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Division of Occupational Safety and Health of Industrial Commission of v. Chuck Westenburg Concrete Contractors Inc.12/24/1998
red the deficiencies in the retention system and removed its people and alerted the general contractor, T.L. Roof. It was T.L. Roof that caused the design to be prepared by an engineer of its choosing and it was T.L. Roof that had actually installed the retention anchor system. WESTENBURG had no authority to modify the system.
ADOSH argues that Post v. Industrial Comm'n, 160 Ariz. 4, 770 P.2d 308 (1989), supports its argument that the review board's findings and order is legally insufficient. In Post, our supreme court set aside an administrative law Judge's award in a workers' compensation case because it contained no stated resolution of the conflicting testimony, no findings of ultimate fact, no Conclusions on the legal issues, and was so lacking in specificity that it could not be reviewed. Id. at 7-9, 770 P.2d at 311-13. In so doing, the court reassessed the specificity necessary for a legally sufficient award and concluded that the award should specify the basis for the ultimate Disposition and the evidence supporting that basis. Id. In reaching its Conclusion, the court relied on the Administrative Procedures Act:
"General administrative procedure law requires that any final decision of an administrative law Judge include findings of fact and Conclusions of law . . . . The Judge must separately state the findings and Conclusions, and the findings "shall be accompanied by a concise and explicit statement of the underlying facts supporting the findings" (emphasis added) . . . . Here, the Judge merely recited several factual disputes in the testimony. Not only did he not make a "concise and explicit statement," he made no findings at all. The ultimate finding, that the Judge " onsider the evidence in its entirety," falls far short of the type of dispute resolution the statute requires for administrative decisions and orders." Id. at 7-8, 770 P.2d at 311-12.
In this case, we agree with ADOSH. We believe that the review board's decision is legally inadequate. The record in this case is voluminous and includes 500 pages of hearing transcripts and 150 pages of deposition testimony. The board's findings and order contained no findings of fact or resolution of the conflic- ting evidence. It contained no citations of law and did not specifically mention any of the three citations ADOSH issued to Westenburg Contractors or the legal issues associated with each citation.
The review board found only that Westenburg Contractors was not responsible for the soil retention system, and it was the failure of that soil retention system that caused the fatality in this case. None of the three citations Westenburg Contractors received was based on an assertion that Westenburg could have modified the soil retention system or prevent its failure. For these reasons, we conclude that the findings and order are legally insufficient and should be reversed.
ADOSH next argues that the review board erred by failing to find that Westenburg Contractors had violated 29 C.F.R. ยง 1926.652(k)(1) which provides:
"Daily inspections of excavations, the adjacent areas, and protective systems shall be made by a competent person for evidence of a situation that could result in possible cave-ins, indications of failure of protective systems, hazardous atmospheres, or other hazardous conditions. An inspection shall be conducted by the competent person prior to the start of work and as needed throughout the shift. Inspections shall also be made after every rainstorm or other hazard increasing occurrence. These inspections are only required when employee exposure can be reasonably anticipated." (Emphasis added.)
For purposes of excavations, a competent person
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