An administrative law judge of the Occupational Safety and Health Review Commission affirmed a serious citation and a $9,054 penalty against a steel erection company after an employee suffered three broken ribs and a partially collapsed lung after falling from an unsecured platform.

The U.S. Occupational Safety and Health Administration inspected Magnum Contracting Inc.’s worksite in Fargo, North Dakota, on Jan. 24, 2018, and alleged one serious violation of the Occupational Safety and Health Act for using a forklift to support an unsecured platform and moving a forklift horizontally while it was occupied, which the employer contested, according to review commission documents in Secretary of Labor v. Magnum Contracting Inc. released on Friday.

But the law judge found that the citation was properly classified as serious and rejected the employer’s unpreventable employee misconduct defense after finding that the material presented “does not demonstrate a clear and explicit work rule designed to prevent the violation.”

To establish an unpreventable employee misconduct defense, the employer must show it has established work rules designed to prevent the violation, adequately communicated those rules to its employees, taken steps to discover violations and effectively enforced the rules when violations have been discovered. Magnum does not have a work rule prohibiting driving forklifts while employees are in work platforms or requiring the platforms to be secured to the forklifts and there was no evidence that the foreman, who was working alongside the injured worker, received training on elevating personnel with forklifts, according to review commission documents.

“When the alleged misconduct is that of a supervisor, the proof of ‘unpreventable employee misconduct’ is more rigorous and more difficult to establish since it is the supervisor’s duty to protect the safety of employees under his supervision,” the law judge stated, citing previous review commission cases. “Involvement by a supervisor in a violation is ‘strong evidence that the employer’s safety program was lax.’ An effective work rule must be designed to prevent the violation or ‘be clear enough to eliminate employee exposure to the hazard covered by the standard.’”

The employer originally stipulated there was no work rule, but later presented a safety manual containing a safety rule prohibiting the actions that led to the incident. The manual was discovered almost eight months after the accident and seven months after filing the contest notification, the law judge noted.

“The manner and timing in which the safety rules were discussed and produced gives the impression the rules were a recently remembered written formality rather than a clearly communicated and practiced work rule,” the law judge stated. The employer’s “seeming unfamiliarity with its own alleged work rule creates a reasonable inference that the work rule was not effective or clearly communicated.”

The administrative law judge’s decision became a final order of the review commission on Friday.

“At this time, we haven’t really made a decision” on whether to appeal the ruling, said David Enget, the safety consultant for Magnum Contracting who represented the company.