Automated Summary
Key Facts
The Commissioner of Vermont Department of Labor appealed a VOSHA Review Board decision that vacated a hazard citation against A.C.T. Roofing, LLC. The citation stemmed from a September 13, 2023 workplace incident where employee Dennis Descheneau fell from a roof and sustained serious injury. The Board had determined Dennis was not an employee of ACT, but the Commissioner argued ACT was the controlling contractor at the worksite. The Superior Court reversed the Board's decision, finding the waiver issue was resolved by the pleadings, and reinstated the citation for violating 29 C.F.R. 1926.501(b)(13) regarding fall protection.
Issues
- The Board vacated the hazard citation because it concluded there was insufficient evidence to support the hearing officer's conclusion that Dennis Descheneau was an employee of A.C.T. Roofing rather than an independent contractor or subcontractor. The hearing officer had concluded that ACT hired Dennis to do roofing work, determined the manner and means by which the work would be accomplished, and paid Dennis for the work he did. The Commissioner argued that the Board erred in this factual determination.
- The Commissioner appealed the Board's decision vacating a hazard citation, arguing that the Board erred in concluding that the Commissioner waived its argument that A.C.T. Roofing, LLC was the controlling contractor at the worksite. The Commissioner contends that as the controlling contractor, ACT was specifically obligated to comply with 29 C.F.R. 1926.501(b)(13) for the benefit of everyone working on the job site. The court found that this issue was resolved by the pleadings since the Commissioner's complaint alleged and ACT did not dispute that ACT was the controlling contractor.
Holdings
The Vermont Superior Court reversed the VOSHA Review Board's decision vacating a hazard citation against A.C.T. Roofing, LLC. The court held that the Board erred in concluding that the Commissioner waived its argument that ACT was the controlling contractor at the worksite, as this issue was resolved by the pleadings. Consequently, the citation and penalty for violating 29 C.F.R. 1926.501(b)(13) regarding fall protection are reinstated.
Remedies
The court reversed the VOSHA Review Board's decision and reinstated the hazard citation and penalty against A.C.T. Roofing LLC for violating 29 C.F.R. 1926.501(b)(13)
Legal Principles
The court applies the substantial evidence standard for reviewing factual determinations under 21 V.S.A. § 227(a), where Board findings supported by substantial evidence are conclusive. Questions of law are reviewed de novo. The court also applies the rule that allegations in a complaint not denied in the answer shall be deemed admitted under VOSHA § 2200.34(b)(2).
Precedent Name
- Solis v. Summit Contractors, Inc.
- Green Mountain Power Corp. v. Comm'r of Lab. & Indus.
- Comm'r of Lab. v. Eustis Cable Enters., LTD
- Universal Const. Co. v. Occupational Safety & Health Rev. Comm'n
Cited Statute
- Federal regulations
- Vermont Statutes Annotated
Judge Name
Benjamin D. Battles
Passage Text
- With respect to the first argument, the Commissioner argues that a distinction exists between a general duty and a specific duty citation. Vermont's Occupational Health Safety Act (VOSHA) is patterned after its federal counterpart (OSHA). Each employer has a duty to comply with specific standards promulgated, and a general duty to furnish his employees with a place of employment that is free from recognized hazards that are causing or are likely to cause death or significant physical harm to his employees.
- The court accordingly concludes that the Board erred by determining that the Commissioner waived its argument that ACT was the controlling contractor. That issue was resolved by the pleadings. The court further concludes, as the Board correctly acknowledged, that ACT's status as a controlling contractor required it to comply with Section 29 C.F.R. 1926.501(b)(13) for the benefit of everyone working on the worksite.
- The decision of the VOSHA Review Board is REVERSED and the citation and penalty against A.C.T. Roofing LLC for violating 29 C.F.R. 1926.501(b)(13) is reinstated.