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Division of Occupational Safety and Health of Industrial Commission of v. Chuck Westenburg Concrete Contractors Inc.12/24/1998
authority to alter the soil retention system. Robles, Sr. testified that he had never walked around the top of the west wall so he had never seen any potholes or cracks. He stated that he stayed inside the excavation where his work was performed.
Armando Montillo (Montillo) testified that in March 1993, he was a field superintendent with Westenburg Contractors over- seeing the cement crew working at the TMC parking garage. He was Robles, Sr.'s direct supervisor. Montillo testified that Robles, Sr. had the on-site authority to stop the work and remove his crew if he observed an unsafe condition. But he noted that neither he nor Robles, Sr. had any authority to change the soil retention system. Montillo stated that he never was aware of any sloughing on the west wall nor any concerns that the west wall might fall. Finally, he was unaware that OSHA had an excavation standard or a competent person requirement.
Charles E. Westenburg, the president and treasurer of Westenburg Contractors, testified that his company was performing the concrete work on the new TMC parking garage. Westenburg testified that he never had walked inside the excavation or around its perimeter. Further, he had not heard of the "competent person" requirement before this injury and was not familiar with nor had any training in OSHA's excavation standard. He testified that Robles, Sr. was directly responsible for the safety of Westenburg Contractors' employees on the jobsite, but he had not provided Robles, Sr. with any excavation safety training.
Westenburg testified that he entered into a subcontract with Roof to provide concrete services for this job. He stated that the contract required him to have "competent supervision" on site, i.e., Robles, Sr. With regard to the soil retention system, Westenburg testified that he had no knowledge about it. He stated that Westenburg Contractors did not install it and had no authority to correct any problems with it.
Jack L. Mickel, Ph.D (Dr. Mickel), testified that he was an engineer specializing in soils and excavations and was one of the authors of Subpart P, OSHA's excavation standard. He stated that the excavation standard is intentionally written for regular working people who have received competent person training and not for professionals. Dr. Mickel testified that with minimal training, Robles, Sr. could have learned to evaluate the soil at a jobsite and recognize hazardous conditions in an excavation.
Dr. Mickel testified that a competent person is one who is trained to classify soil, to recognize hazardous conditions, and has the authority to do something about those conditions. He stated that in some situations the competent person's authority may be limited to removing his workers from a dangerous area until someone else can correct the problem. He noted that conditions in an excavation are constantly changing, and for that reason, it is critical to the employees' safety to have a competent person who is constantly vigilant to these changing conditions. Dr. Mickel testified that employees never should have been sent to work along the west wall on March 12, 1993.
Dr. Mickel testified that Westenburg Contractors was responsible for its own employees' safety and could not rely on others to do this for it. For that reason, each subcontractor was responsible to have a competent person trained under the OSHA standard. He agreed that Westenburg Contractors had a right to rely on the soil protection system installed by Roof, but he stated that Westenburg Contractors also had an obligation to perform inspections of its own. Finally, Dr. Mickel stated that Westenburg Contractors' employees lacked the necessary training
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