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Division of Occupational Safety and Health of Industrial Commission of v. Chuck Westenburg Concrete Contractors Inc.12/24/1998
by the commission against an employer who is assessed a penalty under § 23-418, subsection A for each employee injury resulting in perma- nent disability or death if the commission finds all of the following:"
"1. The employee injury resulting in permanent dis- ability or death was caused by the violation for which the employer is assessed a penalty under § 23-418, subsection A [a wilful violation]."
"2. Compensation benefits are paid to the injured employee, or in the event of death, his dependents, under chapter 6 of this title."
"3. The violation for which the employer is assessed a penalty under § 23-418, subsection A, did not result from the injured or deceased employee's disobedience to specific instructions given to the employee regarding the job condition causing his injury or death or relating to the safety standards applicable to that job condition."
Because the evidence against Westenburg Contractors fails to establish that it was guilty of a wilful violation, this additional statutory penalty should not have been assessed. We thus affirm the review board's reversal of this penalty, albeit for different reasons than those stated by the board.
ADOSH next argues that the review board erred by ordering that Westenburg Contractors be reimbursed for the transcription cost of the ICA hearing. Following the administrative law Judge's decision, if a party requests review before the review board, the record of the ICA hearing "shall be transcribed at the expense of the party requesting review. The record shall be certified to be true and correct by the administrative law Judge." A.R.S. § 23-423(C).
In this case, Westenburg Contractors had ordered and paid for a transcript of the ICA hearing in order to prepare its request for review. It obtained the approval of ADOSH's attorney to use this transcript for A.R.S. § 23-423(C) purposes. Despite this approval, Administrative Law Judge Enriquez refused to certify the transcribed record to the review board and ordered Westenburg Contractors to request and pay for an additional transcript. After Westenburg Contractors paid for the second transcript on September 25, 1995, Administrative Law Judge Enriquez certified the record to the review board.
The review board found the second transcript to be an unnecessary expenditure for Westenburg Contractors and ordered that Westenburg Contractors be reimbursed. The review board did not abuse its discretion by ordering the reimbursement of what appears to be an unnecessary expenditure arbitrarily imposed. The board's review authority is very broad and provides that it may "affirm, reverse, modify or supplement the decision of the administrative law Judge and may make such Disposition of the case as it deter- mines to be appropriate." A.R.S. § 23-423(G).
ADOSH last argues that the review board erred by sua sponte awarding attorneys' fees to Westenburg Contractors. In fact, the review board's findings and order is devoid of any mention of attorneys' fees. Although the board clearly discussed awarding attorneys' fees, there is no indication in our record that those fees were ever actually awarded. In its answering brief, Westenburg Contractors makes a provisional request for attorneys' fees incurred at all levels in this matter as a "prevailing party." See A.R.S. § 12-348(A)(2). Based on our resolution of this matter, Westenburg Contractors is not the prevailing party. ADOSH has not requested attorneys' fees.
CONCLUSION
For all of the foregoing reasons, we set aside the review board's findings and order in this case as noted.
JON W. THOMPSON, Presiding Judge
CO
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