Judge James C. Chalfant, Case Number: 22STCP03019, Date: 2023-10-26 Tentative Ruling

Petitioner Guy Atkinson Construction (“Atkinson”) petitions for a writ of administrative mandate to compel Respondent California Occupational Safety and Health Appeals Board (“Board”) to vacate its decision sustaining a serious accident-related citation.

The court has read and considered the moving papers, opposition,[1] and reply,[2] and renders the following tentative decision.

Petitioner Atkinson commenced this proceeding on August 11, 2022, alleging a cause of action for administrative mandamus. The verified Petition alleges in pertinent part as follows.

On July 20, 2018, Real Party-in-Interest DOSH began an investigation at a worksite located at Pomona, California. As a result of its inspection, on January 19, 2019, DOSH cited Atkinson for one General citation (“Citation 1”) and a serious accident-related Citation 2 based on various violations of Title 8 of the California Code of Regulations (“CCR”).

Atkinson filed a timely appeal, and an evidentiary hearing took place before the Board’s Administrative Law Judge (“ALJ”). On October 20, 2021, the ALJ issued her decision affirming Citation 1 but granting Atkinson’s appeal of Citation 2.

On November 19, 2021, DOSH filed a petition for reconsideration. On July 13, 2022, the Board issued its decision sustaining Citation 2 and the accompanying penalty of $18,000.

Atkinson contends that the Board acted unreasonably and exceeded its powers contrary to Labor Code section 6629. The Board’s findings do not support the decision and the findings are not based on substantial evidence in the record. The Board also abused its discretion by failing to apply Board precedent in issuing its decision. Atkinson seeks a writ of mandate setting aside and vacating the decision and awarding costs.

Labor Code[4] section 6627 authorizes mandamus review of final Board decisions. CCP section 1094.5 is the administrative mandamus provision which structures the procedure for judicial review of adjudicatory decisions rendered by administrative agencies. Topanga Ass’n for a Scenic Community v. County of Los Angeles, (“Topanga”) (1974) 11 Cal.3d 506, 514-15. The court’s review is limited to whether (a) the Board acted in excess of its powers, (b) the Board’s decision was procured by fraud, (c) the decision was unreasonable, (d) the decision was not supported by substantial evidence, and (e) if any findings of facts support the order or decision under review. §6629.

Judicial review of the Board’s decision is governed by the substantial evidence standard. §6629(d); Overaa Construction v. California Occupational Safety and Health Appeals Board, (2007) 147 Cal.App.4^th 235, 244-45. “Substantial evidence” is relevant evidence that a reasonable mind might accept as adequate to support a conclusion (California Youth Authority v. State Personnel Board, (“California Youth Authority”) (2002) 104 Cal.App.4th 575, 585) or evidence of ponderable legal significance, which is reasonable in nature, credible and of solid value. Mohilef v. Janovici, (1996) 51 Cal.App.4th 267, 305, n.28. Under the substantial evidence standard, the court must give the evidence every reasonable inference and resolve all conflicts so as to support the agency’s finding. Gaehwiler v. California Occupational Safety and Health Appeals Board, (“Gaehwiler”) (1983) 141 Cal.App.3d 1041, 1045, n. 2. The trial court considers all evidence in the administrative record, including evidence that detracts from evidence supporting the agency’s decision. California Youth Authority, supra, 104 Cal.App.4th at 585.

The agency’s decision must be based on the evidence presented at the hearing. Board of Medical Quality Assurance v. Superior Court, (1977) 73 Cal.App.3d 860, 862. The hearing officer is only required to issue findings that give enough explanation so that parties may determine whether, and upon what basis, to review the decision. Topanga, supra, 11 Cal.3d at 514-15. Implicit in CCP section 1094.5 is a requirement that the agency set forth findings to bridge the analytic gap between the raw evidence and ultimate decision or order. Id. at 515.

An agency is presumed to have regularly performed its official duties (Evid. Code §664), and the petitioner therefore has the burden of proof. Steele v. Los Angeles County Civil Service Commission, (1958) 166 Cal.App.2d 129, 137. The petitioner has the burden of demonstrating that the agency’s findings are not supported by substantial evidence in light of the whole record. Young v. Gannon, (2002) 97 Cal.App.4th 209, 225; Gaehwiler, supra, 141 Cal.App.3d at 1045, n.2. “[T]he burden of proof falls upon the party attacking the administrative decision to demonstrate wherein the proceedings were unfair, in excess of jurisdiction or showed prejudicial abuse of discretion. Afford v. Pierno, (1972) 27 Cal.App.3d 682, 691.

DOSH has primary responsibility for administering and enforcing the California Occupational Safety and Health Act of 1973 (“Act”), §6300 et seq. DOSH inspects workplaces and issues citations for violations of the safety orders adopted by the Occupational Safety and Health Standards Board. §§ 142, 6307, 6308 et seq.

The Board is an independent adjudicatory agency responsible for resolving appeals from citations and special orders issued by the DOSH. §§ 6600, 6600.5; Rick's Electric Inc. v. California Occupational Safety and Health Appeals Bd., (2000) 80 Cal.App.4th 1023, 1027. DOSH has the burden of proving a violation of a safety order by preponderance of evidence. RJN Ex. A (Barrett Business Services, Inc., (2016) Cal/OSHA App. 315526582)

There shall be a rebuttable presumption of a “Serious” violation in a place of employment if DOSH demonstrates that there is a realistic possibility that death or serious physical harm could result from the actual hazard created by the violation. §6432(a)(2). The demonstration of a violation is not sufficient by itself to establish that the violation is Serious. Id. The actual hazard may consist of, among other things, the existence in the place of employment of one or more unsafe or unhealthful practices, means, methods, operations, or processes that have been adopted or are in use. Id. A realistic possibility is one within the bounds of reason, and not purely speculative. RJN Ex. C (United Parcel Service, (2018) Cal/OSHA App. 1158285).

If DOSH establishes a presumption that a violation is Serious, the employer may rebut the presumption and establish that a violation is not Serious by demonstrating that the employer did not know and could not, with the exercise of reasonable diligence, have known of the presence of the violation. The employer may accomplish this by demonstrating both of the following: (1) the employer took all the steps a reasonable and responsible employer in like circumstances should be expected to take, before the violation occurred, to anticipate and prevent the violation, taking into consideration the severity of the harm that could be expected to occur and the likelihood of that harm occurring in connection with the work activity during which the violation occurred; and (2) the employer took effective action to eliminate employee exposure to the hazard created by the violation as soon as the violation was discovered. §6432(c).

Factors for determining whether an employer took all the steps of a reasonable and responsible employer pursuant to section include but are not limited to: (1) Training for employees and supervisors relevant to preventing employee exposure to the hazard or to similar hazards; (2) Procedures for discovering, controlling access to, and correcting the hazard or similar hazards; (3) Supervision of employees exposed or potentially exposed to the hazard; (4) Procedures for communicating to employees about the employer's health and safety rules and programs; and (5) Information that the employer wishes to provide, at any time before citations are issued, including (a) the employer's explanation of the circumstances surrounding the alleged violative events; (b) why the employer believes a serious violation does not exist; (c) why the employer believes its actions related to the alleged violative events were reasonable and responsible; and (d) any other information that the employer wishes to provide. §6432(b)(1).

The Board has held that if a hazard is in plain view, it necessarily constitutes a Serious violation because the employer can detect it by exercising reasonable diligence. RJN Ex. B (Home Depot USA, Inc., (2017) Cal/OSHA App. 15-2298).

All machinery and equipment shall be designed or engineered to safely sustain all reasonably anticipated loads in accordance with recognized engineering principles. 8 CCR §3328(a)(1). It shall not be used or operated under conditions of speeds, stresses, loads, or environmental conditions that are contrary to the manufacturer's recommendations or, where such recommendations are not available, the engineered design. 8 CCR §3328(a)(2).

Industrial trucks and tow tractors shall be operated in a safe manner. 8 CCR §3650(t). When provided by the industrial truck manufacturer, an operator restraint system such as a seat belt shall be used. 8 CCR §3650(t)(33).

The penalty for any Serious violation of an occupational safety and health standard, order, or special order, is up to $25,000 per violation, with a minimum base penalty of $18,000. 8 CCR §336(c)(1). A Serious violation is one that creates a realistic possibility of death or serious physical harm. 8 CCR §334(c)(1).

If the employer commits a Serious violation and DOSH has determined that the violation caused death or serious injury, illness or exposure as defined pursuant to section 6302, the penalty shall not be reduced except as based on the size of the business per 8 CCR section 336(d)(1). 8 CCR §336(c)(2). The penalty shall not exceed $25,000. Id. To sustain an accident-related classification, the DOSH must demonstrate a causal nexus between the violation and the serious injury. RJN Ex. C (United Parcel Service).

Any employer served with a citation by DOSH may appeal it to the Board within 15 working days. §§ 6600, 6600.5, 6601, 6601.5, 6602. The Board may appoint a hearing officer or ALJ to hold a hearing, ascertain facts, try the issues in the case, and make and file a finding, order, or decision. §§ 6604, 6605, 6608.

The hearing need not be conducted according to technical rules relating to evidence and witnesses. 8 CCR §376.2. Any relevant evidence shall be admitted if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rule which might make improper the admission of such evidence over objection in civil actions. Id.

If the employer fails to notify the Board that it intends to contest the citation within 15 working days, the citation shall be deemed a final order of the Board and not subject to review by any court or agency. §6601. The Board may extend the 15-day period for good cause. Id.

Within 30 days after service of any final order or decision made and filed by the ALJ, any party aggrieved thereby may, upon the grounds listed in section 6617, petition the Board for reconsideration of the ALJ’s decision. §6614. Parties waive any arguments not included in the petition. §6618. Upon reconsideration, the Board may affirm, rescind, alter, or amend the order or decision of the ALJ. §§ 6620, 6621, 6622. Any such decision shall be in writing, signed by a majority of the Board, and shall state the evidence relied upon and specify in detail the reasons for the decision. §6623.

A party may seek judicial review of a final decision or order of the Board. §6627. The party must file a petition for writ of mandate within “30 days after a petition for reconsideration is denied” or “within 30 days after the filing of the order or decision following reconsideration.” §6627. The court may reverse the Board’s decision if (1) the Board exceeded its powers, (2) the decision was procured by fraud, or (3) the decision was unreasonable or not supported by substantial evidence in the record. §6629.

The Board’s findings and conclusions on questions of fact are conclusive and are not subject to review. The court shall enter judgment either affirming or annulling the order or decision, or the court may remand the case for further proceedings before the appeals board. §6630.

In a DOSH incident report, Los Angeles County Fire Department (“LAFD”) employee Danielle Smith reported the death of a construction worker at 9:35 a.m. on July 20, 2018. AR 453. The worker had fallen off the freeway wall and was pinned under a large forklift. AR 453.

Atkinson’s incident report identified the victim as Jordan Hoyt (“Hoyt”). AR 473. He was operating the 1245 Xtream Forklift on the unpaved access road when the forklift randomly left the roadway and fell into a ravine. AR 473. Atkinson found the forklift in an upright position with Hoyt face down under the left rear wheel without a pulse. AR 473. LAFD arrived at approximately 9:55 a.m. and confirmed Hoyt had no pulse. AR 473. LAFD also found Hoyt’s seatbelt unbuckled. AR 473. Fire rescuers arrived at 10:00 a.m. to help pull Hoyt’s body out, which they finally did at about 11:00 a.m. AR 473.

An eastbound picture of the accident site at 12:53 p.m. that day shows that the wall on one side of the access road has three-feet-high footing. AR 191-92, 395. The other side is next to a ravine with grass and trees. AR 395. A westbound picture shows where the forklift originally was parked up the hill. AR 201-02, 403. Other pictures show where the forklift landed in the ravine after the accident. AR 194, 399.

A soil compaction test from the day of the accident reflects two ten-foot-wide tests on areas that were respectively 56 and 33 feet long. AR 467, 469. The calculated relative compaction for both was 91%. AR 467, 469.

On January 19, 2019, DOSH issued two citations to Atkinson. AR 1-7. Citation 1 was a General violation under 8 CCR section 3650(t)(33) for failure to use an operator restraint system such as a seat belt when provided with an industrial truck. AR 6. The recommended fine was $750. AR 6.

Citation 2 was a Serious Accident-Related violation of 8 CCR section 3328(a), use of machinery under conditions of speeds, stresses, loads, or environmental conditions that were contrary to the manufacturer's recommendations. AR 7. The forklift’s manufacturer advised against its use on soft road edges that could collapse under the forklift, which led to Hoyt’s death. AR 7. The recommended fine was $18,000. AR 7.

Atkinson appealed the citations. The Board’s ALJ conducted a hearing on the appeal in February and June 2021. AR 101, 485. Although Atkinson appealed both citations, it accepted Citation 1 and the parties stipulated to focus on Citation 2. AR 112-13.

Atkinson’s appeal of Citation 2 contended that the company did not violate the safety order, the classification was incorrect, and the proposed penalty was unreasonable, and it also raised 31 affirmative defenses. AR 114. Atkinson stipulated that the accident resulted in Hoyt’s death. AR 115.

Steven Honjio (“Honjio”) has been a DOSH senior safety engineer for 15-16 years. AR 126. He has been involved in 1500 construction investigations, including a lot of forklift investigations. AR 129-30. He is current on all mandated Cal/OSHA training. AR 129.

Honjio conducted the July 20, 2018 investigation into Hoyt’s accident, from the initial site visit with associate engineer Mariaeva Garland to signing the citations. AR 130-31. Atkinson was improving the 10 Freeway near Cal Poly Pomona, which included building, widening, and improving a retaining wall on either side. AR 132. The accident site was close to Cal Poly Pomona on the 10 freeway going east. AR 132.

Honjio spoke with Atkinson Safety Manager Ryan Castillo (“Castillo”). AR 145. Castillo said Hoyt usually wore his seat belt and was certified to operate the forklift. AR 148. He was capable of driving it on rough terrain. AR 148. Atkinson had never received any complaints about safety or width of the access road, which had been present for the whole project. AR 148.

Honjio also spoke with Gary Payne (“Payne”), an Atkinson carpenter foreman and Gary’s direct supervisor. AR 150. Payne had the authority to stop someone when they were doing something unsafe, and he would do so. AR 150. He reported that the forklift had been parked west of the site where the ravine is. AR 151. Atkinson was moving it along the access road to the east of the ravine for scaffolding work. AR 151.

Honjio spoke to Atkinson grading foreman Rex Henderson (“Henderson”), who confirmed that no employee complained about the access road. AR 152-53, 156. No one told the crew to not use that access road or that it was unsafe. AR 153. Henderson also explained that the road was okay to him, and that Atkinson could not make it wider without throwing dirt into the ravine and causing environmental issues. AR 156.

Honjio interviewed Travis Todd Hicks (“Hicks”), another foreman, who said no rule prohibited any equipment from being used on the access road. AR 157. Someone could drive a regular-sized truck like a Ford F-150 on it if so desired. AR 157-58.

There was no witness to the forklift rollover, but there were witnesses at the site. AR 168.

Honjio measured the distance between the retaining wall and the beginning of slope down to the ravine, which ranged from 10.5 to 12 feet. AR 172, 175. At its narrowest point, which was right above the forklift, the distance was 129 inches. AR 172, 175, 202. The parties later stipulated to the 129-inch measurement. AR 230-31. The forklift was 99 inches wide, from the outside of one back wheel to the other. AR 180. This left 15 inches of road on either side of the forklift. AR 234-35.

Honjio also checked the slope of the access road. AR 183. In his experience, it was not sufficiently steep to make it prohibitive to drive an all-terrain forklift. AR 183-84. The slope was well within the manufacturer’s recommendations, but he wanted to document that he confirmed it. AR 184. The height of the access road changed by 4.875 inches per 4-6 feet. AR 188-89. This was well within the tolerances of the vehicle’s capability of climbing up and down a road. AR 189.

Honjio also climbed down the slope of the ravine to examine the forklift. AR 199. The soil was not sandy. AR 221. It was loose and dry like a spoils pile type of soil. AR 199, 221. It was also steep, which made it hard for Honjio to walk or climb up and down. AR 199. One of the pictures depicts this. AR 207. Nothing in the investigation notes suggests that Atkinson had any work to do in the ravine. AR 278-79.

Because the width of the road was asymmetrical and the dirt was sloughed off, it appeared that the side of the road collapsed from the weight of the forklift and fell into the ravine. AR 222, 227. Ex. 7-24 shows this uneven edge. AR 227. Ex. 7-22 shows Honjio measuring the access road right above where the forklift landed, his foot on the tape measure to hold it flat on the edge of the road. AR 213-14, 220. Because the tape measure does not bend left or right, it is a straight edge that shows where the road collapsed just above where the forklift landed. AR 214.

There is no indication that the road gave way within the 129-inch distance from the wall out where the forklift wheels would be traveling. AR 283. The forklift manufacturer’s manual does not say a rough terrain forklift cannot drive on a compacted road like this access road. AR 280. Rough terrain forklifts are meant for rough terrain like dirt roads. AR 280. There was no indication of a load or additional stress on the forklift from an outside force. AR 289.

The manufacturer manual’s Safety section advises users to operate the forklift for maximum stability to avoid injury. AR 253-54. Unstable forklifts can tip over resulting in serious injury, death, or property damage. AR 254. “Use caution around steep slopes, ridges, ditches and ravines.” AR 254-255. “Stay away from soft edges that could collapse under the forklift.” AR 255. The manual says the forklift weighs 32,930 pounds, which is very heavy. AR 260. The parties stipulated that this was about six times heavier than a pickup truck. AR 261-62.

Honjio characterized the violation as Serious and Accident-Related because it caused Hoyt’s death. AR 264.

Ramsey Doumani (“Doumani”) spent ten years as a materials tester for Caltrans and similar agencies through a private company. AR 497, 499, 502. He prepared the soil compaction tests in this case on a standard template based on a ten-foot-wide sample. AR 507-08. These samples were at least ten feet wide but could have been more. AR 519, 544.

Average compaction of these samples was 91%. AR 543-44, 548. Doumani was not qualified to say whether the sample would be properly compacted for Caltrans purposes. AR 550.

Thia Nilawat (“Nilawat”) is a DOSH associate safety engineer. AR 557-58. He filled the intake form when Atkinson Area Safety Manager Kirk Hansen (“Hansen”) called the office to report the incident on July 20, 2018 at 11:45 a.m. AR 562. Hansen explained that Hoyt was operating a 12K extendable forklift and either was close to the edge or the ground gave out and the forklift rolled and crushed Hoyt underneath it. AR 566.

The description in the form Nilawat filled out was not a conclusion about what caused the accident; it was just a summary intake of information for initiating an investigation. AR 576.

Benjamin Turnham (“Turnham”) is an Atkinson heavy equipment mechanic. AR 594-95. At the time of the accident, he had been part of the project for two years. AR 597.

Turnham was familiar with Atkinson requirements for safe equipment operation. AR 603. His responsibilities include ensuring no one violates safety rules. AR 603. He never observed anyone break those rules in operating a forklift. AR 603. If anyone had violated an operator’s manual rule while Turnham was on site, he would have stopped that employee and prohibited them from proceeding. AR 613. Before Hoyt’s death, the project had no accidents. AR 603-04.

When he arrived at the scene of the accident, he checked for injuries and tried to understand what happened. AR 596. He then operated the forklift to relieve the pressure on Hoyt’s body and help LAFD get the forklift off him. AR 596.

Turnham wondered how the forklift fell down the slope. AR 596. It did not look like a section of the road had given way. AR 596. Turnham agreed that the forklift left the roadway and fell into the ravine for “unknown reasons.” AR 608-09. The road’s soil looked as compact as it always did. AR 632. Atkinson did not have work to do in the ravine. AR 604-05. While it was possible to drive off the edge of the access road, the soil there was soft and not as compact. AR 637, 639.

Turnham had seen and driven various types of vehicles on that road, from pickup trucks to oilers to 80-ton rough terrain cranes. AR 598. The 100,000-pound crane is wider, taller, and heavier than the 40,000-pound forklift at issue. AR 599. The crane spans the full width of the access road, but neither it nor the forklift had caused safety concerns. AR 601. The forklift uses that road every day. AR 601.

Hoyt did not have his seatbelt when the forklift flipped or rolled off the road. AR 621-22. He therefore was ejected and possibly thrown, landing where the forklift’s left rear tire would land. AR 621.

On October 20, 2021, the ALJ issued her decision affirming Citation 1 and its $750 fine but granting the appeal as to Citation 2. AR 677, 682-83.

DOSH had the burden of proving a violation by preponderance of the evidence. AR 679. At issue was whether Atkinson operated the forklift under speeds, stresses, loads, or environmental conditions contrary to the manufacturer’s recommendations. AR 678-79. DOSH had not presented any evidence about speed. AR 680.

As to stress, the DOSH failed to present evidence establishing that the forklift was operated under conditions of stress beyond the manufacturer’s recommendations. AR 680-81. Honjio testified that operating a forklift off-center could create stress and tip the forklift over. AR 681. Because there were no witnesses to the accident, his testimony was speculation. AR 681.

In contrast, Turnham had observed the forklift on many occasions. AR 681. He testified that the center of gravity would not cause the forklift to flip unless someone drove it extremely far sideways. AR 681. Heavier equipment had driven on the same road with no problem. AR 681. Turnham did not observe part of the road collapse when he viewed the accident site. AR 681.

As to load, there was no evidence that the forklift was carrying a load. AR 681. Honjio testified there was no stress on the forklift from a load. AR 681.

As to environmental conditions, DOSH alleged that the environmental condition was the road on which the forklift was driven collapsed due to it being driven on soft edges of the road that could collapse contrary to the manufacturer’s recommendations. AR 681. Honjio conceded that this kind of rough terrain forklift is usually driven on rough terrain like dirt roads. AR 681. He testified the manual said to stay away from soft edges that could collapse under the forklift. AR 682. DOSH referred to, but did not produce, the manufacturer’s manual. AR 681. As a result, Honjio’s testimony regarding the manufacturer’s recommendations cannot be fully credited. AR 681.

Because the term “soft edges” is ambiguous, DOSH had the burden of showing that the correct interpretation is one Atkinson violated. AR 682. Henderson told Honjio that there had been no complaints about the access road. AR 682. Hicks told Honjio that there were no limitations on what equipment to use on the access road. AR 682.

Honjio did not testify to evidence of collapse due to soft soil. AR 682. The average soil compaction was 91%, but nothing links that to the manufacturer’s recommendation to avoid soft soil when driving the forklift. AR 682. Accordingly, DOSH failed to establish that the forklift was operated under conditions contrary to the manufacturer’s recommendations. AR 682.

On November 19, 2021, DOSH filed a petition for reconsideration for the Board to reverse the ALJ’s decision on Citation 2. AR 693, 701. DOSH argued that it had established that Atkinson operated the forklift contrary to manufacturer recommendations. AR 697. The fatal accident occurred when the forklift was driven on the soft shoulder of the road, which collapsed and tipped the forklift into the ravine. AR 697. Honjio and Turnham had concurred that the edges beyond the width of the access road were soft. AR 699. They agreed that driving on that soft edge could cause the forklift to tip over. AR 699.

On July 13, 2022, the Board issued a decision reversing the ALJ’s decision for Citation 2. AR 715-25.

To prevail, DOSH needed to demonstrate that (1) the citation concerns a piece of machinery or equipment; (2) the machinery was used or operated by Employer; and (3) the use of the machinery was contrary to the manufacturer’s recommendations concerning a speed, stress, load, or environmental condition. AR 717. The first two elements were not at issue because the case concerns the operation of Atkinson’s forklift operated by its employee Hoyt. AR 717.

As a threshold issue, the third element requires competent evidence as to the contents of the manufacturer’s recommendations. AR 717. Honjio read from the manufacturer’s manual, but the ALJ’s decision chose not to fully credit this testimony due to DOSH’s failure to move the document into evidence. AR 717-19.

There is no doubt that DOSH erred in not moving the manual into evidence. AR 719. However, an administrative entity is not required to follow the rules of evidence. AR 719. Section 6612 states that an order or decision shall not be invalidated based on the admission of evidence not admissible under the common law or statutory rules of evidence and procedure. AR 719. The Board may rely on any relevant evidence that is of the sort on which responsible persons are accustomed to rely in the conduct of serious affairs. AR 719. Honjio read from what Atkinson had specifically identified as the “Operator’s Manual” for the forklift. AR 719-20. Atkinson did not contemporaneously object to Honjio reading the manual. AR 720. The Board therefore credited his testimony as to the manual’s contents. AR 720.

Because DOSH’s petition focused on environmental conditions and not speeds, stresses, or loads, the Board only addressed whether Atkinson operated the forklift in environmental conditions contrary to those in the manual. AR 720. The Board relied on the plain language of the 8 CCR section 3328(a)(2). AR 720. The word “environmental” refers to circumstances, objects, or conditions by which one is surrounded. AR 720. The word “condition” refers to a state of being or attendant circumstances. AR 720. The plain meaning of the regulation therefore focuses on one’s surroundings or surrounding circumstances. AR 720.

The Board found merit in DOSH’s argument that Atkinson’s operation of the forklift near the access road’s soft edges violates the manual’s order to stay away from soft edges that could collapse. AR 720-21. According to Honjio, the manual states: “Stay away from soft edges that could collapse under the forklift.” AR 720. This identified the road’s soft edges as the relevant environmental condition. AR 720.

The testimony and photographic evidence showed that the soft edge bordering at least one side of the access road could collapse. AR 721. Although much of the road had been compacted, the edge of the road near the ravine was not at all compacted. AR 721. Honjio testified that soil above the forklift’s location after the accident was loose and dry, like a spoils pile. AR 721. The road was not symmetrical, and it had appeared that portions of the road had previously collapsed or sloughed off. AR 721. The photographs support this, and even Turnham described the soil next to the road as soft soil. AR 721. The condition of the soil on the slope down to the ravine also was loose, dry, and sleep. AR 721. Thus, the access road was bordered on one side by soft edges that could collapse in the area above where the forklift came to rest. AR 721.

The question becomes whether Hoyt operated the forklift too closely to that soft edge. AR 721. The parties disputed whether the edge of the road collapsed from the forklift’s weight. AR 721. The Board did not need to address this issue because actual collapse of the road was not a prerequisite to a violation. AR 721.

The manufacturer’s recommendation was to stay away from a soft edge that could collapse. AR 721. For two reasons, the evidence shows that the forklift failed to stay away from the soft edge of the access road that could collapse. AR 721. First, the location of the forklift at the bottom of the ravine below the soft edges of the road demonstrates that it came to close to a soft edge. Even assuming that the accident was not caused by a collapse of soil, it could not have occurred if there was adequate distance between the forklift and the edge. AR 721. Second, the violation would have been established even if the accident had not occurred. AR 722. It was virtually impossible for Hoyt to stay away from the soft edges of the road. AR 722. The forklift had only 30 inches of free space on its sides at the narrowest point of the access road. AR 722. The forklift weighed over 30,000 pounds and fell to the bottom of the ravine below the narrowest point of the road. AR 722. At that point, the forklift driver could not reasonably stay away from the soft edges that could collapse. AR 722.

DOSH had established that the use of the forklift was under environmental conditions contrary to the manufacturer’s recommendations in that it failed to stay away from soft edges that could collapse. AR 722. All elements of the violation had been established and Citation 2 was affirmed. AR 722.

A rebuttable presumption of a Serious violation exists if there is a realistic possibility that death or Serious physical harm could result from the hazard created by that violation. AR 722. An operator’s manual provides evidence of a realistic possibility that deviation from it will result in serious physical harm or death. AR 722. The parties also stipulated that Hoyt died as a result of the accident. AR 722-23. This was sufficient to establish a rebuttable presumption of a Serious violation. AR 723.

To rebut the presumption, Atkinson needed to show pursuant to section 6432(c) that it took all steps a reasonable and responsible employer in like circumstances should be expected to take before the violation occurred, taking into consideration the severity of the harm that could be expected to occur and the likelihood of that harm occurring in connection with the work activity during which the violation occurred. AR 723. It also needed to show that it took effective action to eliminate employee exposure to the hazard created by the violation once discovered. AR 723.

The widths of the access road and of the forklift were in plain view. AR 723. It should have been clear that the forklift could not keep away from the soft edges. AR 723. It was also perceivable that those edges could collapse. AR 723. The Board has long held that hazardous conditions in plain view constitute Serious violations because the employer could detect them through reasonable diligence. AR 723. The Board affirmed Citation 2’s classification as a Serious violation. AR 723.

DOSH classified the citation as Accident-Related. AR 724. A showing of a causal nexus between the violation and a serious injury is required to classify the citation as Accident-Related. AR 724. The violation need not be the only cause of the accident, but DOSH must show that the violation more likely than not was a cause of the injury. AR 724.

The parties do not dispute that the forklift fell into the ravine. AR 724. The forklift would not have been found at the bottom of the ravine unless it was operated close to a soft edge that could collapse. AR 724. Regardless of whether the edge collapsed, the accident would not have occurred had adequate distance been maintained between the forklift and the edge. AR 724. As such, the violation was a cause of the injury and therefore Accident-Related. AR 724.

Atkinson invoked an unforeseeable employee act as a defense. AR 725. In addition to the violation being unforeseeable, an employer must show that it (1) did not and could not have known of the potential danger to employees, (2) exercised adequate supervision to ensure safety; and (3) ensured employee compliance with its safety rules. AR 724.

Atkinson did not show that it could not have known of the potential danger to employees or that the violation was unforeseeable. AR 724. The condition of the road and the widths of the road and forklift were in plain view. AR 724. Atkinson could have known of the hazard with the exercise of reasonable diligence. AR 724. The violation was foreseeable, and the defense fails. AR 724.

Because the accident was Serious, the base penalty was $18,000. AR 724. Because it was accident-related, Atkinson could only have the penalty reduced based on its business size. AR 724. Atkinson had over 100 employees and does not qualify for reduction. AR 724. $18,000 was the appropriate penalty for Citation 2. AR 725.

Petitioner Atkinson contends that the Board’s decision is not supported by substantial evidence.

1. The Finding of a 8 CCR Section 3328(a)(2) Violation Is Supported by Substantial Evidence

Citation 2 alleged a Serious, Accident-Related violation of 8 CCR section 3328(a)(2), which provides: “(a) All machinery and equipment...(2) shall not be used or operated under conditions of speeds, stresses, loads, or environmental conditions that are contrary to the manufacturer’s recommendations or, where such recommendations are not available, the engineered design.”

A violation of 8 CCR section 3328(a)(2) requires proof of three elements: (1) the citation concerns a piece of machinery or equipment; (2) the machinery was used or operated by the employer; and (3) the use of the machinery was contrary to the manufacturer’s recommendations concerning a speed, stress, load or environmental condition. See AR 716-17. The Board correctly noted that there was no dispute regarding the first two elements. The citation concerns a piece of machinery or equipment (the forklift) that was operated by Atkinson’s employee. The dispute pertained to the third element: whether the use of the machinery was “under…environmental conditions that are contrary to the manufacturer’s recommendations.”

The Board found that, while DOSH failed to offer the manufacturer’s manual into evidence, Honjio read from the manual without objection and the Board could rely on his testimony for its content. AR 720. The Board also found that the term “environmental conditions” was undefined and relied on its plain dictionary meaning. The Board concluded that the word “environmental” refers to circumstances, objects, or conditions by which one is surrounded. AR 720. The word “condition” refers to a state of being or attendant circumstances. AR 720. The plain meaning of the regulation therefore focuses on one’s surroundings or surrounding circumstances. AR 720. Finally, the Board concluded that the relevant environmental condition is “the alleged soft edges that could collapse”. AR 720. Atkinson’s opening brief does not dispute any of these conclusions by the Board.

In reply, Atkinson argues for the first time that DOSH provided no evidence that the soft road edge is an environmental condition. Atkinson contends that it has not waived this issue because its opening brief focuses on the arguments raised by the Board in its decision. Reply at 9. This argument is spurious. New evidence/issues raised for the first time in a reply brief are not properly presented to a trial court and may be disregarded. Regency Outdoor Advertising v. Carolina Lances, Inc., (1995) 31 Cal.App.4th 1323, 1333.

Atkinson also argues in reply that the ALJ found the term “soft edges” to be ambiguous. Where language in a manufacturer’s recommendation is ambiguous, DOSH has the burden of showing that its interpretation is correct. Washington Ornamental Iron Works dba Washington Iron Works, Cal/OSHA 1226666, Decision After Reconsideration (Dec. 28, 2020). DOSH did not satisfy its burden in proving that its interpretation of the term “soft edges” is correct. Reply at 10.

Although Atkinson mentioned the ambiguity of “soft edges” in its opening brief (Pet. Op. Br. at 10), it is unclear what Atkinson contends. Neither the ALJ nor Atkinson ever stated that the term had any different meaning than its ordinary dictionary meaning. Both simply suggested that the road did not have soft edges because Henderson stated that there had been no complaints, Hicks stated there were no limits on the vehicles that could use the road, and the road was compacted. See AR 682. This is not a dispute about what “soft edges” means.

The Board found that the testimony and photographic evidence showed that the soft edge bordering at the side of the access road could collapse. AR 721. Although much of the road had been compacted, the edge of the road near the ravine was not at all compacted. AR 721. Honjio testified that soil above the forklift’s location after the accident was loose and dry, like a spoils pile. AR 721. The road was not symmetrical, and it had appeared that portions of the road had previously collapsed or sloughed off. AR 721. Even Turnham described the soil next to the road as soft soil. AR 721. Thus, the access road was bordered on one side by soft edges that could collapse in the area above where the forklift came to rest. AR 721.

This conclusion is supported by substantial evidence. The pictures and Honjio’s measurements demonstrate that the edge of the road near the ravine did not have a uniform width. AR 174-75, 417 (Ex. 7-12), 437 (Ex. 7-22), 441 (Ex. 7-24), 447 (Ex. 7-27). The road varied in width from 10 ¾ to 12 feet but was narrowest directly above the location where the forklift came to rest in the ravine. AR 175, 202, 234. Honjio testified that the soil at the edge was loose and appeared to be collapsing in places. AR 213-15 (“This is right above the area where the forklift was in the ravine…”), 220-21 (“I’m on the edge of the road. My foot is on the edge…”), 437 (Ex. 7-22). The soil at the edge was dry and loose, like a spoils pile. AR 220-21. “[I]t appeared that…the side of the road closest to the ravine collapsed…I mean, the –the loose dirt was sloughed off and it looks like parts of the road were taken out—that chunks were taken out. It wasn’t totally…a symmetrical width of the road.” AR 222, 227, 437 (Ex. 7-22) 441 (Ex. 7-24). Turnham, Atkinson’s heavy equipment mechanic, corroborated Honjio’s statements. Turnham admitted that not all of the road’s edge was compacted and the soil next to the road was “soft soil.” AR 639, 637, 471 (Ex. BB). There is substantial evidence that the access road was narrow at the point of the forklift’s entry into the ravine and had soft edges that could collapse.

Atkinson argues that the ALJ’s decision, not the Board’s decision, was correct. The ALJ relied on Honjio’s witness interviews about the access road’s wide, safe, well-compacted condition. Hicks, an Atkinson foreman, indicated that there is no limitation on what equipment could be used on the access road. The road was adequately compacted and there were no indications of collapse at any point. Turnham testified that he could not see a section of the road that collapsed or gave way. AR 596. Henderson, Atkinson’s grading foreman, indicated that there had been no complaints about the access road. Turnham testified that that he saw the subject forklift traveling that access road numerous times without an issue. AR 598. He had seen an 80-ton rough terrain Link-Belt Crane travel the access road without any issues, which is wider, taller and much heavier than the forklift Hoyt was driving. AR 599. The Crane is approximately two feet wider than the forklift and weighs approximately 60,000 pounds more. AR 598-601. Pet. Op. Br. at 9-10.

Atkinson adds that DOSH witness Honjio admitted that he did not see anything in the forklift’s manual that a rough terrain forklift cannot drive on a compacted dirt road. AR 279-80. He affirmed that rough terrain forklifts are made to be driven on rough terrain, which includes dirt roads. AR 280. The rough-terrain forklift at issue also can drive on steeply sloped roads. AR 183-84. The access road was not too steep for the forklift as its slope measured a modest 4 and 7/8 inches per four to six feet. AR 188-89. Honjio confirmed that the forklift had at least 15 inches of road on each side. AR 234-35. Finally, and perhaps most importantly, Honjio confirmed the observation of Atkinson’s employees that there was no evidence that the access road collapsed at the edges. AR 283. Because there was no evidence that the roadway collapsed or that it was operated contrary to the manufacturer’s recommendations, the ALJ correctly found that the Division had not met its burden for Citation 2. Pet. Op. Br. at 10.

According to Atkinson, the Board merely speculated that the road was not able to support the forklift and that the edges collapsed. The evidence adduced showed that the roadway was more than adequate to support the forklift's weight and width, and that the roadway edges did not collapse. Honjio admitted that there is no indication that the roadway gave way. AR 182-83, 203. As such, DOSH did not prove that Atkinson failed to operate the forklift according to the manufacturer’s recommendations in violation of 8 CCR section 3328(a). Pet. Op. Br. at 12-13.

Atkinson is wrong. There is no need to resolve the parties’ dispute over whether the soft road edge collapsed from the forklift’s weight because the Board found it unnecessary to do so. AR 721. DOSH was only required to demonstrate that the forklift operator drove too near an edge that could collapse, not that the edge did collapse. Atkinson’s opening brief does not dispute the Board’s finding that the soft edge could collapse.

In reply, Atkinson tries to contest that the soft edge could collapse. It argues that all the evidence proved that the road was adequately compacted and there was no evidence that the road did collapse. Henderson, Atkinson’s grading foreman, indicated that there had been no complaints about the access road. There was no visual or prior knowledge of any unsafe condition or caving of the fully compacted roadway. Hicks, another Atkinson foreman, indicated that there is no limitation on what equipment can be used on the access road. While Honjio climbed down the slope of the ravine to examine the forklift and he described the soil as “loose and very dry, and it was quite steep”, this testimony is irrelevant as the forklift driver was not driving in the ravine. The Board claims that Honjio testified about the soil at the edge of the road being “soft soil.” But Honjio’s testimony also confirmed that there was no evidence that the access road collapsed at the edges. AR 283. The Board’s opposition simply reiterates the Board decision’s assumption that, because the forklift ended up in the ravine, Atkinson must have violated a manufacturer’s recommendation to “stay away from soft edges that could collapse under the forklift.” [5]

Again, Atkinson cannot contest that the soft edge could collapse for the first time in reply. See Regency Outdoor Advertising v. Carolina Lances, Inc., supra, 31 Cal.App.4th at 1333. In any event, the overwhelming evidence is that the edges of the road were soft and capable of collapsing. The photographs alone show as much.[6]

In addition to finding that the soft road edge could collapse, the Board found that Hoyt operated the forklift too closely to that soft edge. AR 721. The manufacturer’s recommendation was to stay away from a soft edge that could collapse, and the evidence showed that the forklift failed to do so. AR 721. The fact that the forklift was found at the bottom of the ravine below the soft edges of the road demonstrates that it came too close to the soft edge. AR 721.

The Board further found that it was virtually impossible for Hoyt to stay away from the soft edge of the road. AR 722. The forklift had only 30 inches of free space on its sides at the narrowest point of the access road. AR 722. At the narrowest point of the road where the forklift fell, the forklift driver could not reasonably stay away from the soft edges that could collapse. AR 722. DOSH had established that the use of the forklift was under environmental conditions contrary to the manufacturer’s recommendations in that it failed to stay away from soft edges that could collapse. AR 722. All elements of the violation had been established and Citation 2 was affirmed. AR 722.

This conclusion is supported by substantial evidence. This was a matter for which no direct evidence of the accident’s mechanism was required. The forklift would not have been found at the bottom of the ravine unless it came too near a soft edge. Hoyt did not, and could not, follow the manufacturer’s recommendation to “[s]tay away from soft edges that could collapse under the forklift.” Honjio testified that the width of the access road was at its narrowest just above where the forklift came to rest in the ravine, measuring at approximately 129 inches. AR 172, 175, 202, 230-35, 275, 295. The forklift itself was 99 inches wide, meaning that it only had 30 inches of free space on each side, or 15 inches per side at the narrowest point. AR 179-180, 234-35. The forklift also weighed more than 30,000 pounds, as much as multiple pickup trucks. AR 260-61. Given these facts, Hoyt could not realistically stay away from the soft edge of the road. As the Board’s opposition argues (Opp. at 17), it does not matter whether the road collapsed, only that Hoyt drove too near an edge that could collapse and it was virtually impossible for Hoyt to do so. The fact that forklifts and other vehicles had traveled the same route without accident does not undermine the conclusion that Hoyt could not avoid traveling too near an edge that could collapse.

In reply, Atkinson argues that there is no evidence that Atkinson acted contrary to the manufacturer’s recommendation when Hoyt drove the forklift on the well-compacted access road. There was no evidence from the fact that the forklift had 15 inches of road on each side was insufficient. Reply at 9. The Board claims that the forklift could not have been found at the bottom of the ravine unless it came too near a soft edge that had the possibility of collapse. There was no evidence that Hoyt drove too close to an edge of the road that could collapse. Reply at 11.

Again, this is a new issue raised for the first time in reply and is waived. See Regency Outdoor Advertising v. Carolina Lances, Inc., supra, 31 Cal.App.4th at 1333. In any event, no witness needed to opine that a 15-inch gap is insufficient for a heavy forklift traveling on a compacted access road with a soft edge and a steep ravine. The issue is whether Hoyt had room to stay away from the soft edge and the leeway of only 15 inches is not sufficient to do so as a matter of law.

2. The Board’s Finding that the Violation Was Serious Is Supported by Substantial Evidence

The Board noted that a rebuttable presumption of a Serious violation exists if there is a realistic possibility that death or Serious physical harm could result from the hazard created by that violation. AR 722. An operator’s manual provides evidence of a realistic possibility that deviation from it will result in serious physical harm or death. AR 722. The parties also stipulated that Hoyt died from the accident. AR 722-23. This was sufficient to establish a rebuttable presumption of a Serious violation. AR 723.

Atkinson argues that the Board reached this conclusion in error. Under section 6432, it is insufficient for DOSH to show a violation of 8 CCR section 3328(a)(2) to meet its burden. Rather, DOSH had an obligation to present evidence demonstrating a “realistic possibility that death or serious physical harm could result from the actual hazard created by the violation.” MDB Management Inc., Cal/OSHA App. 14-2373, DAR (Apr. 25, 2016). The term “realistic possibility” means that DOSH’s demonstration must be within the bounds of reason and not purely speculative. Langer Farms, LLC, Cal/OSHA App. 13-0231, DAR (Apr. 24, 2015). DOSH cannot meet its burden without some satisfactory evidence demonstrating the types of injuries that could result and the possibility of those injuries occurring. MDB Management Inc., Cal/OSHA App. 14-2373, DAR (Apr. 25, 2016). Pet. Op. Br. at 13; Reply at 12-13.

Atkinson contends that there was no realistic possibility of death or serious physical harm from an actual hazard rather than pure speculation. The Board merely speculated that the roadway was not able to support the forklift and that the edge collapsed without the support of any evidence. The evidence showed that the roadway was more than adequate to support the forklift’s weight and width and that the roadway edge did not collapse. Pet. Op. Br. at 13-14.

The Board’s opposition rebuts Atkinson’s argument. Honjio testified that he is current on all DOSH-mandated training. AR 129. Therefore, he is competent as a matter of law to establish each element of a serious violation. §6432(g). Honjio classified the citation as Serious because the accident caused Hoyt’s death. AR 264-65. Honjio also read an excerpt from the manufacturer’s manual that the failure to follow the rules therein could lead to death or serious injury: “Operate the forklift for maximized stability. Unstable forklifts can tip over resulting in death, serious injury, or property damage.” AR 252-56. This created a presumption that the violation was Serious.

To overcome this presumption, Atkinson was required to demonstrate that it “did not know and could not, with the exercise of reasonable diligence, have known of the presence of the violation.” §6432(c). Atkinson did not, and could not, make this showing. The narrow width of the access road and the forklift’s narrow 15 inches per side of leeway were in plain view. The soft road edges that could collapse were obvious. Given the dimensions of the road and the forklift, it should have been clear that the forklift could not avoid the soft road edges that could collapse. An employer cannot rebut the presumption when the hazardous condition is in plain view. Home Depot USA, Inc., Cal/OSHA App. 15-2298, Decision After Reconsideration (May 16, 2017).

The Board’s decision that the violation was Serious is supported by substantial evidence.

3. The Board’s Finding That the Violation Was Accident-Related Is Supported by Substantial Evidence

The Board noted that a showing of a causal nexus between the violation and a serious injury is required to classify the citation as Accident-Related. AR 724. The violation need not be the only cause of the accident, but DOSH must show that the violation more likely than not was a cause of the injury. AR 724.

As the Board’s opposition argues (Opp. at 20), Atkinson does not contest the Accident-Related classification.[7]

4. Atkinson Did Not Show That the Accident Was Unforeseeable

The Board noted that Atkinson invoked an unforeseeable employee act as a defense. AR 725. In addition to the violation being unforeseeable, an employer must show that it (1) did not and could not have known of the potential danger to employees, (2) exercised adequate supervision to ensure safety; and (3) ensured employee compliance with its safety rules. AR 724.

The Board found that Atkinson did not show that it could not have known of the potential danger to employees or that the violation was unforeseeable. AR 724. The condition of the road and the widths of the road and forklift were in plain view. AR 724. Atkinson could have known of the hazard with the exercise of reasonable diligence. AR 724. The violation was foreseeable, and the defense fails. AR 724.

Atkinson argues that the Board’s decision inappropriately shifts the burden from DOSH to it.. The Board claims that Atkinson did not establish the accident was unforeseeable yet did not hear any of the evidence at the hearing. The ALJ found that there was no realistic possibility of death or serious physical harm because the violation was unforeseeable. A violation “is deemed unforeseeable, therefore not punishable” if the following four criteria exist: (1) the employer ensured its employees’ compliance with its safety rules; (2) the employer did not know, or could not have known, of the potential danger to employees; (3) the employer exercised supervision adequate to assure safety; and (4) the violation was unforeseeable. Gaehwiler v. Occupational Safety & Health Appeals Bd., 141 Cal. App. 3d 1041, 1045 (1983); Newbury Electric Co., Ameron Inc., Pole Products Div., Cal/OSHA App. 77-677, Decision After Reconsideration (Feb. 26, 1980).) Pet. Op. Br. at 14.

Atkinson argues that Hoyt’s death was unforeseeable. The company ensured that its employees’ compliance with safety rules in the safe operation of equipment. AR 332. There was no work that was needed to be performed in the ravine. AR 334. Atkinson did not and could not have known that an employee would drive off the access road. Atkinson never received any complaints about safety of the access road, and that road had been there throughout the project. AR 48. The soil on the access road was well compacted and no one ever complained about the road being too narrow. AR 48. Hoyt was a certified forklift operator who was capable of driving the forklift through rough terrain. AR 48. There was no way to know why the forklift left the roadway. Pet. Op. Br. at 14-15; Reply at 13-14.

The Board did not improperly shift the burden to Atkinson. The lack of foreseeability is an affirmative defense which Atkinson had the burden of proof. The facts relied upon by Atkinson do not undermine the plain nature of the hazard. The access road was compacted but had soft edges that could give way. The road was narrow and only allowed the forklift 15 inches of leeway. The hazard was obvious and the fact that no one had complained about the road and no previous accidents had occurred does not entirely negate the risk or make the accident unforeseeable. Atkinson did not meet its burden for this affirmative defense.

The Petition is denied. The Board’s counsel is ordered to prepare a proposed judgment, serve it on Atkinson’s counsel for approval as to form, wait ten days after service for any objections, meet and confer if there are objections, and then submit the proposed judgment along with a declaration stating the existence/non-existence of any unresolved objections. An OSC re: judgment is set for December 12, 2023 at 1:30 p.m.

[1] Real Party-in-Interest Department of Industrial Relations, Division of Occupational Safety and Health (“DOSH”) joins the Board’s opposition. A joinder is not statutorily authorized and is merely a cheerleading effort. See Haah v. Kim, (2009) 175 Cal.App.4^th 45, 51-52 (quoting, but not necessarily approving, trial court). At a minimum, a joinder to an opposition must be timely filed 9 court days before the hearing and separately supported by memorandum. DOSH’s joinder was timely filed and supported by a short memorandum. Therefore, it can be considered.

[2] Atkinson was granted leave to file a 13-page brief in order to address oppositions from both the Board and DOSH. Atkinson filed a 12-page reply even though DOSH did not file a substantive opposition. Although this is a violation of the order, the court has exercised its discretion to read and consider the reply. Atkinson also failed to include any of the ALJ and Board decisions in the Trial Notebook in violation of the court’s order at the trial setting conference. Its counsel is admonished to follow the court’s directions in all future writ proceedings.

[3] The Board requests judicial notice of its decisions in (1) Barrett Business Services, Inc., (2016) Cal/OSHA App. 315526582 (RJN Ex. A), (2) Home Depot USA, Inc., (2017) Cal/OSHA App. 15-2298 (RJN Ex. B), and (3) United Parcel Service, (2018) Cal/OSHA App. 1158285 (RJN Ex. C). The requests are granted. Evid. Code §452(c).

[4] All remaining statutory references are to the Labor Code unless otherwise indicated.

[5] Atkinson is wrong that Honjio did not testify that there was evidence of road collapse. He did. AR 222, 227, 437 (Ex. 7-22). The soil on the steep slope was loose and dry like a spoils pile type of soil. AR 199, 221. Because the width of the road was asymmetrical and the dirt was sloughed off, it appeared that the side of the road collapsed from the weight of the forklift and fell into the ravine. AR 222, 227, 441. Ex. 7-22 shows Honjio measuring the access road right above where the forklift landed, his foot on the tape measure to hold it flat on the edge of the road. AR 213-14, 220, 437. Because the tape measure does not bend left or right, it is a straight edge that shows where the road collapsed just above where the forklift landed. AR 214. There was no indication that the road gave way within the 129-inch distance from the wall out where the forklift wheels would be traveling. AR 283. As the Board’s opposition argues, Honjio opined that the road collapsed from the weight of the forklift, leaving the narrowest 129-inch distance as a result. Opp. at 18.

[6] In reply, Atkinson adds that the Board’s opposition gives an incomplete accounting of several witnesses’ testimony. First, the Board claims that Turnham agreed that the forklift left the roadway and fell into a ravine. But Turnham also testified that he did not see any collapsed roadway at the accident site. AR 595-96. Turnham had been on that roadway project for two years, and in that time, he traveled up and down that roadway for various purposes at various times. AR 597. He had driven his F-550 utility truck with a crane and welder, oilers, and a Peterbilt three-axle truck down that access road. AR 598. He had also seen other vehicles driving up and down that road during his two years on the project, including pickup trucks, oilers, forklifts, manlifts, and the 80-ton rough terrain Link-Belt Crane. AR 598. Reply at 7-8.

Second, the Board claims that when Hansen, Atkinson’s Safety Manager, called DOSH on July 20, 2018 to report Hoyt’s accident, he said that Hoyt was operating an “extendable forklift and got close to the edge or ground gave out and the forklift rolled and [he] was crushed underneath.” AR 458, 565-66 . This disregards the testimony of Dosh Associate Safety Engineer Nilawat, who testified that the description he wrote on the C-36 forms is not the conclusion of what caused the accident. AR 305. Reply at 8.

Third, the Board focuses on Honjio’s testimony that he climbed down the slope of the ravine to examine the forklift and that the soil was “very loose and very dry, and it was quite steep.” AR 199. However, the forklift was not driving down the slope into the ravine, so it is irrelevant what the soil was like on the slope of the ravine. AR 632. Reply at 8.

These references to Turnham’s and Honjio’s evidence do not detract from the substantial evidence of a violation and neither the Board nor the court relies on what Hansen said to Nilawat on July 20, 2018 for conclusions about Atkinson’s violation.

[7] In reply, Atkinson merely argues that the violation was not Accident-Related because it was not Serious. Reply at 15.

4. Atkinson Did Not Show That the Accident Was Unforeseeable