Vacate

UR-2023-JL680-0006-ADOSH · Arizona Division of Occupational Safety and Health · 2024-10-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

DIVISION OF OCCUPATIONAL SAFETY AND HEALTH OF THE INDUSTRIAL COMMISSION OF ARIZONA,

Complainant

v.

DC CRANE LLC,

Respondent.

No. UR-2023-JL680-0006-ADOSH

FINDINGS & ORDER APPROVING SETTLEMENT AGREEMENT

On July 3, 2023, the Division of Occupational Safety and Health of the Industrial Commission of Arizona (“Complainant” or “Division”) conducted an inspection of Respondent DC Crane LLC’s (“Respondent”) worksite located at 2945 n. Flowing Wells, Tucson, Arizona 85706, Inspection No. UR-2023-JL680-0006 resulting in the issuance of a Citation and Notification of Penalty to Respondent on December 1, 2023.

WHEREAS, Respondent timely filed a Notice of Contest with respect to the above-mentioned citation, and the Division and Respondent now desire to settle this matter without the necessity of a formal hearing, both parties agree that it is in their respective best interests to settle this matter without going through the procedures, time and expense associated with litigating through a formal hearing.

FINDINGS AND CONCLUSIONS

NOW, THEREFORE, the parties agree to settle this matter as follows:

On October 4, 2024, the parties filed a Settlement Agreement resolving all issues and disputes involved in this matter. The Settlement Agreement appears to be consistent with the provisions and objectives of the Arizona Occupational Safety and Health Act. Accordingly, pursuant to A.A.C. R20-5-827 of the Occupational Safety and Health Rules of Procedure Before the Industrial Commission of Arizona, said Settlement Agreement is by this reference adopted herein and made a part hereof.

The Settlement Agreement is in furtherance of the purpose of the Arizona Occupational Safety and Health Act of 1972 and represents a full and final determination of this matter.

ORDER

IT IS HEREBY ORDERED that Citation No. 1, Item No. 1 shall be reclassified from “Willful-Serious” to “Serious,” and the corresponding penalty shall be reduced from $26,786.00 to $0.00 (zero).

IT IS FURTHER ORDERED that Citation No. 1, Item No. 2 will be vacated in its entirety.

IT IS FURTHER ORDERED that Citation No. 2, Item No. 1 shall be reclassified from “Serious” to “Non Serious,” and the corresponding penalty shall be reduced from $2,679.00 to $0.00 (zero).

IT IS FURTHER ORDERED that the violation cited in Citation No. 2, Item No. 2a shall remain as “Serious,” and the corresponding penalty shall be reduced from $2,679.00 to $0.00 (zero).

IT IS FURTHER ORDERED that the violation cited in Citation No. 2, Item No. 2b shall remain as written.

IT IS FURTHER ORDERED that Citation No. 3, Item No. 1 shall remain as written.

IT IS FURTHER ORDERED that, within thirty (30) days of this signed Findings & Order Approving Settlement Agreement, Respondent shall:

(a) Pay the amount of $20,000.00 to the decedent’s widow; and

(b) Prior to being placed back in service, the crane involved in the incident will be inspected by a third party of Respondent’s choosing and repaired as needed.

IT IS FURTHER ORDERED that the legal effect of A.A.C. R20-5-817 is waived.

NOTICE

Any party dissatisfied with this Decision may request review to the Review Board by filing a written request with the Administrative Law Judge Division of the Industrial Commission within fifteen (15) days after service of this Decision as provided by Arizona Revised Statutes, §§ 23-421 C and 23-423 A and B. If no such request is made within the time provided, this Decision becomes final.

By: Tammy L. Eigenheer

The Honorable Tammy L. Eigenheer

Administrative Law Judge

DATED IN PHOENIX, ARIZONA, THIS 9th DAY OF OCTOBER, 2024.

BEFORE THE OFFICE OF ADMINISTRATIVE HEARINGS

CERTIFICATE OF SERVICE

The attached FINDINGS & ORDER APPROVING SETTLEMENT AGREEMENT was placed in, and is now a part of, the Office of Administrative Hearings file and was served on the parties named below via mail/email/facsimile on October 9, 2024:

Brian A. Hudson, Director

Industrial Commission of Arizona

Division of Occupational Safety and Health

800 W. Washington Street, Suite 203

Phoenix, AZ 85007

[email redacted]

Robert Irani, Esq.

Legal Division

Industrial Commission of Arizona

800 W. Washington Street, Suite 303

Phoenix, AZ 85007

[email redacted]

Charles P. Keller, Esq.

Snell & Wilmer L.L.P.

One East Washington Street Suite 2700 Phoenix, Arizona 85004-2556

[email redacted]

By: OAH Staff