Wright Touch Landscaping & Heavy Equipment, Inc.

Read the official release (oshrc.gov)

Plain-English summary

Wright Touch Landscaping performed tree-trimming work using an aerial lift and from the roof of a Miami residence. A worker was hospitalized after sustaining a head injury at the worksite and later died without leaving the hospital. The judge found that Wright Touch employed the worker because the company owner arranged and directed the job, supplied tools and transportation, and paid him from the job proceeds. Serious aerial-lift and roof fall-protection items were affirmed because the owner operated the lift and knew the worker used neither a harness nor other fall protection. An other-than-serious item was affirmed because the company did not report the work-related hospitalization to OSHA within 24 hours. The Secretary withdrew an aerial-lift operator-training item, and the remaining penalties totaled $6,844.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.67(c)(2)(ii); 29 C.F.R. § 1910.67(c)(2)(v); 29 C.F.R. § 1910.132(a); 29 C.F.R. § 1904.39(a)(2)
• Outcome: Two serious fall-protection and one reporting item affirmed; training item withdrawn; $6,844 total penalties assessed.
• Key point: The right to direct the work and control its means can establish an employment relationship even when the employer disputes that status.

Full text (OSHRC public release)

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� SEQ CHAPTER \h \r 1 United States of America

OCCUPATIONAL
SAFETY AND HEALTH REVIEW COMMISSION

1120
20 th Street, N.W.

Washington,
D.C. � 20036

SECRETARY OF LABOR,

��������������� Complainant,

�����������
v.

���� OSHRC
Docket No. 17-0070

WRIGHT TOUCH LANDSCAPING & HEAVY
EQUIPMENT, INC., �

��������������� Respondent.

Appearances: ������ Nicholas C. Geale ,
Acting Solicitor of Labor

���������������������������� Stanley E. Keen, Regional Solicitor

���������������������������� Karen E. Mock, Counsel

���������������������������� Monica R. Moukalif ,
Trial Attorney

���������������������������� U.S. Department of Labor, Office of the
Solicitor, Atlanta, Georgia

���������������������������� For the Complainant

����������������������������

���������������� ����������� Princess
Wright, Owner

���������������������������� Wright Touch Landscaping & Heavy
Equipment, Inc., Miami, Florida

���������������������������� For the Respondent

Before: ���������������� Covette Rooney

���������������������������� Chief Administrative Law Judge

DECISION AND ORDER

On
June 28, 2016, a tree-trimming worker was hospitalized from an incident on a residential
worksite in Miami, Florida. � The worker
did not leave the hospital and eventually passed away. � After an investigation, the Occupational
Safety and Health Administration (OSHA) issued a citation to Wright Touch
Landscaping & Heavy Equipment, Inc. (Wright Touch or Respondent), alleging
violations of the Occupational Safety and Health Act of 1970, 29 U.S.C.
�� 651-678 (the OSH Act) and proposing a total penalty of $9,516. � Respondent filed a timely notice of contest,
bringing this matter before the Occupational Safety and Health Review
Commission (Commission). � The parties
filed pre-hearing pleadings, and a hearing was scheduled in Miami, Florida on October 12,
2017. � Respondent did not appear. � The Secretary presented his case at the
hearing. � The Secretary filed a
post-hearing brief, Respondent did not file a post-hearing brief. � For the reasons set forth below, the
citations and proposed penalties that remain at issue are affirmed. [1]

JURISDICTION AND COVERAGE

The record establishes that Respondent
filed a timely notice of contest and that, as of the date of the alleged
violation, it was an employer engaged in business affecting commerce within the
meaning of section 3(3) and 3(5) of the Act. [2] � Respondent owned and operated, in Florida,
equipment that was manufactured in Kentucky. �
(Tr. at 36-38; Ex. C-7); Lewis Cty . � Dairy Corp. , 21 BNA OSHC 1070, 1071 (No.
03-1533, 2005) (remanding on basis that even intrastate commerce affects
interstate commerce when there is an interstate market of industry materials) ;
see also Admissions �� 1, 2, 5,
6, 8, 9, 10, 11, 12, 13, 15, 16, 18, 24, 25; Tr. at 66-68 (reading Admissions
into the record). � Based upon the record,
the undersigned concludes that the Commission has jurisdiction over the parties
and subject matter in this case, and Respondent is covered under the Act.

PROCEDURAL
EVENTS:

DISCOVERY, PRE-HEARING PLEADINGS, AND THE HEARING

The
Secretary cited Respondent on December 20, 2016. � The citation was mailed to Respondent at the
following address: Wright Touch Landscaping & Heavy Equipment, Inc. and its
successors, 10029 NW 14 th Ave, Miami, FL 33147. [3] � Respondent filed a timely notice of contest, and
this case was docketed at the Commission on January 19, 2017. � The Secretary filed the Complaint for this
case on February 22, 2017, [4]
and Respondent filed an Answer on March 13, 2017. [5] �

The Answer was
handwritten, and Respondent is before the Commission without an attorney, or pro se . �
The handwritten
Answer, signed by Respondent�s Owner, Ms. Princess Wright, includes the
following:

I am denying the allegations that Wright
Touch Landscaping & Heavy Equipment Inc. was the employer engaged in
business, and was not providing any landscaping service, on the date of the
alleged violations.

The employer on the date of the incident
Realtor Daniel Carriazo owned the property where the
incident occurred. � Wright Touch was not
working for Mr. Carriazo . � [The decedent] was employed by the realtor,
and owner of the property Mr. Daniel Carriazo . [6] � Mr. Carriazo was a repeating customer of [the decedent]. � At no time before are( sic .) on the date of the incident did [the decedent] work for
Wright Touch Landscaping & Heavy Equipment.

(Answer at 1.) ���

On April 5, 2017, the Notice
of Hearing and Order for Parties to Confer and Submit Planning Recommendations
was sent out to both parties � and this notice was not returned by the U.S.
Post Office to the Commission � notifying the parties of the hearing date and
ordering the parties to confer by April 19, 2017. � On April 19, the Secretary submitted the
Parties� Recommendations for Time Limits, and certified that Respondent agreed
to the recommendations and authorized the Secretary to sign the document for
Respondent. � The next day, April 20,
2017, the Notice of Hearing, Scheduling order and Special Notices was sent out
to both parties � and this notice was also not returned by the U.S. Post Office
to the Commission.

On August 25, 2017,
the Secretary filed a Motion to Have Complainant�s First Requests for Admission
Deemed Admitted, and the undersigned granted the Secretary�s motion on
September 21, 2017. [7] � See Order Granting
Complainant�s Motion to Have Complainant�s First Requests for Admissions deemed
Admitted dated September 21, 2017. � On
this same day, September 21, the Notice of Precise Location of Hearing was sent
out to both parties � and both this notice and the order issued this same day
were not returned by
the U.S. Post Office to the Commission. �

On September 28, 2017, the
Secretary submitted the Secretary�s Pre-Hearing Statement. � In this statement, the Secretary stated that
despite numerous attempts at contact, Respondent had not returned telephone
calls or letters since September 20, 2017. [8] � ( Sec�y Pre- Hr�g
Statement at 1 n.1; Tr. at 7). � The
Secretary called Respondent, but could not leave a
voicemail because the voicemail box was full. �
( Sec�y
Pre- Hr�g Statement at 1 n.1; Tr. at 7). � Because Respondent did not use electronic mail,
the Secretary sent an overnight letter to Respondent regarding the Prehearing
Statement and exhibits, and Respondent did not reply. � ( Sec�y Pre- Hr�g Statement at
1 n.1; Tr. at 7). �� � �� �

As the Secretary
had not been in contact with Respondent, my office also attempted to contact
Respondent on October 5, 2017; and again, on October 11, the night before the
hearing, leaving voice messages each time regarding the hearing on October 12, 2017. � Respondent, however, did not respond to the
voicemails or appear at the hearing. �
(Tr. at 8.) � A s there is no evidence in
this record that the U.S. Postal Service failed to properly fulfill its duties,
it is presumed that Respondent received all mailings from my office. � Powell v.
Commissioner , 958 F.2d 53, 54 (4th Cir. 1992) (holding
that, in the absence of evidence to the contrary, it is reasonable to presume
that the United States Postal Service officials have properly discharged their
duties). � The undersigned holds
Respondent responsible for its mail handling procedures. � La.-Pac. Corp. , 13 BNA OSHC 2020, 2021 (No. 86-1266, 1989) (holding that
t he Commission expects e mployers to maintain
orderly procedures for handling important documents).

Accordingly, the hearing for this case took place as scheduled on October
12, 2017. [9] � Respondent was not in attendance. � (Tr. at 6-7). �
Counsel for the Secretary presented her case. � Several exhibits were admitted into evidence
at the hearing. � (Tr. at 14, 16, 25, 38,
43, 64; Exs . C-2 through Ex. C-7.) � Additionally, the Secretary�s First Requests
for Admissions, previously admitted under Commission Rule 54(b), [10] were read into the
record. � (Tr. at 65-68); see also �Order Granting Complainant�s
Motion to Have Complainant�s First Requests for Admission Deemed Admitted
Attachment A� dated September 21, 2017 (attachment sent out on October 5,
2017); Sec�y Pre- Hr�g Statement at 3-5. � According to Commission Rule 54(c), these admissions
are conclusively established in this matter. [11] � 29 C.F.R. � 2200.54(c). � These admissions are reproduced infra .

After the hearing, the
Secretary served a copy of his post-hearing brief upon Respondent on November
30, 2017. � Respondent neither offered any
exhibits into the record nor filed a post-hearing brief. � Commission Rule 64 states that the failure of
a party to appear at a hearing �may result in a decision against that party.� � 29 C.F.R. � 2200.64(a). � A failure to appear may be excused where good
cause is shown, but a request for reinstatement must be made within five days
of the hearing. � 29 C.F.R. � 2200.64(b).
� Respondent has made no such request. � Despite the numerous attempts by both the
Secretary and my office, Respondent effectively abandoned this case by not
showing up to trial and by not communicating with my office since that time. �

The evidence produced by the
Secretary is therefore uncontested since Respondent failed to appear at the
hearing, proffer any trial exhibits, or file any post-hearing brief.

ADMITTED FACTS

����������� The following facts are conclusively
established for this matter:

1)                  
On June
28th, 2016, Respondent's principal business activity included landscaping
services.

2)                  
On June
28th, 2016, Respondent's principal business activity included tree trimming
services.

3)                  
Princess
Wright does not personally perform landscaping services for Wright Touch.

4)                  
Princess
Wright does not personally perform tree trimming services for Wright Touch.

5)                  
Wright
Touch solicits landscaping work from homeowners in the Miami, Florida and
Broward area.

6)                  
When a
person hires Wright Touch to perform landscaping work, Princess Wright
negotiates the details, including cost and scope of the landscaping work to be
done.

7)                  
On June
28th, 2016, Princess Wright was present at the work site.

8)                  
As of
June 28th, 2016, Respondent operated at least one vehicle that required the
driver to hold a valid commercial driver license. �

9)                  
On June
28th, 2016, Princess Wright held a commercial driver license.

10)              
Princess
Wright transported [the decedent] to the work site on June 28th, 2016.

11)              
On June
28th, 2016, [the decedent] was performing tree trimming work at the work site.

12)              
On June
28th, 2016, [the decedent] performed tree trimming work from Respondent's
elevated truck-mounted bucket.

13)              
[The
decedent] used the Respondent's truck-mounted bucket to access the roof at the
work site.

14)              
On June
28th, 2016, [the decedent] did not use a body belt and lanyard at any time
while in Respondent's truck-mounted bucket.

15)              
On June
28th, 2016, [the decedent] was in Respondent's truck-mounted bucket while it
was elevated over four feet above the ground.

16)              
On June
28th, 2016, [the decedent] performed work from Respondent's truck mounted
bucket while it was elevated over four feet above the ground.

17)              
On June
28th, 2016, Princess Wright knew that [the decedent] did not use a body belt
and lanyard while using Respondent's truck-mounted bucket to access the roof
and/or to trim trees at the work site.

18)              
On June
28th, 2016, [the decedent] performed tree trimming work while on the roof at
the work site.

19)              
On June
28th, 2016, Respondent did not provide [the decedent] with fall protection
equipment while he performed his work activities while on the roof at the work
site.

20)              
On June
28th, 2016, Princess Wright knew that [the decedent] was working from the roof
at the work site without using fall protection.

21)              
On June
28th, 2016, [the decedent] stood at the edge of the roof at the work site while
performing tree trimming.

22)              
On June
28th, 2016, [the decedent] stood within five feet of the edge of the roof at
the work site while performing tree trimming.

23)              
On June
28th, 2016, Princess Wright knew that [the decedent] worked near the edge of
the roof at the work site without using fall protection.

24)              
Respondent
provided the necessary tools for [the decedent] to perform his work at the work
site on June 28th, 2016.

25)              
On and
before June 28th, 2016, Respondent paid [the decedent] to perform tree trimming
work.

�Order
Granting Complainant�s Motion to Have Complainant�s First Requests for
Admission Deemed Admitted Attachment A� dated September 21, 2017 (attachment
sent out on October 5, 2017); Sec�y Pre- Hr�g
Statement at 3-5; (Tr. at 66-68) (reading admissions into the record).

BACKGROUND &
FINDINGS OF FACT

����������� Ms. Princess Wright owns Wright
Touch, a small landscaping and tree-trimming company. � To obtain business, Ms. Wright drives out
into the community in the company vehicle and solicits individual homeowners
for landscaping and tree-trimming work. �
Ms. Wright presents a business card to the individual homeowner and negotiates
the terms of the project with the homeowner. �
Ms. Wright does not perform the work herself, instead she hires workers
to perform the work. � Once the
landscaping or tree-trimming job is completed by these workers, Ms. Wright
collects payment from the homeowner and then pays the workers, keeping a portion
for herself. �

The OSHA Investigation

On or around September 13,
2016, OSHA received a referral regarding the decedent�s accident on June 28,
2016, from the Miami Police Department. �
(Tr. at 29-30; Citation at 9 (beginning date of OSHA inspection).) � Prior to receiving this referral in September
from the Miami Police Department, OSHA had not received notice from Respondent
of the decedent�s incident in June. � (Tr.
at 30.) � At the beginning of OSHA�s
investigation, Compliance Officer Juan Roa
held an opening conference with Ms. Wright at her residence, having identified
Respondent as the employer by speaking with the homicide detective involved
with referral. � (Tr. at 30.) � During this opening conference, Ms. Wright
told CO Roa that the decedent was not her
employee. � (Tr. at 31.) � CO Roa , however,
learned that Ms. Wright had driven the decedent to the worksite, had provided
the decedent with �utilities,� and had paid the decedent for �the service that
had been rendered.� � (Tr. at 31.)

����������� During
the OSHA investigation, CO Roa interviewed and took
statements from Ms. Wright and Mr. Jack Davis, the other worker on the worksite
on the day of the incident. � (Tr. at 35,
39, 58; Exs . C-2, C-5); Beta Constr. Co. , 16 BNA OSHC 1435, 1441-1442 (No. 91-102, 1993)
(noting that out-of-court, contemporaneous statements made by the employee to
the OSHA compliance officer during the OSHA investigation are admissible and
can be given weight to the extent that they are reliable). [12]
� Through these interviews, CO Roa determined that the decedent had been working on a
residential roof, trimming trees and �cleaning out branches,� �without any type
of fall protection, with no harness, or lanyard, or tied off to anything.� � (Tr. at 35.) �

The Worksite

CO
Roa visited the worksite, a one-story residence with
tall oak trees surrounding it. � (Tr. at
31); see Ex. C-6 (pictures of the
worksite). � CO Roa
determined, by using a measuring tape, that the distance from the eaves of the
roof (the lowest point of the roof) to the ground was nine feet eight
inches. � (Tr. at 32-34.) � Ms. Wright told CO Roa
that she personally �elevated [the decedent] to the roof with an aerial
lift.� � (Tr. at 35.) � Ms. Wright also told CO Roa
that the decedent had not used a lanyard while working. � (Tr. at 35.) �
According to CO Roa , Mr. Davis was at ground
level and did not engage in any activity in the bucket or on the roof. � (Tr. at 56-57.) ��������

The project at
issue in this case began when Ms. Wright approached homeowner Daniel Carriazo in front of Mr. Carriazo�s
home. [13] � (Tr. at 10.) �
Mr. Carriazo testified that Ms. Wright told
him that her company had been working on another project in the area but that
it fell through, and she asked Mr. Carriazo whether
he was interested in landscaping or tree-trimming work. � (Tr. at 10.) �
She presented her business card to him, which had Respondent�s name and
contact information on it. � (Tr. at
12-14; Ex. C-3.) � Mr. Carriazo
testified that the decedent was standing with Ms. Wright during this
conversation. � (Tr. at 11.) � Ms. Wright and Mr. Carriazo
negotiated a deal which entailed trimming oak trees, �trimmed them, and cleaned
them up and thinned them out,� on Mr. Carriazo�s
property in exchange for $650. � (Tr. at
14, 18, 63; Ex. C-2 at 5.) � Mr. Carriazo testified that before this moment, he had never
met the decedent. � (Tr. at 11-12.)

The Workers

The
decedent, according to his wife�s testimony, had performed work for Ms. Wright
in the past. � (Tr. at 20.) � The decedent�s wife testified that her
�son-in-law�s cousin� knew Ms. Wright, knew that the decedent �needed work,�
and so connected Ms. Wright and the decedent. �
(Tr. at 20.) � According to his
wife, the decedent did not solicit his own landscaping jobs, did not own his
own business, did not own tree-trimming or landscaping tools, and did not have
his own transportation. � (Tr. at
20-21.) � Ms. Wright would provide the
decedent transportation to the worksites as well as the tools to perform the
work she told him to do. [14] � (Tr. at 21.) �
The decedent�s wife testified that Ms. Wright would call their home in
the morning to arrange the time at which Ms. Wright would pick up the decedent
to go to work. � (Tr. at 21.) � One time, according to the decedent�s wife,
Ms. Wright told her to tell the decedent to be ready to be picked up at 10a.m. [15] � (Tr. at 21.) �

Mr. Davis told CO Roa that he (Davis) had worked for Ms. Wright �about eight
times in a month.� � (Tr. at 40-41.) � Mr. Davis said that he was on the worksite
all day on the day of the incident, and that Ms. Wright paid him for the work
he did on the day of the day of the incident, as she did for the other jobs he
performed for her. � (Tr. at 41.) ���

The Aerial Lift

Respondent
owned a truck-mounted aerial lift to perform its services. � (Tr. at 36, 55; Ex. C-7.) �� Ms. Wright communicated to CO Roa that the truck was hers, and the truck has a �Wright
Touch Tree Service� sign on it. � (Tr. at
36; Ex. C-7.) � Ms. Wright told CO Roa that Respondent utilized this truck on the worksite on
the day of the incident. � (Tr. at
37.) � This truck was manufactured in
Elizabethtown, Kentucky. � (Tr. at 37; Ex.
C-7 at 2.) � This truck was the only truck
with an arm attached to it on the worksite on the day of the incident; the only
other truck on the worksite that day was a pick-up truck. � (Tr. at 38.) �
Mr. Carriazo testified that Respondent drove a
truck, that had Respondent�s name on it, onto his property, through his side
gate, and into his backyard. � (Tr. at
15-16; Ex. C-6.) � The term �bucket� is used in Ms. Wright�s statement as
well as within her Admissions as the �truck-mounted bucket.� � See,
e.g. , � 13 (�[The decedent] used the Respondent�s truck-mounted bucket
to access the roof at the work site.�) �
The undersigned finds that the �bucket� referred to here is the elevated
work platform that is attached to Respondent�s aerial lift. �

The Work Tasks

Ms.
Wright described the work that was performed at the worksite on the day of the
incident. � (Ex. C-2 at 2-3; Tr. at
61-62.) � The decedent, Mr. Davis and Ms.
Wright arrived at the worksite sometime between 11a.m. and 1p.m. � (Ex. C-2 at 2; Tr. at 61.) � The decedent used the �bucket,� which was
attached to the truck which was parked on the side of the house, to get on the
roof. � (Ex. C-2 at 2; Tr. at 61.) � Ms. Wright told CO Roa that she
herself elevated the decedent to the roof using the bucket of the aerial
lift. � (Tr. at 35.) � The decedent then trimmed the trees in
front of the house from the roof. � (Ex. C-2
at 2; Tr. at 61.) � Mr. Davis also used
the bucket to get up on the roof at this time. �
(Ex. C-2 at 2; Tr. at 61.) � Ms.
Wright then left the worksite for about 20-30 minutes. � (Ex. C-2 at 2; Tr. at 61.) � When she returned, the decedent and Mr. Davis
came down. � Ms. Wright stated that she
did not see the decedent or Mr. Davis �tied off to anything while they were on
the roof.� � (Ex. C-2 at 2; Tr. at
61.) �

The decedent then
used the bucket in front of the house to trim some trees by the house and by
the driveway. � (Ex. C-2 at 2-3; Tr. at
61.) � He used a �pull saw,� and while Ms.
Wright stated that she thought the pull saw belonged to him, not remembering if
he had used her �pruning saw,� she later admitted to providing the necessary
tools for the decedent to perform his work that day. � (Ex. C-2 at 3; Tr. at 61; Admissions at
� 24.) � The decedent also trimmed
trees from the bucket away from a black awning in the back yard. � (Ex. C-2 at 3; Tr. at 62.) � Ms. Wright stated that the decedent was in
the bucket for �15 minutes maximum,� and did not know �how he had to get up to
trim the trees in the back.� � (Ex. C-2 at
3; Tr. at 62.) � At this time, the
decedent and Mr. Davis began cleaning up. �
They loaded the big branch debris in the truck. � (Ex. C-2 at 3; Tr. at 62.) � The decedent �got back on the truck to blow
the awning off clean, which took 5-7 minutes.� �
(Ex. C-2 at 3; Tr. at 62.) � Then
the decedent �got back down, and they loaded up the truck with the debris that
was left in the back.� � (Ex. C-2 at 3;
Tr. at 62.)

Notably, Ms.
Wright stated the following: �[The decedent] did not have a harness on while he
was on the roof. � [The decedent] did not
have a harness on while he was trimming the trees from the bucket truck.� � (Ex. C-2 at 3-4; Tr. at 62.) � ��� �����������

The Incident

����������� Regarding the incident itself, the
record contains circumstantial evidence. No one saw what happened. � Neither Ms. Wright nor Mr. Davis testified at
the hearing. � In her statement, Ms.
Wright stated:

[The decedent] and
Jack stayed in the back to clean up, and I parked the truck in the front of the
house. � I was waiting for about 10
minutes, and finally I got out and I walked back. � The gate was open, and I found [the decedent]
by the corner of the post. � His head was
toward the gate and his legs toward the street. �
He was facing up. � When I found
him on the floor, he did not have a harness. �
I found [the decedent], and I went to get Jack, and I told him that [the
decedent] was passed out. � We came back and Jack stayed with [the decedent]. � I ran to the front of the house and got the
attention of the people inside. � They did
not speak English. � I called 911 before I
got Jack. �

(Ex. C-2 at 4-5;
Tr. at 62-63.) � Mr. Davis stated: � I think he was on the truck
because he had to cut two tree limbs in the front. That�s after the truck had
left out back and had gone to the front.� �
(Ex. C-5; Tr. at 41.)

Mr. Carriazo also did not witness the accident. � He testified that he had left his house and
returned to find his relative in the road in front of his home, waving him (Mr.
Carriazo ) down. �
(Tr. at 17.) � Mr. Carriazo testified that his relatives did not know what
happened. � (Tr. at 17.) � Ms. Wright was talking to Mr. Carriazo�s relatives, who did not speak English, trying to
get towels. � (Tr. at 17.) � Mr. Carriazo sent
his relatives inside his home and then went to find the decedent. � Mr. Carriazo stated
that he found the decedent:

on
the ground face up. � He was trying to sit
up and speaking. � In my opinion, it
didn�t make sense what he was saying, but he was trying to get up, and I was
telling him to relax. � We got some
towels. � And by that time within seconds,
I would say the police and the ambulance got there of me arriving there,
probably 30 seconds, probably � maybe less.

(Tr. at
17-18.) �

Ms. Wright stated
that she called 911 on the worksite on the day of the incident. � She told the operator that �[the decedent]
was bleeding from the back of the head. �
The operator told me to get a towel. �
I ran inside the house, and I laid down to try to explain what was
happening. � I got up, and the owner of
the house arrived, and I went up to him and told him what happened.� � (Ex. C-2 at 5; Tr. at 63.) � Ms. Wright further said:

Once the paramedics picked [the decedent] up
and I saw a rock in the ground. The rock was about the size of a CD, and it was
sticking out about one inch. I don't remember if the rock was smooth or jagged.
The last time I saw him, he was trying to fix a Christmas light in the back of
the house at ground level. [The decedent] told me that the owner was a repeat
customer of his.

(Ex. C-2 at 6; Tr.
at 63-64.)

At around 2 p.m., according to t he decedent�s wife, Ms. Wright called her from the decedent�s
cell phone. � Ms. Wright told the
decedent�s wife that �he had an accident, and that he was on the ground, and
paramedics and the police were there.� �
(Tr. at 26.) � The decedent�s wife
testified that she then spoke to �the officer,� who told her that [the
decedent] fell. � He was on the ground,
and they was transporting him to [the hospital].� � (Tr. at 26.) �
The decedent was taken to the hospital on June 28, 2016, and never left
the hospital. � (Tr. at 26-27.) ���������

After
the accident, Ms. Wright stated that: �The owner of the house gave me the money
for the job, and I gave some to the wife. �
The owner gave me $650. � I gave
the wife $150. � I gave Jack $100 or
$150. � I kept $300 because he owed me
money.� � (Ex. C-2 at 5-6; Tr. at
63.) � � ������

DISCUSSION

Was There an Employer/Employee Relationship?

The OSH Act places duties on
�employers� to protect the health and safety of �employees.� � 29 U.S.C. � 654(a). � An employer is defined as �a person engaged
in a business affecting commerce who has employees.� � 29 U.S.C. � 652(5). � �Only an employer may be cited for a
violation of the Act.� � Allstate Painting & Contracting Co. ,
21 BNA OSHC 1033, 1035 (No. 97-1631, 2005) (consolidated) ( Allstate ). � The Act requires
each employer to comply with occupational safety and health standards and
regulations promulgated under the OSH Act. �
Id . The Secretary has the
burden of proving Respondent is the employer of at least one affected employee
at the worksite. � Allstate , 21 BNA OSHC at 1035; Poughkeepsie
Yacht Club, Inc. , 7 BNA OSHC 1725, 1727 (No. 76-4026, 1979).

To determine whether the
Secretary has established the existence of an employer employee relationship,
the Commission relies upon an analysis of the factors elucidated in Nationwide Mut .
Ins. Co. v. Darden , 503 U.S. 318, 322-23 (1992) ( Darden ). � See Sharon
& Walter Constr., Inc. , 23 BNA OSHC 1286, 1289 (No. 00-1402, 2010) ( S&W ). � In Darden,
the following factors are considered:

the skill required [for the job]; the source
of the instrumentalities and tools; the location of the work; the duration of
the relationship between the parties; whether the hiring party has the right to
assign additional projects to the hired party; the extent of the hired party�s
discretion over when and how long to work, the method of payment; the hired
party�s role in hiring and paying assistants; whether the work is part of the
regular business of the hiring party; whether the hiring party is in business;
the provision of employee benefits and the tax treatment of the hired party.

Darden , 503 U.S. at 323-324 (citation omitted). � When following Darden , the Commission emphasizes that the critical factor in the
analysis is the �right to control the manner and means by which the product
[was] accomplished.� � S&W , 23 BNA OSHC at 1289, quoting Darden , 503 U.S. at 323.

The record supports a
finding that Respondent employed the decedent at the Miami residential worksite
on June 28, 2016. � Contrary to what Ms.
Wright wrote in Respondent�s Answer, Ms. Wright later admitted to facts that
establish that the decedent was her employee on the day of the incident. � For example, Ms. Wright owned the landscaping
and tree-trimming company, and advertised its services and commercial license
number using business cards and a sign on her truck that she owned. � The decedent was given a T-shirt to wear with
the purpose of identifying him as a representative of Wright Touch. [16] �

Ms. Wright also controlled where
and when the decedent would work. � She
would call the decedent the morning of and direct him to be ready to be picked
up at a specific time to be transported to the worksite. � Ms. Wright also negotiated the terms of the
project with the homeowner, and then directed the decedent to perform those
tasks. � Ms. Wright also provided the
tools with which the decedent used to perform those tasks. � Finally, Ms. Wright paid the decedent from
the proceeds of the payment � which was issued to her � after the decedent
performed the tasks.

Under these circumstances,
the undersigned finds that Respondent employed the decedent, and therefore,
Respondent was responsible for protecting the health and safety of the decedent
at the Miami residential worksite on June 28, 2016.

Allegations

To establish a prima facie
case for the violation of an OSHA standard, the Secretary must show �(1) that
the regulation applied; (2) that it was violated; (3) that an employee was
exposed to the hazard that was created; and importantly, (4) that the employer �knowingly
disregarded� the Act's requirements.� � ComTran Grp., Inc. v. U.S. Dep�t of Labor , 722
F.3d 1304, 1307 (11th Cir. 2013). � A
violation is �serious� if a substantial probability of death or serious physical
harm could have resulted from the violative condition. � 29 U.S.C. � 666(k).

While the record is unclear
exactly how the decedent�s incident occurred, the fall protection citation
items are affirmed here because the record supports the finding that Respondent
violated these standards before the incident even occurred. � Regarding the reporting standard, the record
also supports a finding that whatever caused the decedent�s injury on the day
of the incident was work-related. �

Citation 1, Item 2: The
Alleged Aerial Boom Fall Protection Violation

����������� For this citation item, the Secretary
alleges a serious violation of 29 C.F.R. � 1910.67(c)(2)(v), which
provides in pertinent part:

(c)(2) Extensible and articulating boom platforms .
(v) A body belt shall be worn and a lanyard attached
to the boom or basket when working from an aerial lift.

29 C.F.R. � 1910.67(c)(2)(v). � The definitions section of this cited
standard explains that an aerial device is �any vehicle-mounted device,
telescoping or articulating, which is used to position personnel.� � 29 C.F.R. � 1910.67(a)(1). � An extensible boom platform is an aerial
device (except ladders) with a telescopic or extensible boom.� � 29 C.F.R. � 1910.67(a)(4). �

At the hearing, CO
Roa explained that this �standard requires basically
fall protection anytime you�re working from a bucket truck � [because] an
employee can be easily catapulted out with any sort of movement.� � (Tr. at 44-45.) � CO Roa testified
that Respondent was cited for a violation of this standard because Ms. Wright
stated, in the interview, that the decedent did not use fall protection �in the
bucket� while the decedent �had been in the bucket, you know, to cut the trees
and to access the roof.� � (Tr.at 45-47.) � CO Roa testified
that Ms. Wright stated that she was �right there at the site, and [] watched [the decedent] get
on and off.� � (Tr. at 46.) �

����������� The
evidence supports the Secretary�s allegations. �
To determine which standard applies, the Commission looks to the cited
working conditions. � S. Pan Servs . Co. , 25 BNA OSHC 1081, 1085
(No. 08-0866, 2014) aff�d , 685 F. App�x 692 (11th Cir. 2017) (unpublished). � Respondent was performing tree-trimming work
at a residential worksite. � According to
the homeowner, he contracted with Respondent to �clean up� the trees and to
�thin them out.� � The undersigned finds
this type of tree-trimming work is preventative in nature, so
as to prevent damage to the residence. �
Preventative tree-trimming work is considered maintenance and therefore falls
under the general industry standards in section 1910 instead of OSHA�s
construction standards in section 1926. � Consumers
Power Co. , 5 BNA OSHC 1423 (No. 11107, 1977). � Additionally, Respondent�s truck qualifies as
an aerial lift because it has a structure mounted on it which was used to
elevate the decedent into position to trim trees, and to lift him to the
roof. � The bucket is found to be an
extensible boom platform because the decedent stood in it while it transported
him to his work tasks. � The decedent
worked trimming trees from the bucket. �
The cited standard applies.

����������� Ms.
Wright stated that the decedent did not wear any kind of harness while working
from the bucket. � Ms. Wright also
admitted that she did not provide fall protection equipment to the decedent,
even after providing other equipment for him to use while working from the
bucket. � The standard has been violated.

����������� Ms.
Wright stated that she personally operated the truck, lifting the decedent in
the bucket up to the roof of the residence. �
Ms. Wright also stated that the decedent worked from the bucket, trimming trees,
without a harness on. � The Secretary has
established exposure.

����������� �Commission precedent holds[s] that a supervisor's
knowledge is imputable to the employer.�  Empire   Roofing  Co.
Se., LLC, 25 BNA OSHC 2221, 2222 (No. 13-1034, 2016) aff�d , Empire Roofing Co. Se., LLC v. Occupational Safety &
Health Review Comm'n , No. 16-17309, 2017
WL 4708162, at *3 (11th Cir. Oct. 19, 2017) (unpublished ). � Both the
worksite and Wright Touch�s principal place of business, according to Ms.
Wright�s business card, are in Florida, which is located in
the Eleventh Circuit. � Therefore, the
Eleventh Circuit would have jurisdiction over an appeal filed by either party. [17] � See 29 U.S.C. � 660(a), (b). � �Where it is highly probable that a
Commission decision would be appealed to a particular circuit ,
the Commission has generally applied the precedent of that circuit in deciding
the case�even though it may differ from the Commission�s precedent.� � Kerns Bros. Tree Serv. , 18 BNA OSHC
2064, 2067 (No. 96-1719, 2000).

����������� The 11th Circuit has issued several
recent decisions addressing knowledge of a supervisor in a Commission
case. � For example, in ComTran , the 11th
Circuit held that the Secretary must do more than establish a �supervisor's
knowledge of his own malfeasance� in order to prove
the knowledge element of an OSHA violation. �
Comtran ,
722 F.3d 1304. � In such a situation, the
supervisor�s knowledge of his own misconduct is not imputable to the
employer. � Id . � In Quinlan v. Sec�y, U.S. Dep�t
of Labor , 812 F.3d 832 (11th Cir. 2016),
the 11th Circuit held that a � supervisor's
knowledge of [a] subordinate employee's violative conduct could be imputed to
his employer under [the OSH Act] when [the] supervisor himself was
simultaneously involved in violative conduct.� �
Id . at 832. � These cases have slightly different factual
scenarios than the one at issue here.

However, the recent Empire
Roofing Co. Se., LLC , 2017 WL 4708162 (11th Cir. Oct. 19, 2017)
(unpublished ), is a case with similar facts to
the case at issue: a supervisor operating an aerial lift, elevating his
subordinates who failed to wear fall protection. � Empire
Roofing Co. Se., LLC , 2017 WL 4708162, at 3. � The supervisor knew that his subordinates
were not wearing fall protection. �� Empire Roofing Co. Se., LLC , 2017 WL
4708162, at 3. � The 11th Circuit,
expounding on ComTran
and Quinlan , held that this situation
was a �classic situation� of supervisor knowledge properly imputable to the
employer: ��

�The classic situation in which
knowledge of a supervisor is imputed to an employer is when the supervisor is
on the scene looking on, sees the subordinate employee violating a safety rule,
knows there is such a violation, but nonetheless allows it to continue.� � Quinlan v. Sec�y, U.S. Dep�t of Labor , 812
F.3d 832, 841 (11th Cir. 2016). � Thus, in
the �ordinary case� � in which the Secretary proves that a supervisor had
actual or constructive knowledge of a subordinate employee's violation � the
general rule is that the knowledge of the supervisor is imputed to the employer.
ComTran , 722 F.3d at 1307�08 &
n.2. ����������������������������������� �� ����

Empire Roofing
Co. Se., LLC , 2017 WL 4708162, at *3. �

Here,
Ms. Wright, the supervisor, admitted to knowing that the decedent did
not wear fall protection while he worked from the aerial lift bucket; and, Ms.
Wright stated that she elevated the bucket with the decedent in it, while he
was not wearing fall protection. � The
undersigned finds that this situation is analogous to the �classic situation�
of the supervisor �looking on,� while the subordinate worked without fall
protection in the bucket of an aerial lift. �
Quinlan , 812 F.3d at 841; see also Phoenix Roofing,
Inc. , 17 BNA OSHC 1076, 1079 (No. 90-2148, 1995) (�Employer knowledge is
established by a showing of employer awareness of the physical conditions
constituting the violation�), aff�d, 79 F.3d 1146 (5th Cir. 1996)
(unpublished). � The Secretary has
established actual knowledge. � The
alleged violation is affirmed. � ��

CO Roa testified that the violation was characterized as
serious because a fall from the bucket of an aerial lift could cause the
employee to �break their bones and/or death.� �
(Tr. at 46.) � �� This testimony establishes that death or
serious physical harm could result from the decedent not wearing fall
protection while working from the bucket.

This violation is
affirmed as serious.

Citation 1, Item 3: The
Alleged Roof Fall Protection Violation

����������� The Secretary alleges a serious
violation of 29 C.F.R. 1910.132(a), which requires in pertinent part:

Protective
equipment�shall be provided, used, maintained in a sanitary and reliable condition
wherever it is necessary by reason of hazards�encountered in a manner capable
of causing injury or impairment in the function of any part of the body through
absorption, inhalation or physical contact.

29 C.F.R.
1910.132(a). � CO Roa
explained that this �standard requires a personal protective equipment when an
employee is exposed to a hazard. � In this
case, [the decedent] was exposed to a fall hazard from the eaves of the roof
while working on it, doing tree trimming.� �
(Tr. at 49.) � CO Roa testified that Ms. Wright stated that the decedent had
no fall protection while he was working on the roof, and that Ms. Wright said
she watched him work on the roof with no fall protection. � (Tr. at 49-50.)

����������� The
record establishes that the decedent and Mr. Davis worked from a residential
rooftop, which was over 9 feet high. � In
this situation, a fall hazard existed on this worksite, and therefore,
Respondent was obligated to provide fall protection equipment to its workers,
and those workers were obligated to use the fall protection equipment. � The cited standard applies.

����������� The
record also establishes that Respondent did not provide fall protection
equipment to the decedent, despite providing other tools for the job, and the
decedent did not wear fall protection while he was on the roof. � The cited standard was violated.

����������� The
decedent worked from the rooftop, which was over 9 feet high, in the front of
the house and the back of the house. � He
traversed the rooftop from the edge on which he accessed it from the bucket, to
the front of the house and to the back of the house. � He was trimming trees away from the roof, and
thus had to approach the edge of the rooftop to reach those branches, all while
not being protected from falling from the rooftop. � Exposure has been established.

����������� With regard to knowledge, Ms. Wright admitted that she did
not provide fall protection to the decedent to use while he performed work on
the rooftop. � Ms. Wright also admitted
that she knew that the decedent did not wear fall protection while he was
working near the edge of the roof trimming trees. � She also stated that she elevated the decedent
to the roof with the aerial lift, knowing that he did not have fall protection
to wear while being on the roof. � The
undersigned finds that this situation, like the aerial lift citation item, is
analogous to the �classic situation� of the supervisor �looking on,� while the
subordinate worked without fall protection; this time from a rooftop with a
fall of more than 9 feet. � Quinlan , 812 F.3d at � 841 ; Phoenix Roofing, Inc. , 17 BNA OSHC at 1079
(awareness of violative conditions sufficient to establish knowledge element of
violation). � Actual knowledge of the
violation of this standard is established. �
The violation is affirmed.

����������� CO
Roa applied the same characterization analysis as he
did to Citation 1, Item 2. � (Tr. at
51-52.) � The undersigned finds that a
fall from a roof over 9 feet tall can result in serious bodily injury or
death. � The violation is affirmed as serious.

Citation 2, Item 1: The
Alleged Reporting Violation

The Secretary cited
Respondent for an alleged other-than-serious violation of 29 C.F.R.
1904.39(a)(2), which provides in pertinent part:

Within twenty-four (24) hours after the
in-patient hospitalization of one or more employees or an employee�s amputation
or an employee�s loss of an eye, as a result of a
work-related incident, you must report the inpatient hospitalization,
amputation, or loss of an eye to OSHA. �

29 C.F.R. 1904.39(a)(2). � CO Roa testified
that �Wright Touch was cited because Wright Touch had never contacted the
Agency within 24 hours, you know, of the accident, you know, informing us that
there had been someone hospitalized � and employee hospitalized from the
company.� � (Tr. at 52-53); see also Yelvington Welding Serv. , 6 BNA OSHC 2013, 2014 (No. 15958, 1978) (explaining that
the reason for the � reporting requirement is to
provide the Secretary with prompt notification of serious accidents so that he
can take timely action to avoid further injuries.�)

There is no dispute that the
decedent was hospitalized, and that Respondent failed to notify OSHA within 24
hours of decedent�s hospitalization. � The
decedent never left the hospital, supporting a finding that he died as a result of his head injury. � Based on the evidence in the record, the
undersigned also finds that the decedent�s head injury was work-related. � �An injury is work-related if an event or
exposure in the work environment either caused or contributed to the resulting
condition.� � 29 C.F.R. � 1904.5(a). � For an injury to be considered work-related,
the Secretary must establish an �identifiable event� at the worksite that
caused the employee�s injury. � Home Depot #6512 , 22 BNA OSHC 1863, 1864-1865
(No. 07-0359, 2009). �

Here, Respondent was found
at the worksite, face up, with blood coming from the back of his head. � Ms. Wright stated that, in looking to
determine what caused the injury, she noticed a rock under where the decedent�s
head was on the ground. � Mr. Davis
suggested that the decedent fell while working from the bucket, stating � I think he was on the truck
because he had to cut two tree limbs in the front. That�s after the truck had
left out back and had gone to the front.� �
The police officer at the scene told the decedent�s wife that the
decedent fell. � The decedent�s injury was
severe enough to have resulted in his hospitalization, from which he never
recovered, and spurred the Miami County Police Department to notify OSHA. � The record establishes that the decedent had
been working on an aerial lift and from a rooftop without any fall
protection. � There is nothing in the
record that suggests anything not work-related caused the decedent to hit his
head. � The record supports a finding that
the decedent hit his head while performing work-related tasks on the Miami
residence worksite, and was therefore hospitalized as
a result of a work-related incident. � Applicability
and non-compliance of the cited standard are established.

Regarding knowledge, the record
shows that Ms. Wright was present with the decedent when the emergency
responders took the decedent away from the worksite. � The record also establishes that Ms. Wright
was directed to administer a towel to the decedent�s head in response to his
bleeding. � Ms. Wright also stated that
she noticed a rock sticking up from out of the ground under his head,
supporting a finding that Ms. Wright suspected that the decedent�s head injury
resulted from his work on the worksite. � The
incident occurred to the decedent, while he was on her worksite. � Ms. Wright herself transported the decedent
to this worksite. � Actual knowledge for
this citation item is established. � Empire   Roofing  Co.
Se., LLC, 25 BNA OSHC at 2222; Phoenix Roofing,
Inc ., 17 BNA OSHC at 1079. �

This citation item
is affirmed. �

With regard to characterization, a
violation is �other-than-serious� if the evidence in the record does not
support a finding that failure to comply with the cited standard would likely
result in death or serious physical harm. �
29 U.S.C. � 666(k); Miniature Nut
& Screw Corp. , 17 BNA OSHC 1557, 1559 (No. 93-2535, 1996). � CO Roa explained
that this citation item was characterized as �other-than-serious� because �it�s
a regulatory citation. � It�s there
basically to, you know, prevent employees from not reporting, you know, the
accident that happened at the job site.� �
(Tr. at 53.) � The record supports
a finding that this affirmed citation item is properly characterized as
�other-than-serious.�

PENALTY

Section 17(j) of the Act
requires the Commission to give due consideration to four criteria in assessing
penalties: the size of the employer�s business, the gravity of the violation,
the employer�s good faith, and its prior history of violations. � Compass
Envtl ., Inc. , 23 BNA OSHC 1132, 1137 (No.
06-1036, 2010) aff�d , 663 F.3d 1164
(10th Cir. 2011). � The gravity of the violation
is generally accorded greater weight. � J. A. Jones Constr. Co. , 15 BNA OSHC

2201, 2214 (No. 87-2059, 1993). �

����������� Regarding
Serious Citation 1, Item 2, the aerial lift violation, C O Roa testified that he assigned a �higher� severity to the
penalty due to the consequences of a fall from 9 feet 8 inches (broken bones
and/or death), but a �lesser� probability due to the �very short time period of
approximately 30 minutes� of the decedent working during the violative condition. � As a result, the violation was assigned a
�moderate gravity� and the Secretary proposed a $8,990 penalty. � (Tr. at 47.) �
The penalty was then adjusted to take into account
the small size of the employer (70% deduction from the original penalty). � (Tr. at 48.) �
No adjustments were made for good faith because Respondent had no safety
program, oral or written. � (Tr. at
48.) � No adjustment was made for history,
deduction or increase, because Respondent had not before been cited or
inspected by OSHA. � (Tr. at 48.) � The resulting proposed penalty was $2,672. �

����������� Regarding
Serious Citation 1, Item 3, the roof violation, CO Roa
arrived at the same proposed penalty as he did for Citation 1, Item 2,
after adjusting for size: $ 2,672. � (Tr.
at 51-52.)

����������� Regarding
Other-Than-Serious Citation 2, Item 1, the reporting violation, CO Roa testified that severity, gravity and probability were
not factored by OSHA in determining the proposed penalty of $5,000 because
�it�s a flat penalty assessed by the Agency.� �
(Tr. at 53.) �� Like Citation 1,
Items 2 and 3, OSHA adjusted the penalty due to small size of the employer, but
did not adjust for good faith or history, for a final adjusted proposed penalty
of $1,500. � (Tr. at 54.)

����������� After
consideration of the statutory factors with regard to
the penalties for the affirmed violations, the undersigned agrees with the
penalty amounts proposed by the Secretary for each citation item. � The proposed penalty amounts are assessed for
each affirmed citation item.

FINDINGS OF FACT
AND CONCLUSIONS OF LAW

All
findings of fact and conclusions of law relevant and necessary to a
determination of the contested issues have been made above. � See
Fed. R. Civ. P. 52(a). � All proposed
findings of fact and conclusions of law inconsistent with this decision are
denied.

ORDER

Based
upon the foregoing findings of fact and conclusions of law, it is ORDERED that:

1)       Citation
1, Item 1 was withdrawn by the Secretary and is thus VACATED,

2)      
Citation 1, Item 2, alleging a Serious violation of 29
C.F.R. � 1910.67(c)(2)(v), is AFFIRMED, and a penalty of $2,672 is ASSESSED,

3)       Citation
1, Item 3, alleging a Serious violation of 29 C.F.R. � 1910.132(a), is
AFFIRMED, and a penalty of $2,672 is ASSESSED,

4)       Citation
2, Item 1, alleging an Other -Than-Serious violation of
29 C.F.R. � 1904.39(a)(2), is AFFIRMED, and a penalty of $1,500 is
ASSESSED.

SO ORDERED.

�����������������������������������������������������������������������������������������������

_ /s/ Covette Rooney ____

����������� ����������������������������������������������������������������������������������� COVETTE
ROONEY

����������������������������������������������������������������������������������������������� Chief
Judge, OSHRC

DATE: February 1, 2018

����������� Washington,
D.C. ������������������������������������������������������������������������������������������

[1] The Secretary has withdrawn one of the citation items,
Serious Citation 1 Item 1, an alleged violation of 29 C.F.R.
� 1910.67(c)(2)( ii)( �Only trained persons shall
operate an aerial lift�). � (Sec�y Pre- Hr�g Statement at 3; Tr. at 8.) � This citation item is not adjudicated in this
decision. � Cuyahoga Valley Ry. Co. v. United Transp. Union , 474 U.S. 3, 5-6
(1985) (holding that the Secretary's discretion to withdraw citation is
unreviewable).

[2] The conclusion of law regarding the employment
relationship between Respondent and the decedent is set forth in more detail after
the findings of fact in this Decision and Order. �

[3] This address has been used by the Commission for all
mailings in this matter, no other address for Respondent is in the record. � The undersigned finds that this address is
Respondent�s record address as defined in the Commission�s rules. � 29 C.F.R. � 2200.6 (�Record Address�).

[4] On February 16, 2017, when my office called
Respondent to confirm that it declined to electronically file documents for
this matter, Respondent explained to my office that it had no electronic
mailing address. � While the undersigned
accepts Respondent�s explanation, it is also noted that Respondent�s business
card, in evidence as being in use on the day of the incident, contains an
electronic mailing address for Respondent. �
(Ex. C-3.)

[5] This matter had initially been placed under
Simplified Proceedings, however, upon an opposed motion by the Secretary, was
placed on Conventional Proceedings. � See Order dated February 16, 2017
(agreeing with Secretary that cases involving a fatality are not appropriate
for simplified proceedings at the Commission).

[6] For personal privacy reasons, the name of the
decedent has been omitted throughout this decision. �

[7] The order granting the Secretary�s motion was sent
out on September 21, 2017, followed by another issuance of the same order, this
time with attachment, on October 5, 2017. �

[8] As noted in the September 21, 2017 order, Respondent
had until this time been in contact with the Secretary regarding this matter.

[9] Although the Commission recognizes the difficulties a
pro se litigant may face when
participating in the Commission�s proceedings, the Commission still requires
the pro se litigant to follow the
rules and exercise reasonable diligence in the legal proceedings in which it is
taking part. � Sealtite Corp .,
15 BNA OSHC 1130 (No. 88-1431, 1991); Wentzell d/b/a N.E.E.T. Builders , 16 BNA OSHC 1475,
1476 (No. 92-2696, 1993) (stating that �[a] pro
se employer is required to exercise reasonable diligence� [they must]
follow the rules and file responses to a judge�s orders, or
suffer the consequences��).

[10] Commission Rule 54(b) states in pertinent part:

Response to requests. Each matter is deemed admitted unless, within 30 days
after service of the requests or within such shorter or longer time as the
Commission or Judge may allow, the party to whom the requests are directed
serves upon the requesting party a written answer specifically admitting or
denying the matter involved in whole or in part, or asserting that it cannot be
truthfully admitted or denied and setting forth in detail the reasons why this
is so, or an objection, stating in detail the reasons therefor. The response
shall be made under oath or affirmation and signed by the party or his
representative.

29 C.F.R.
� 2200.54(b); see also
Samsonite Corp. , 10 BNA OSHC 1583 (No. 79-5649, 1982) (discussing
Federal Rule of Civil Procedure 36, �Requests for Admission,� in context of
Commission proceedings).

[11] Commission Rule 54(c)
explains what it means to have a matter deemed admitted:

(c) Effect of admission. Any matter
admitted under this section is conclusively established unless the Judge
or Commission on motion permits withdrawal or modification of the admission.
Withdrawal or modification may be permitted when the presentation of the merits
of the case will be subserved thereby, and the party
who obtained the admission fails to satisfy the Commission or Judge that the
withdrawal or modification will prejudice him in presenting his case or defense
on the merits.

29
C.F.R. � 2200.54(c )( emphasis added).

[12] On September 29, 2016, Mr. Davis signed the statement
he gave to CO Roa . �
(Tr. at 40; Ex. C-5.) � About a
month later, on October 31, 2016, CO Roa called Mr.
Davis to ask him a follow up question. �
(Tr. at 42.) � CO Roa wrote down, �There was no harness on his back when he
came off the house from the bucket truck,� on the bottom of the statement. � (Tr. at 41-42.) � CO Roa read this
statement back to Mr. Davis over the phone and asked him whether it was
accurate. � (Tr. at 42-43.) � CO Roa testified
that Mr. Davis told him over the phone that the statement was accurate. � (Tr. at 42.) �
There is no signature or further notation from Mr. Davis near this
additional sentence on the bottom of the statement. � (Tr. at 42; Ex. C-5.)

Ms.
Wright reviewed and signed the statement she gave to CO Roa ,
who wrote down what Ms. Wright said, on November 16, 2016. � (Tr. at 57-60; Ex. C-2.) �

[13] The worksite was located at: 8605 Southwest 107
Street, Miami, Florida, 33156. � (Tr. at
16.)

[14] Ms. Wright, however, admitted that she did not
provide fall protection equipment to the decedent at the worksite on the day of
the incident. � (Admission at � 19;
Tr. at 67-68.) �

[15] The decedent�s wife also testified that the she had a
�Wright Touch tree-trimming T-shirt� that had Respondent�s contact information
and a license number on it. � (Tr. at
22-23; Ex. C-4.) � She testified that her
husband never wore the T-shirt because it did not fit him, but he kept it in
his bag. � (Tr. 23-24.) � She testified that Ms. Wright gave the
decedent the T-shirt and that �they�re supposed to have on T-shirts to match
the company they work for to let people know that he�s working for that
company.� � (Tr. at 24.) � The undersigned notes that the license number
(License # 658116-0) on this T-shirt is the same as that on the business
card and the sign on Respondent�s truck. �
( Exs . C-3, 4, and 7.)

[16] The undersigned finds it irrelevant that the decedent
did not wear this T-shirt. � The salient
point is that Respondent gave the decedent the T-shirt with instructions to
wear it. � The record also establishes
that the decedent stood with Ms. Wright while she presented her business card
to the homeowner while introducing herself and the company; there is no
evidence that the decedent represented to the homeowner that he (the decedent)
was not associated with Respondent at that time.

[17] Wright Touch could also seek review in the D.C.
Circuit. � See 29 U.S.C. � 660(a).