|
|
OAH 15-1901-19108-2 |
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE COMMISSIONER OF LABOR AND INDUSTRY
|
Commissioner of Labor and
Industry, Complainant, vs. NOR LLC, d/b/a Respondent. |
FINDINGS OF FACT, CONCLUSIONS,
AND ORDER
|
A hearing in this matter was held on October 15 and 16, 2008, before
Administrative Law Judge Beverly Jones Heydinger, at the Office of
Administrative Hearings,
Rory H.
Foley, Assistant Attorney General, appeared on behalf of the Commissioner of
Labor and Industry, Occupational Safety and Health Administration (Complainant). Richard G. Jensen, Fabyanske, Westra, Hart
& Thomson, P.A., appeared on behalf of NOR LLC, d/b/a Petra Development
Services (Respondent).
1. Did the Respondent violate 29 C.F.R. § 1926.850 (a), by
failing to obtain an appropriate engineering study prior to performing
demolition of a building?
2. Did the Respondent violate 29 C.F.R. §
1926.850 (b), by failing to properly shore or brace a basement wall?
3. Did the Commissioner properly classify the violations
as “willful” and properly calculate the penalty for the violations?
The
Administrative Law Judge concludes that the Respondent did violate 29 C.F.R. §
1926.850, subparts (a) and (b), and that the violations were properly
characterized as “willful,” and caused or contributed to the death of an
employee. The appropriate penalty for
all violations is $50,000.
1.
Mohammad Sabri[1] is
the owner of NOR LLC, d/b/a Petra Development Services (Respondent), a company
that buys property for redevelopment.
Respondent purchased a group of buildings on the southeast corner of
2.
On October 5, 2004,
a concrete wall collapsed in the basement of a building at
3.
On October 7, 2004,
the investigators interviewed employees who were present at the time the wall
collapsed. They stated that they had
been directed by the foreman to dig a shallow trench and pour a footing for a
new wall directly in front of the existing wall. The victim had been digging that trench at the
time of the accident.[3] This account was corroborated by the foreman,
Lhagyal Serdok, at the hearing.[4]
4.
A second employee
was 5 to 6 feet away from the victim, constructing forms for the new wall. A third employee had gone to the first floor
of the adjacent building. When the wall
collapsed, the employee in the basement screamed for help, and others rushed to
the basement to attempt to lift the concrete wall off of the victim, using
boards that were in the basement.[5]
5.
The foreman
arrived at approximately 10:30 a.m. and learned of the accident. He called Mr. Sabri and he directed a person
who was with him to call 911. At 10:43
a.m., the Minneapolis Fire Department received a 911 call. The Department arrived at 10:49 a.m. and
asked everyone to leave the basement.
The victim was not breathing and had no pulse; the Department began
efforts to recover the victim and remove him from the site.[6] Results of the autopsy showed that the cause
of death was multiple blunt force crushing injuries.[7]
6.
MN OSHA assists
the United States Department of Labor with enforcement of OSHA standards. Among its responsibilities is to investigate
worksite accidents. On the day of the
accident, at approximately 1:20 p.m., OSHA investigators, including Michael
Bymers,[8]
went to the accident site to begin their investigation. The investigators introduced themselves to
Mr. Sabri and to Ilaha Teska, the office manager. At the time the OSHA inspectors arrived, the
victim’s body had been recovered and removed, and two
7.
The inspectors
conducted an investigation of the site, but access to the basement was limited
because it was not safe to enter.
Photographs were taken of the adjoining alley and of the basement from
the bottom of the basement stairs. It
was apparent that a piece of the concrete wall on the east side of the basement
had given way and collapsed on the employee.
The inspectors estimated that the piece of concrete was about 3 feet
high, 6 feet wide and 16 inches thick, and weighed about 3,600 pounds. Dirt and a piece of concrete from the alley fell
into the basement when the wall collapsed.[10]
8.
As part of its
investigation, the investigators attempted to determine if an engineering
survey had been completed prior to the commencement of renovation work on
Building 5, and, if so, if procedures had been developed to safely conduct the
demolition or renovation. On the
afternoon prior to the collapse, Craig Oswell, a structural engineer employed
by Ulteig Engineers, had toured Building 5 with Mr. Serdok. The two discussed the deteriorated condition
of the basement wall. Mr. Oswell told
the OSHA investigators that he provided a sketch to the foreman that showed how
the trench should be dug.[11] Mr. Serdok confirmed that he had met with the
engineer and received the sketch and that he had given the sketch to the
workers, but said that the sketch had been buried in the debris when the
building was demolished following the accident.[12]
9.
There was no evidence
that any shoring or bracing had been installed to prevent the wall from
collapsing.[13]
Mr. Serdok confirmed that none had been
installed, and he denied that the engineer had told him to shore or brace the
wall.[14]
10.
Inspection of the
basement wall showed cracking, crumbling and moisture, and the floor joists on
the east end showed water damage. The
floor joists also showed evidence of charring.
On the east end, newer wood had been added to the ends of the joists as
cheaters. The joists projected part way
over the foundation wall, but were not resting on the wall.[15]
11.
Mr. Oswell told
the investigators that Ulteig Engineers had not performed a survey or drawn up
procedures for the demolition or renovation of Building 5 and that he had been
on the premises to collect information to complete a proposal. Correspondence from Ulteig Engineers to Petra
Development confirms that information.
On September 9, 2004, Ulteig Engineers had submitted a proposal to
conduct a structural review of an existing three-story building at
12.
On October 9, 2004,
following the collapse of Building 5, Ulteig Engineers submitted a proposal to
the Respondent to perform the structural engineering design and detailing for
the “proposed building complex at the southeast corner of Cedar Avenue and East
Lake Street, to replace a series of demolished buildings, incorporate one
existing single-story building, and include a new building to connect them all
together.”[18] The proposal stated:
It is our understanding that the following are
applicable: The owner had previously
intended to salvage the existing buildings and renovate them as required to
form the complex. The owner has recently
decided to demolish the buildings facing
The proposal included evaluation of the property,
completion of structural engineering calculations and preparation of certified
structural drawings. The proposal
spelled out three phases at a total cost of $13,000, and it contained a
proposed timeline.[19]
13.
In a letter dated
October 11, 2004, Ulteig Engineers reported the results of its site assessment
for the “six buildings of varying construction” and detailed the condition of
the buildings. Attached to the letter is
a drawing of the site, identifying the six buildings, including Building #5 and
Building #1. The report included an
assessment of Building #1, the building covered by the proposal dated September
9, 2004, pointing out that framing and foundation conditions made its safety
questionable. As for Building 5, it
stated:
Building #5 is in a state of collapse. The east foundation wall has failed, … [t]he
remainder of the foundation, as well as the floor slab, floor framing, and roof
framing are in a state of near collapse ….
Given its current condition, the building is in immediate need of
shoring, however, its condition is such that the actual act of installing it
could result in further movement and potential collapse.[20]
14.
An invoice from
Ulteig Engineers dated November 1, 2004, shows the entire contract amount, and
a bill for completion of approximately one third of the contracted work. The invoice states that the work is for the “
15.
Mr. Sabri claimed
that there were engineering designs with detailed procedures in place for all
of the buildings in the complex, including Building #5, at the time of the
accident, but he offered no documents or any witness to support his claim. No other witness had seen the designs or
procedures or could state that the designs and procedures had been provided to
the work crew at the time of the accident.
Mr. Serdok received only the sketch that was lost in the collapse.[22]
16.
Mr. Sabri’s claim
that the September 9, 2004, proposal from Ulteig Engineers addressed all of the
buildings on the corner of Lake Street and Cedar, and that the reference to
1825 Lake Street in that letter was the commonly used descriptor for the entire
complex, is not consistent with the contents of Ulteig’s September 9 letter or
with the subsequent letters of October 9 and October 11, 2004.
17.
Mr. Sabri claimed
that there was no bracing or shoring of the collapsed wall because the
engineering plans did not call for bracing or shoring, but he offered no supporting
documents or testimony.
18.
It is unclear
whether the wall collapsed because of the trenching and other work in the
basement, or because there was a cavity under the pavement in the adjoining
alley. Donn N. Peterson, a forensic
engineer, visited the site on the day of the accident and on October 11,
2004. In his report, dated October 21,
2004, he described the accident:
At approximately 10:15 a.m., a top portion of the
basement east concrete wall collapsed falling inward on [the victim]. A section of asphalt displaced from the
adjacent alley and came to rest in the void left by the displaced concrete wall
sections and displaced fill material.[23]
19.
In his report,
Mr. Peterson stated that the displaced section of alley asphalt was
approximately two feet wide and fourteen feet long, leaving a hole in the alley
surface adjacent to the basement east wall.
He noted that there were several significant cracks in the remaining
asphalt alley and that the interior surfaces of the standing concrete walls of
the basement were crumbling, cracked and deteriorated. Much of the displaced fill material beneath
the alley was dry and granular, but near an exposed section of pipe, the soil
was quite damp, and the floor joists had significant water stains at the east
ends. He also saw evidence of charred
wood from a previous fire in the wall.
He concluded that the deteriorated wall, the cracked alley asphalt, and
a cavity under the alley, all contributed to the failure of the wall, and that
the condition was not easily detected by the building owner or the
employees. However, Mr. Peterson also
concluded that the problem, including the cavity, could have been inferred by a
knowledgeable person.[24]
20.
On March 5, 2005,
MN OSHA issued Citations and Notifications of Penalty for eight violations. On
March 21, 2005, MN OSHA received the Respondent’s notice of contest, not contesting
Citation 2, Item 1, but contesting the other citations and the penalties
imposed. On June 8, 2005, MN OSHA filed
and served a Complaint on Respondent, seeking an order affirming the contested citations
and penalties for the remaining seven citations.[25]
21.
At the beginning
of the contested case hearing, the Respondent dropped its objections to five of
the remaining violations: Citation 2, items 2a, 2b, 3, 4a and 4b. The hearing addressed the remaining two
violations, Citation 1, Items 1 and 2.
22.
Citation 1, Item
1 alleged a violation of 29 C.F.R. § 1926.850 (a) in that:
An engineering survey was not performed by a competent
person to determine the conditions of the framing floors and walls and the
possibility of unplanned collapse of any portion of the structure prior to
permitting employees to start demolition operations.
The
citation alleged that no survey was performed to determine the condition of the
concrete foundation wall prior to the employees starting demolition of the
building. The violation was classified
as “willful,” and MN OSHA assessed a penalty of $50,000.00.[26]
23.
Citation 1, Item
2 alleged a violation of 29 C.F.R. § 1926.850 (b) in that: “The walls or floors were not shored or
braced where employee(s) were required to work within a damaged structure to be
demolished.” The citation alleged there
was no lateral bracing or shoring for the concrete wall, which had sustained
damage from fire and water. The
violation was classified as “willful,” and MN OSHA assessed a penalty of
$50,000.00.[27]
24.
In order to
determine the severity level of each violation and the associated penalty, MN
OSHA is guided by the MN OSHA Field Compliance Manual.[28] Exhibit 3a sets forth the steps that MN OSHA
used to set the level of hazard and penalty for each violation.[29]
25.
A violation may
be classified as “willful” if the evidence shows that the employer:
(1)
Committed an
intentional and knowing violation of the Act; and
(2)
Was aware that a
hazardous condition existed and did not make a reasonable effort to eliminate
the condition; and
(3)
Was aware that
the condition violated a standard or other obligation of the Act, and was aware
of the requirements of the standard or other obligation violated.
It is not necessary that the violation be committed
with a bad purpose or an evil intent to be deemed willful. It is sufficient that the violation was
deliberate, voluntary or intentional as distinguished from inadvertent,
accidental or ordinarily negligent.[30]
26.
In reviewing a
violation to determine if it is willful, MN OSHA:
must ascertain that the employer had specific knowledge of the standard, or its
requirements, or of the particularly hazardous working conditions to which the
employees were exposed. The action or
lack of action by the employer who has specific knowledge defines the degree of
the willfulness.[31]
The Field Compliance Manual directs MN OSHA to
consider a variety of evidence,[32] and
several factors applied to each violation.[33]
27.
Respondent had no
written evidence that an engineering survey had been performed. Respondent’s failure to obtain the required
engineering study was a willful violation, contributing to the death of
Respondent’s employee, because Respondent was in the construction business and knew
of the requirement to obtain an engineering survey. Mr. Sabri acknowledged at the hearing that an
engineering study was required. The
hazardous condition of the basement, including the damage from fire and water
and poor condition of the joists, was apparent from visual inspection. The site foreman had directed the employees
to begin work on the inside wall. There
was no evidence that the site foreman or employees had been specifically
trained to work in a damaged basement.[34]
28.
Respondent
required its employees to work in a damaged basement without shoring or bracing
of the wall. Respondent’s failure to
shore or brace the basement walls prior to beginning restoration was a willful
violation, contributing to the death of Respondent’s employee.[35] It was apparent from visual inspection that
the structure had been damaged by fire and water. As a company with experience in the
construction business, the Respondent knew that expert advice was needed to
determine whether shoring or bracing was required before commencing work on the
basement. The site foreman acknowledged that he did not have the training or
background to read engineering drawings or know when shoring or bracing a wall
was required, that he knew the basement wall had deteriorated, and that he
toured the basement with an engineer to get direction. He also acknowledged that he had directed the
employees to begin construction of the new concrete wall and had provided them
with a hand sketch showing where to dig.[36]
29.
The Field
Compliance Manual guides the determination of the appropriate fine for violations. The assigned severity level for each offense
was “F,” which applies to injuries resulting in death. The employee exposure was rated “2” because 2
to 10 employees were exposed to the hazard during their ordinary work assignment. The employee proximity was rated “2” because
the employee was in the hazard area during the normal work assignment. The duration of the hazard was rated “1”
because the exposure was between 10% and 50% of the normal work day, and rated
“0” for no adverse work conditions or violations of the same standard.[37] On the matrix, the unadjusted penalty was
$5000, with a multiplier of “10” for the factors above.[38]
30.
The unadjusted
penalty may be modified to reflect other factors outlined in the Manual. In this instance MN OSHA applied a credit of
55% because the Respondent had fewer than 25 employees.[39] The Manual sets out a separate method of
calculation for willful violations. In
such instances, the severity factor is high but a greater size credit is
applied, an 80 percent reduction for companies of 10 or fewer employees.[40] Respondent had fewer than 10 employees.
31.
Based on the
factors in the penalty matrix, the fine for Citation 1, Item 1 and Citation 1,
Item 2, would be $10,000 for each of the two violations.
32.
The fines for the
uncontested citations were as follows:
Citation 2, Item 1, no penalty; Citation 2, Item 2a, $900.00; Citation 2, Item 2b, no penalty; Citation 2,
Item 3, $2250.00; Citation 2, Item 4a, $1350.00; Citation 2, Item 4b, no
penalty. The total penalty for the citations
that were not contested is $4,500.
33.
Thus, based on
the matrix and uncontested penalties, the penalties total $24,500.
34.
Pursuant to Minn.
Stat. § 182.666, subd. 2a, the minimum total nonnegotiable fine to be
assessed for all citations connected to the death of an employee, if there is a
willful violation, is $50,000, regardless of the penalty calculation derived
from the Field Compliance Manual matrix.[41]
35.
Any Finding of
Fact more properly termed as a Conclusion is hereby adopted as a Conclusion.
Based upon the foregoing Findings of Fact, the
Administrative Law Judge makes the following:
1.
The Commissioner
of Labor and Industry and the Administrative Law Judge have jurisdiction in
this matter pursuant to Minn. Stat. §§ 182.661, subd. 3, and 14.50.
2.
The Commissioner
of Labor and Industry gave Respondent proper notice of the hearing and
fulfilled all relevant substantive and procedural requirements of statute and
rule.
3.
The Respondent is
an employer, as defined in Minn. Stat. § 182.651, subd. 7.
4.
The Complainant
has the burden to establish by a preponderance of the evidence the occupational
safety and health violation charged and the appropriateness of the penalty
proposed.
5.
Citation 1, Item
1, alleged a violation of 29 C.F.R. §
1926.850 (a), which provides:
Prior to permitting employees to start demolition
operations, an engineering survey shall be made, by a competent person, of the
structure to determine the condition of the framing, floors, and walls, and
possibility of unplanned collapse of any portion of the structure. Any adjacent structure where employees may be
exposed shall also be similarly checked.
The employer shall have in writing evidence that such a survey has been
performed.
The Complainant has demonstrated by a preponderance of
the evidence that Respondent violated 29 C.F.R. § 1926.850 (a) by having no
engineering survey of the structure and no written evidence that such a survey
had been performed and that the violation was willful and contributed to the
death of an employee.
6.
Citation 1, Item
2, alleged a violation of 29 C.F.R. § 1926.850 (b), which provides: “When employees are required to work within a
structure to be demolished which has been damaged by fire, flood, explosion, or
other cause, the walls or floor shall be shored or braced.” The Complainant has demonstrated by a
preponderance of the evidence that Respondent violated 29 C.F.R. § 1926.850 (b)
by failing to properly shore or brace a basement wall damaged by fire and water
and that the violation was willful and contributed to the death of an employee.
7.
The Complainant
failed to show that the appropriate penalty for each of the two individual
items was $50,000. Respondent demonstrated
that with the appropriate credit for the small size of the employer, the
appropriate penalty for each of the two individual violations calculated under
the penalty matrix was $10,000.[42]
8.
The total fine
for the uncontested citations is $4,500.00.[43]
9.
The minimum
penalty to be assessed for all citations connected to the death of an employee
is $50,000 if there is a willful violation that causes or contributes to the employee’s
death.[44] Because the Complainant has demonstrated that
the Citation 1, Items 1 and 2, caused or were connected to the death of an
employee and were willful, the minimum penalty should be $50,000.
Based upon the foregoing Conclusions, the
Administrative Law Judge makes the following:
IT IS HEREBY ORDERED that:
1.
Citation #1,
Items 1 and 2, of the Citation and Notification issued to NOR LLC d/b/a Petra
Development Services are AFFIRMED.
2.
The appropriate
penalty for all violations related to the death of Respondent’s employee on
October 5, 2004, at the worksite at
3.
The Respondent
shall immediately pay a total penalty of $50,000 to the Minnesota Department of
Labor and Industry at the following address:
Dated: December 8, 2008
|
s/Beverly
Jones Heydinger |
|
BEVERLY
JONES HEYDINGER |
|
Administrative
Law Judge |
Reported: Digitally recorded
The Complainant has the burden to
demonstrate by a preponderance of the evidence that the two alleged uncontested
violations occurred, that the violations were willful, as that term is defined for
OSHA enforcement, and that the Complainant correctly calculated the appropriate
penalty for all violations related to the accident at Respondent’s worksite on
October 5, 2004. The Complainant has
demonstrated that the violations occurred, that they were willful and caused or
contributed to the death of an employee, but Complainant misapplied the
statutory language that set the minimum penalty for the violations.
The Complainant substantiated each of the alleged
violations. First, the Respondent failed
to have written evidence that an engineering survey had been performed before
work began on Building 5. Mr. Sabri
claimed that he had hired Ulteig Engineers in September 2004 to conduct
engineering surveys of all of the properties in the complex at Lake Street and
Cedar Avenue and that the proposed complex was referred to as 1825 Lake Street
in its entirety. Even if the complex was
colloquially referred to as 1825 Lake Street, it is plain from the language of
the September 9, 2004, Ulteig Engineers’ proposal that it was addressing the
condition of only one building, the three-story building at the 1825 Lake
Street address, and not the entire complex.
There was no documentary evidence that a survey had been performed for
Mr. Sabri claimed that Mr. Oswell may have been
protecting his own self-interest by denying that he had completed an
engineering study. However, regardless
of what Mr. Oswell may have said to Mr. Serdok or to the investigator, the
Respondent was unable to provide any written evidence of an engineering survey
or drawings to back up its claims. The lack of any such documents supports the
statements made by Mr. Oswell and Mr. Serdok that there was no engineering
study. A hand-drawn sketch of one
portion of the basement is not “written evidence of a survey,” as the
applicable regulations require.
Mr. Sabri claimed that he hired engineers to tell him
what to do because he is not an engineer and that he directed his employees to
do what the engineers told them. As Mr. Serdok
acknowledged, he was not an engineer and was not competent to read engineering
surveys and drawings. On the day prior
to the accident, it is undisputed that the Respondent called an engineer to the
building site. Mr. Serdok recognized that the basement was deteriorated and
showed the damage to the engineer. If
the foreman was not competent to determine whether shoring or bracing was
needed, Respondent as the employer had a duty to retain someone who could make
the determination. In defense of the
second alleged violation, Mr. Sabri claimed that Mr. Oswell told the foreman
how to dig a trench beside the existing, crumbling wall, and how to place forms
to pour a new wall, but did not direct the foreman to install shoring and
bracing. Mr. Sabri claimed that the
hand-drawn sketch did not include shoring or bracing and thus, the Respondent
concluded that none was required. However, given the testimony of both Mr. Sabri
and Mr. Serdok that they were not competent to make that determination, the
Respondent was required to retain someone who was.
Mr. Oswell told the inspectors that, at the time of
the visit, he was collecting information to develop Ulteig Engineer’s proposal
for an engineering survey, and that he had clearly stated during his visit that
bracing and shoring of the wall was required.
Mr. Serdok could not recall that Mr. Oswell had discussed shoring
and bracing the wall, but he acknowledged that he had not seen any engineering
survey of the site or formal drawings.
Regardless of whether Mr. Oswell told Mr. Serdok that
shoring and bracing was needed, the condition of the basement, with obvious evidence
of fire and water damage, would alert a competent person that shoring and
bracing was required. Respondent failed
to have either a competent employee assess the basement and arrange for the
necessary shoring and bracing or to obtain an engineering survey. It is insufficient to claim that an
admittedly incompetent employee did not know that shoring or bracing was
required or to rely on the alleged representation of a person who had not completed
an engineering survey. Contrary to
Respondent’s assertion, digging a trench to pour a new wall does not support,
shore or brace the old wall.
The OSHA investigator, Mr. Bymers, disagreed with Mr.
Peterson’s conclusion that there was a cavity under the alley that contributed
to the collapse of the wall. However,
the actual cause of the wall collapse is not material to this proceeding, since
Mr. Peterson agreed that a knowledgeable person could have inferred the problem
from the condition of the alley pavement.
Also, Mr. Peterson noted the damaged, deteriorated condition of the
basement, including water damage and charring.
Thus, Mr. Peterson’s report supports both of the violations.
The Complainant justified its determination that the violations
were willful. As the photos show, the
hazardous condition of Building 5 was obvious, and the Respondent’s employees
were directed to enter the basement and dig a trench next to the wall. The Respondent was ordinarily engaged in the
construction, renovation and rehabilitation of buildings and is presumed to
know the applicable OSHA standards. Mr.
Sabri’s testimony demonstrated that he was aware of the requirement to obtain
an engineering study and also demonstrated that he was aware that his foreman
had little knowledge of the applicable OSHA requirements. The testimony also demonstrated that
Respondent was aware of the deteriorated condition of the basement in Building
5. The Respondent offered no testimony
that its employees had been trained to handle demolition or remodeling
safely. Rather, Mr. Sabri testified that
he told his employees to do what the engineers directed, and then failed to
retain engineers to provide clear, written direction. Each of these facts supports the Complainant’s
determination that both violations were willful.
Several of the citations were
ultimately uncontested and total $4500. MN
OSHA assessed a fine of $50,000 for each of the two contested citations,
relying upon the language of Minn. Stat. § 182.666, subd. 2a (a), which states
that if any willful violation “contributes
to the death of an employee, the minimum total non-negotiable fine which shall
be assessed for all citations connected to the death of an employee is
$50,000.”[46] The Respondent’s interpretation, that the
total minimum penalty for all the citations is $50,000, rather than $50,000 for
each willful violation, is consistent with the specific wording of the statute. The Complainant contends that “all citations”
should be read to mean “each citation,” but it has not offered any authority
for this position, and that interpretation is not logical. The Respondent’s reading is both logical and consistent
with the plain meaning of the words in the statute. There may be circumstances, as in this case,
where there were a number of violations, but the total penalty for all of them,
calculated individually, does not rise to $50,000. It is reasonable that the Legislature would
have intended that any accident leading to the death of an employee and
involving willful conduct should result in a fine of at least $50,000.
The Complainant has made no attempt to
argue that it had a basis to depart from the minimum required fine. In some cases, there could be extenuating
circumstances that would warrant such a departure, or there may be cases where
the total fines for all citations involving a fatality would exceed
$50,000. The statute would permit such
upward departures. However, in this
case, no such arguments were made, and the total for the violations
individually does not exceed $50,000.
The most straightforward interpretation of the statute, applying its
plain meaning, limits the appropriate fine in this case to $50,000.
[1] In the investigative report, the owner was listed as Hamoudi Sabri.
[2] Testimony (Test.) of Mohammad Sabri. A sketch of the buildings is attached to Ex. 12.
[3] Ex. 4.
[4] At the time of the accident and investigation, Mr. Serdok was known as Dhindar Lama.
[5] Ex. 4.
[6]
[7]
[8] Mr. Bymers is an experienced civil engineer. Ex. 1.
[9] Ex. 3; Test. of Michael Bymers.
[10] Ex. 3 at 4, photos at 12, 16, 24, 25, 27, 28, 30, 34; Ex. 4.
[11] Ex. 4.
[12] Test. of Serdok.
[13] See Ex. 3, photos at 27, 28, 34, 39, 40.
[14] Test. of Serdok.
[15] Ex. 4 at 2; Ex. 3, photos at 36, 37, 39.
[16] Ex. 8.
[17] Ex. 16.
[18] Ex. 7.
[19]
[20] Ex. 12.
[21] Ex. 17.
[22] Test. of L. Serdok; Test. of M. Bymers.
[23] Ex. 19.
[24]
[25] Attachment to the Notice and Order for Prehearing Conference, issued August 9, 2007.
[26] Complaint, Ex. A, attached to the Notice and Order for Prehearing Conference.
[27]
[28] Ex. 14.
[29]
[30] Ex. 14 at IV-12-13 (emphasis in original).
[31] Ex. 3a at 3; Ex. 14 at IV-12.
[32] Ex. 14 at IV-13.
[33] Ex. 3a at 3 and 6.
[34] Test. of M. Bymers; Ex. 19; Ex. 14 at IV-13.
[35] Ex. 3a at 5-6.
[36] Test. of L. Serdok.
[37] Ex. 14 at VI 1-7.
[38] Ex. 3a at 3 and 6.
[39] Ex. 14 at VI 8-9.
[40] Ex. 14 at VI 16-17.
[41] See also Ex. 14 at VI-17.
[42] Compare Ex. 14, VI-9 (55% credit) and VI-17 (80% credit) for small employers.
[43] Complaint dated June 8, 2005, attached to Notice and Order for Prehearing Conference, dated August 9, 2007.
[44]
[45] References are to 2008 Minnesota Statutes.
[46] See also, Ex. 14 at VI-18.