitioner v. COMMISSIONER OF LABOR FOR THE STATE OF NORTH CAROLINA, Respondent", "name_abbreviation": "Yates Construction Co. v. Commissioner of Labor for North Carolina", "decision_date": "1997-05-06", "docket_number": "No. COA96-454", "first_page": "147", "last_page": "155", "citations": [ { "type": "official", "cite": "126 N.C. App. 147" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "45 ALR Fed. 785", "category": "reporters:federal", "reporter": "A.L.R. Fed.", "weight": 2, "opinion_index": -1 }, { "cite": "48 ALR Fed. 466", "category": "reporters:federal", "reporter": "A.L.R. Fed.", "opinion_index": -1 }, { "cite": "309 S.E.2d 219", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "309 N.C. 710", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4761485 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/309/0710-01" ] }, { "cite": "299 S.E.2d 473", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "478" } ], "opinion_index": 0 }, { "cite": "60 N.C. App. 441", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521714 ], "pin_cites": [ { "page": "447" } ], "opinion_index": 0, "case_paths": [ "/nc-app/60/0441-01" ] }, { "cite": "293 S.E.2d 171", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1982, "pin_cites": [ { "page": "176", "parenthetical": "citations omitted" }, { "page": "176" } ], "opinion_index": 0 }, { "cite": "306 N.C. 231", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568091 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "238", "parenthetical": "citations omitted" }, { "page": "238" } ], "opinion_index": 0, "case_paths": [ "/nc/306/0231-01" ] }, { "cite": "281 S.E.2d 24", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1981, "pin_cites": [ { "page": "32" }, { "page": "32" }, { "page": "32", "parenthetical": "Commissioner must present evidence that failure to slope this trench created the possibility of accident" } ], "opinion_index": 0 }, { "cite": "303 N.C. 573", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574954 ], "weight": 3, "year": 1981, "pin_cites": [ { "page": "585-6" }, { "page": "585-86" }, { "page": "586" } ], "opinion_index": 0, "case_paths": [ "/nc/303/0573-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 95-127", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 1993, "pin_cites": [ { "page": "(18)" } ], "opinion_index": 0 }, { "cite": "29 C.F.R. \u00a7 1915.74", "category": "laws:admin_compilation", "reporter": "C.F.R.", "pin_cites": [ { "parenthetical": "\"when a walkway is impracticable, a . . . ladder, extending at least 36 inches above the upper landing surface . . . shall be provided\"" } ], "opinion_index": 0 }, { "cite": "29 CFR \u00a7 1918.25", "category": "laws:admin_compilation", "reporter": "C.F.R.", "weight": 3, "year": 1996, "pin_cites": [ { "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "29 CFR \u00a7 1918.23", "category": "laws:admin_compilation", "reporter": "C.F.R.", "weight": 2, "opinion_index": 0 }, { "cite": "29 CFR \u00a7 1915.74", "category": "laws:admin_compilation", "reporter": "C.F.R.", "weight": 2, "opinion_index": 0 }, { "cite": "1996 WL 304532", "category": "reporters:specialty_west", "reporter": "WL", "year": 1996, "pin_cites": [ { "page": "*7", "parenthetical": "ladder inside trench that extended only twelve inches above street level was properly characterized as serious violation" } ], "opinion_index": 0 }, { "cite": "1995 WL 500388", "category": "reporters:specialty_west", "reporter": "WL", "year": 1995, "pin_cites": [ { "page": "*3" } ], "opinion_index": 0 }, { "cite": "1996 WL 88742", "category": "reporters:specialty_west", "reporter": "WL", "year": 1996, "pin_cites": [ { "page": "*10", "parenthetical": "standard inapplicable to ladders used as means of egress from a trench to the upper ground" } ], "opinion_index": 0 }, { "cite": "29 CFR \u00a7 1926.1053", "category": "laws:admin_compilation", "reporter": "C.F.R.", "weight": 2, "year": 1996, "pin_cites": [ { "page": "(b)(1)", "parenthetical": "emphasis added" }, { "page": "(b)", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "372 S.E. 2d 342", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "344" } ], "opinion_index": 0 }, { "cite": "91 N.C. App. 459", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525947 ], "year": 1988, "pin_cites": [ { "page": "464" } ], "opinion_index": 0, "case_paths": [ "/nc-app/91/0459-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 95-141", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1993, "opinion_index": 0 } ], "analysis": { "cardinality": 721, "char_count": 16701, "ocr_confidence": 0.753, "pagerank": { "raw": 5.983486072728073e-08, "percentile": 0.3720303770605931 }, "sha256": "cf13da2456d9123464fd00cd2158f1c006f66c86b4a9a32fcda31a86a3565f8b", "simhash": "1:263944c8963c2ca2", "word_count": 2719 }, "last_updated": "2023-07-14T19:11:14.463583+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges COZORT and WYNN concur." ], "parties": [ "YATES CONSTRUCTION COMPANY, INC., Petitioner v. COMMISSIONER OF LABOR FOR THE STATE OF NORTH CAROLINA, Respondent" ], "opinions": [ { "text": "ARNOLD, Chief Judge.\nJudicial review of OSHA Review Board decision\u2019s is governed by the provisions of the Administrative Procedure Act (Article 4 of Chapter 150B). N.C. Gen. Stat. \u00a7 95-141 (1993). The Administrative Procedure Act provides that the\ncourt reviewing a final decision may affirm the decision of the agency or remand the case for further proceedings. It may also reverse or modify the agency\u2019s decision if the substantial rights of the petitioners may have been prejudiced because the agency\u2019s findings, inferences, conclusions, or decisions are:\n(1) In violation of constitutional provisions;\n(2) In excess of the statutory authority or jurisdiction of the agency;\n(3) Made upon unlawful procedure;\n(4) Affected by other error of law;\n(5) Unsupported by substantial evidence admissible under G.S. 150B-29(a), 150B-30, or 150B-31 in view of the entire record as submitted; or\n(6) Arbitrary or capricious.\nN.C. Gen. Stat. \u00a7 150B-51 (1995).\nPetitioner\u2019s first assignment of error addresses the statutory interpretation of the term \u201cupper landing surface\u201d as used in the OSHA ladder standard. Where it is alleged that an agency incorrectly interpreted a statutory provision, this Court applies de novo review. Brooks, Com\u2019r. of Labor v. Rebarco, Inc., 91 N.C. App. 459, 464, 372 S.E. 2d 342, 344 (1988).\nThe applicable regulation requires that\n[w]hen portable ladders are used for access to an upper landing surface, the ladder side rails [must] extend at least 3 feet (.9m) above the upper landing surface to which the ladder is used to gain access. . . .\n29 CFR \u00a7 1926.1053(b)(1) (1996) (emphasis added). Petitioner claims that the term \u201clanding\u201d as used in the above regulation indicates that the standard does not apply to ladders used as means of egress from a trench. Petitioner bases this argument on the statutory interpretation suggested by the dictionary definition of the noun \u201clanding\u201d and an opinion published by the national Occupational Safety and Health Review Commission (hereinafter OSHRC).\nPetitioner notes that the term \u201clanding\u201d is defined as \u201ca level part of a staircase (as at the end of a flight of stairs).\u201d Webster\u2019s Ninth New Collegiate Dictionary 672 (1985). Petitioner claims this definition supports the position that the ladder standard should apply only to ladders used to access an area of a structure. Accordingly, petitioner contends, the standard does not apply to ladders used to provide access to an excavation site. Sec\u2019y of Labor v. Humbert Sanitary Service, Inc., No. 95-1437, 1996 WL 88742, at *10 (O.S.H.R.C. Feb. 21, 1996) (standard inapplicable to ladders used as means of egress from a trench to the upper ground). We find this argument unpersuasive.\nAt the outset, we note that the interpretation suggested by petitioner is grammatically flawed. Contrary to petitioner\u2019s assertion, the word \u201clanding\u201d is not a noun in the context of the OSHA regulation. The term \u201clanding,\u201d as applied in the context of the ladder standard, is an adjective that modifies the term \u201csurface.\u201d It is used to describe an individual\u2019s destination upon exiting the ladder. See Webster\u2019s 672 (\u201cland\u201d as a verb is defined as \u201cto cause to reach or come to rest in a particular place\u201d). In this case, the \u201cupper landing surface\u201d was the ground located at the top of the trench.\nOur interpretation of the phrase \u201cupper landing surface\u201d is consistent with other decisions rendered by OSHRC and other OSHA regulations with regard to the use of ladders. In Sec\u2019y of Labor v. P.A. Landers, Inc., No. 93-2992, 1995 WL 500388 at *3 (O.S.H.R.C. Aug. 7, 1995), the OSHRC ruled that a \u201cportable ladder [that] extended only one foot instead of three feet above the excavation surface\u201d constituted a serious violation. See also Sec\u2019y of Labor v. P. Gioioso & Sons, Inc., No. 95-0322, 1996 WL 304532 at *7 (O.S.H.R.C. May 24, 1996) (ladder inside trench that extended only twelve inches above street level was properly characterized as serious violation).\nPetitioner also suggests that because the OSHA regulations permit other methods of safe entry and egress from trenches, the drafters did not intend that the ladder standard apply to excavations. A careful review of other OSHA regulations that employ the phrase \u201cupper landing surface\u201d with regard to ladders refutes such an inference.\nFor example, OSHA regulations require that shipyard and long shoring employees are provided safe access when boarding and exiting vessels. 29 CFR \u00a7 1915.74; 29 CFR \u00a7 1918.23; 29 CFR \u00a7 1918.25 (1996). Permissible methods of entry and egress include: ramps, gangways, walkways and ladders. 29 CFR \u00a7 1915.74; 29 CFR \u00a7 1918.23; 29 CFR \u00a7 1918.25. Nevertheless, OSHA regulations provide that \u201c[w]here portable straight ladders are used they shall be of sufficient length to extend at least 36 inches above the upper landing surface.\" 29 CFR \u00a7 1918.25 (emphasis added). See also 29 C.F.R. \u00a7 1915.74 (\u201cwhen a walkway is impracticable, a . . . ladder, extending at least 36 inches above the upper landing surface . . . shall be provided\u201d).\nMoreover, the OSHA regulations at issue in this case, with regard to construction, unequivocally state that the ladder standard applies to \u201cthe use of all ladders, . . . except as otherwise indicated.\u201d 29 CFR \u00a7 1926.1053(b) (emphasis added). The rules are devoid of any exception for ladders used in excavations. We hold that where portable ladders are used for safe entry and egress from an excavation site, the ladder must extend at least three feet above the ground level where the employee exits the trench.\nNext, petitioner argues that even if the ladder standard does apply to excavations, the Review Board erroneously ruled that failure to comply with the regulation was a \u201cserious violation\u201d as defined by N.C. Gen. Stat. \u00a7 95-127(18) (1993).\nA \u201cserious violation\u201d shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists, or one or more practices, means, methods, operations, or processes which have been adopted or are in use at such place of employment.\nId. To establish a serious violation, the Commissioner of Labor must show by substantial evidence that the violation created\n(1) the possibility of an accident\n(2) the substantially probable result of which is death or serious physical injury.\nBrooks, Com\u2019r of Labor v. Grading Co., 303 N.C. 573, 585-6, 281 S.E.2d 24, 32 (1981). \u201cSubstantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.\u201d Lackey v. Dept. of Human Resources, 306 N.C. 231, 238, 293 S.E.2d 171, 176 (1982) (citations omitted). We must review the \u201cwhole record\u201d in determining whether the evidence supports the Review Board\u2019s conclusion that a serious violation was committed. Id.\nFirst, we examine the evidence presented that supported \u201cthe possibility of an accident.\u201d The safety compliance officer testified that the purpose of the ladder inside the trench was to provide safe entry and exit of the trench. He noted that in this case, because the ladder was too short, employees were forced to climb the last couple of feet on the bank of the trench. He testified that employees could be injured either by falling while climbing or by disturbing a \u201cmarginal\u201d trench wall and causing a cave-in. In light of this testimony, we find there was substantial evidence to support the conclusion that the possibility of an accident existed.\nNext, we consider whether there is sufficient evidence to find that the substantially probable result of a possible accident resulting from a violation of the ladder standard was death or serious injury. The safety compliance officer also testified that the most likely result of a fall from the ladder would be fractures. The Review Board has routinely found that broken bones are serious injuries. Brooks v. Int\u2019l Minerals & Chemical Corp., 3 NCOSHD 393, 397 (RB 1989). We agree that fractures are serious injuries that OSHA regulations are designed to prevent. We hold there is sufficient evidence in the record to support the conclusion that the substantially probable result of an accident resulting from violation of the ladder standard would be serious injury.\nPetitioner next argues that there is insufficient evidence in the record to support the conclusion that noncompliance with the trenching standard constituted a \u201cserious violation.\u201d We disagree.\nTo prove a \u201cserious violation\u201d of the trenching standard, the same elements of proof are required as discussed above with regard to the ladder standard. The Commissioner must present substantial evidence that violation of the trenching standard created the possibility of an accident, the substantially probable result of which was death or serious injury. Grading Co., 303 N.C. 573, 585-86, 281 S.E.2d 24, 32.\nThe compliance officer testified that failure to follow required sloping regulations, given the type of soil at this particular site, could lead to a cave-in of the trench walls onto the employees working inside the excavation. See Grading Co., 303 N.C. at 586, 281 S.E.2d at 32 (Commissioner must present evidence that failure to slope this trench created the possibility of accident). The officer testified that he conducted soil tests that indicated that this particular trench, constructed of a loosely compacted soil, would be susceptible to a cave-in if not properly sloped. In addition, he testified that he observed areas on the trench walls which were \u201ccoming down.\u201d He also testified that the most likely result from a cave-in would be fractures or death.\nPetitioner argues that the construction superintendent in charge of the excavation presented testimony that contradicted a finding that a cave-in would result in serious injury. This Court may not substitute \u201cits judgment for the agency\u2019s as between two reasonably conflicting views.\u201d Lackey, 306 N.C. at 238, 293 S.E.2d at 176. Whether or not a cave-in of this particular trench would result in serious injury or death, is a question of fact that is \u201cproperly for the Board to decide by exercise of its authority in weighing the conflicting testimony and the credibility of the witnesses.\u201d In re Dailey v. Board of Dental Examiners, 60 N.C. App. 441, 447, 299 S.E.2d 473, 478, (citations omitted), rev\u2019d on other grounds, 309 N.C. 710, 309 S.E.2d 219 (1983). The Commissioner presented sufficient evidence to support the Review Board\u2019s conclusion that violation of the trenching standard was serious.\nPetitioner\u2019s final assignment of error challenges the Review Board\u2019s order reversing the hearing examiner\u2019s reduction of the penalty for violation of the trenching standard. Petitioner asserts that the order was made upon unlawful procedure. Petitioner cites no authority to support this argument. Therefore the issue is abandoned on appeal. N.C.R. App. P. 28(b)(5).\nAffirmed.\nJudges COZORT and WYNN concur.", "type": "majority", "author": "ARNOLD, Chief Judge." } ], "attorneys": [ "Attorney General Michael F. Easley, by Assistant Attorney General H. Alan Pell, for the State.", "Kenneth R. Keller for petitioner appellant." ], "corrections": "", "head_matter": "YATES CONSTRUCTION COMPANY, INC., Petitioner v. COMMISSIONER OF LABOR FOR THE STATE OF NORTH CAROLINA, Respondent\nNo. COA96-454\n(Filed 6 May 1997)\n1. Labor and Employment \u00a7 26 (NCI4th)\u2014 OSHA safety regulation \u2014 trench excavation \u2014 extension of ladder rails above ground\nA safety regulation requiring that ladder side rails extend at least three feet above the \u201cupper landing surface\u201d to which the ladder is used to gain access did not apply only to ladders used to access an area of a structure but applied to a ladder used as a means of egress from a trench to the ground at the top of the trench.\nAm Jur 2d, Plant and Job Safety \u2014 OSHA and State Laws \u00a7\u00a7 34, 35.\nConstruction and application of provision of 29 USCS \u00a7 658(a) that OSHA citation \u201cshall describe with particularity the nature of the violation.\u201d 48 ALR Fed. 466.\n2. Labor and Employment \u00a7 33 (NCI4th)\u2014 trench excavation \u2014 ladder rails not extended above ground \u2014 serious violation\nSubstantial evidence supported findings by the Safety and Health Review Board that a violation of a safety regulation requiring that a ladder used for entry to and egress from a trench extend three feet above the ground created the possibility of an accident and that the substantially probable result would be serious physical injury so that failure to comply with the regulation was a \u201cserious violation\u201d where the safety compliance officer testified that the short ladder forced employees to climb the last couple of feet on the bank of the trench, that employees could be injured by falling while climbing or by causing a cave-in, and that the most likely result of a fall would be fractures.\nAm Jur 2d, Plant and Job Safety \u2014 OSHA and State Laws \u00a7\u00a7 37', 83, 84, 137; Workers\u2019 Compensation \u00a7 255.\nWhat constitutes \u201cserious\u201d violation under \u00a7 17(b) and (k) of Occupational Safety and Health Act of 1970 (29 USCS \u00a7 666(b) and (j)). 45 ALR Fed. 785.\n3. Labor and Employment \u00a7 33 (NCI4th)\u2014 trench sloping\u2014 serious violation\nSubstantial evidence supported findings by the Health and Safety Review Board that a violation of a trench sloping regulation created the possibility of an accident and that the substantially probable result would be serious physical injury or death so that failure to comply with the regulation was a \u201cserious violation\u201d where the safety compliance officer testified that failure to follow sloping regulations at this particular site could cause a cave-in of trench walls onto employees, that he observed areas on the trench walls which were \u201ccoming down,\u201d and that the most likely result from a cave-in would be fractures or death.\nAm Jur 2d, Plant and Job Safety \u2014 OSHA and State Laws \u00a7\u00a7 37, 83, 84, 137; Workers\u2019 Compensation \u00a7 255.\nWhat constitutes \u201cserious\u201d violation under \u00a7 17(b) and (k) of Occupational Safety and Health Act of 1970 (29 USCS \u00a7 666(b) and (j). 45 ALR Fed. 785.\nAppeal by petitioner from order entered 13 February 1996 by Judge C. Preston Cornelius in Rockingham County Superior Court. Heard in the Court of Appeals 13 January 1997.\nThe relevant facts in this case are undisputed. On 21 July 1993, a safety compliance officer with the North Carolina Department of Labor, conducted an inspection of petitioner\u2019s excavation site at the intersection of Old Lake Jeannette Road and North Elm Street in Greensboro. During the inspection the officer observed employees entering and standing in the bottom of a trench that measured approximately seven feet, six inches deep, and eighteen feet, six inches wide at the top. Mr. Kissick also observed a ladder in the trench that was used by employees for entry and egress. The top of the ladder was approximately two feet below the level of the ground.\nAs a result of the inspection, the Occupational Safety and Health Administration (OSHA) issued several citations to petitioner for failure to comply with mandatory federal safety regulations. Petitioner was charged with the following serious violations: failure to protect each employee from cave-ins by properly sloping the excavation wall as required by 29 CFR 1926.652(a)(1), (b)(l)(I), (c) (hereinafter \u201csloping standard\u201d); failure to perform an inspection of the excavation prior to the start of work by a competent person as required by 29 CFR 1926.650 (hereinafter \u201ccompetent person standard\u201d); and for using a portable ladder for egress from the trench excavation where the ladder side rails did not extend at least three feet above the upper landing surface as required by 29 CFR 1926.1053(b)(1) (hereinafter \u201cladder standard\u201d). The sloping standard and competent person citations were grouped together with a penalty of $1,925.00 The ladder standard violation was assessed a penalty of $825.00.\nPetitioner contested the violations, and the case was heard before Administrative Law Judge Carroll D. Tuttle of the Safety and Health Review Board on 15 February 1994. On 15 July 1994, an order was entered affirming the sloping standard violation with a penalty of $1000.00, affirming the ladder standard violation with a penalty of $825.00, and dismissing the competent person standard violation.\nThe Safety and Health Review Board (hereinafter \u201cReview. Board\u201d) heard petitioner\u2019s appeal on 10 March 1995. On 8 August 1995, the Review Board filed an order reversing the order of 15 July 1994 insofar as it reduced the penalty for violation of 29 CFR 1926.652(a)(1) and affirming the order in all other parts. Petitioner appealed, and the matter was heard on 22 January 1996 before Judge C. Preston Cornelius in the Superior Court of Rockingham County. Judge Cornelius affirmed the decision of the Review Board in all respects. Petitioner appeals.\nAttorney General Michael F. Easley, by Assistant Attorney General H. Alan Pell, for the State.\nKenneth R. Keller for petitioner appellant." }, "file_name": "0147-01", "first_page_order": 185, "last_page_order": 193 }