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You Say Tomato, I Say Tomahto. But When it Comes to the CalOSHA Appeals Board, They Can Say it Any Way They Please

Updated: Jan 8



We lawyers do a fair amount of reading. Documents. Court decisions. Passive aggressive correspondence from opposing counsel. As well as statutes, regulations and administrative guidance. And you might be surprised how often words can be ascribed very different meanings depending on who is reading it. Such, I suppose, is the nature of language. When it comes to public agency interpretations of its own regulations, however, you would be well to heed that authors are often the best interpreters of their own works, or at least that’s how the courts tend to view it, as in the next case L & S Framing Inc. v. California Occupational Safety and Health Appeals Board, Case No. C096386 (July 24, 2023).


The L & S Framing Case

Martin Mariano, an employee of L & S Framing, Inc., suffered a brain injury when he fell from the “second floor” while working on a single family house. What, exactly, this “second floor” was, was a point of a contention in the legal case that followed.

The diagram below isn’t to scale, and I’m not sure if it even accurately represents the floor layout, but based on the description in the case this is about as good a representation as I can make:



Basically, while laying a chalk line while on a second floor platform off a staircase, Mariano fell off the side of the side of the platform and landed onto a concrete floor on the first floor where he sustained a brain injury.


CalOSHA later issued three general citations and one serious accident-related citation to L & S. In its notice to L & S, CalOSHA stated that “the employer did not provide railings and toe boards meeting the requirement of Article 16 around the Stawell of a story [sic] residential building under construction. As a result, an employee was seriously injured when he fell from the open side of the stairwell and landed approximately 11 feet below onto a concrete floor.”


Later, in its serious accident-related citation, CalOSHA stated “the employer did not provide the exposed sides of a stairwell with temporary railings and toeboard as prescribed in Section 1620 [of CalOSHA’s Safety Orders]. As a result, an employee was seriously injured when he fell from the exposed sides of the stairway and landed approximately 11 feet below onto a concrete floor.” The citation also cited a Section 1626(a)(5) of CalOSHA’s Safety Orders.


The problem, however, is that there is no Section 1626(a)(5). Rather, Section 1626(b)(5) of CalOSHA’s Safety Orders provides that “[u]nprotected sides and edges of stairway landings shall be provided with railings. Design criteria for railings are prescribed in Section 1620 of these safety orders.”


L & S appealed the citation and hearing was held before an Administrative Law Judge. On the first day of the hearing, the ALJ granted CalOSHA’s request to amend the citation to refer to Section 1626(b)(5) rather than the nonexistent subdivision (a)(5). Later, CalOSHA moved to amend the citation to allege, in the alternative, a violation of Section 1632(b)(1). That section provides that “[f]loor, roof and skylight openings shall be guarded by either temporary railings and toeboards or by covers.” The ALJ denied CalOSHA’s motion.


Following the trial, CalOSHA again tried to amend the citation, this time to conform to the evidence, to allege a violation of Section 1626(a)(2). That section provides that “[r]ailings and toe boards meeting the requirements of Article 16 of these safety orders shall be installed around stairwells.” The ALJ denied CalOSHA’s request.


In its decision, the ALJ found that Section 1626(b)(5) was “inapplicable to circumstances,” presumably, because the AJL felt that Mariano hadn’t fallen from a “stairwell landing.” CalOSHA appealed by filing a petition for reconsideration with the Appeals Board.


In its petition for reconsideration, CalOSHA framed the issues as:

  1. “Was the unguarded side from which Mariano fell the side of a stairwell landing?”

  2. “Was the unguarded side from which Mariano fell the side of a stairwell.”

  3. “Was the unguarded side from which Mariano fell a floor opening.”

  4. “Did the ALJ abuse her discretion in denying [CalOSHA’s] motion to amend [the citation].”

  5. “Did the ALJ abuse her discretion in declining to amend [the citation post-hearing to conform to the evidence].”


The Appeals Board agreed with the ALJ that the area where Mariano fell was not a stairway landing and therefore concluded that L & S did not violate Section 1626(b)(5). However, the Appeals Board held that the ALJ had erred in not permitting CalOSHA to amend its citation to allege a violation of Section 1632(b)(1) and that Mariano’s fall could be characterized as a fall through a “floor opening.” Further, the Appeals Board held that the ALJ erred in not permitting CalOSHA to amend its citation post-hearing to allege a violation of Section 1626(a)(2) and that L & S’s definition of “stairwell,” taken from the Construction Dictionary, was too narrow and accepted CalOSHA’s broader definition of the term “stairwell.”


Note: The findings of the Appeals Board are interesting, and different than what one would normally expect in a civil appeal, in that the Appeal Board, rather than remanding the case back to the ALJ to determine whether there was a violation of Section 1632(b)(1) (the “floor opening” citation”) and Section 1626(a)(2) (the “stairwell” citation), found that both of these sections had been violated based on the evidence presented at the hearing.


L & S later filed a petition for writ of mandate to the Superior Court. The Superior Court denied the petition and L & S appealed.


The Appeal


On appeal, the 3rd District Court of Appeal explained that on an appeal from an order denying a petition for writ of mandate, the Court of Appeal is limited to determining whether “(a) the appeals board acted without or in excess of its powers. (b) the order or decision was procured by fraud. (c) the order or decision was unreasonable. (d) the order or decision was not supported by substantial evidence. (e) if findings of fact are made, such findings of fact support the order or decision under review.”


Further, explained the Court of Appeal, under the provisions of the Labor Code:


“Nothing . . . shall permit the court to hold a trial de novo, to take evidence, or to exercise its independent judgment on the evidence” [Labor Code §6629] “The findings and conclusions of the appeals board on questions of fact are conclusive and final and are not subject to review. Such questions of fact shall include ultimate facts and the findings and conclusions of the appeals board.” [Labor Code §6630] “Our function on appeal is the same as that of the trial court in ruling on the petition for the writ. We must determine whether based on the entire record the [Appeals] Board’s decision is supported by substantial evidence and whether it is reasonable. Where the decision involves the interpretation and application of existing regulations, we must determine whether the administrative agency applied the proper legal standard. Since the interpretation of a regulation is a question of law, while the administrative agency’s interpretation is entitled to great weight, the ultimate resolution of legal questions rests with the courts . . . An agency’s expertise with regard to a statute or regulation it is charged with enforcing entitles its interpretation of the statute or regulation to be given great weight unless it is clearly erroneous or unauthorized. The [Appeals] Board is one of those agencies whose expertise we must respect.” However, “[a]n administrative agency cannot alter or enlarge the legislation, and an erroneous administrative construction does not govern the court’s interpretation of the statue.”

With that being said, the Court of Appeal dispensed with the procedural issues summarily. As to CalOSHA’s motion to amend its citation to allege a violation of Section 1626(b)(5), as opposed to non-existent Section 1626(a)(5), the Court held that Government Code section 1107, which is referenced in Labor Code section 6603, “contemplates amendments to accusations” and, further, that Government Code section 11516, which is also referenced in Labor Code section 6603, “authorizes amendment of an accusation ‘after submission of the case for decision.'”


Finally, held the Court of Appeal, Labor Code section 386(a) provides that “[t]he Appeal Board may amend the issues on appeal or the Division action after a proceeding a submission for decision” and, thus, “as a general matter, post-submission amendments are authorized.”


As to CalOSHA’s motion amend the citation to allege, in the alternative, a violation of Section 1632(b)(1)’s “floor opening” regulation, the Court of Appeal held that the “modern practice of courts” to allow claims to be alleged in the alternative and, further, that permitting claims to be alleged in the alternative is consistent with interpretations of the federal Occupational Safety and Health Act. Moreover, held the Court, the timing of CalOSHA’s motion mid-hearing, unless prejudice can be shown, is permissible. And, here, held the Court, there was “no indication of bad faith in the record or any specific allegations in [L & S’s] briefs.”


Finally, as to CalOSHA’s post-hearing request to allege a violation of Section 1626(a)(2)’s “stairwell” regulation, the Court of Appeal held that “again, there is no indication of bad faith” and, further, “the proposed amendment . . . did not involve any different facts.” Ouch, zero for three. But that wasn’t the end of it.


As to the substantive issues, namely, whether Mariano fell from a “floor opening” under Section 1632(b)(1) or from a “stairwell” under Section 1626(a)(2), the Court of Appeal emphasized that an administrative agency’s interpretation of its own regulation is entitled to deference, and that here the evidence presented at the hearing supported the Appeal Board’s decision that Mariano fell from a “floor opening” as well as from a “stairwell.” Ouch and ouch.


Conclusion


This is one of those cases where I think the contractor made good arguments based on the facts and the law, however, as the Court of Appeal emphasized, an administrative agency’s interpretation of its own regulations is given great weight and deference, so while the contractor’s arguments were (to me) sound the contractor was also fighting an uphill battle.

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