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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 1793 September Term, 1995 ___________________________________

BRAGUNIER MASONRY CONTRACTORS, INC. v. MARYLAND COMMISSIONER OF LABOR AND INDUSTRY

___________________________________ Wenner, Eyler, Alpert, Paul E. (Retired, specially assigned), JJ. ____________________________________ Opinion by Eyler, J. ____________________________________ Filed: October 31, 1996

Bragunier Masonry Contractors, Inc., appellant, was issued a citation by the Maryland Occupational Safety & Health Administration (MOSH) for violation of a work-place safety standard. Appellant asserts that the Commissioner of Labor &

Industry, appellee, committed procedural legal error in reviewing a factual finding by the administrative law judge (ALJ) that had not been specified for review by either appellant or appellee and committed substantive legal error by erroneously interpreting the law applicable to the factual findings. Appellant appeals from a

judgment entered by the Circuit Court for Washington County affirming appellee's ruling and presents two questions for our consideration. I. Whether the Circuit Court erred in affirming the Commissioner's reopening and adjudication of a legal issue that was not raised by either of the parties or the Commissioner on appeal from the Administrative Law Judge's decision. Whether the Circuit Court erred in affirming the Commissioner's misapplication of the Anning-Johnson/Grossman rule.1

II.

Finding no error, we shall affirm the judgment. I.

The reference is to an affirmative defense derived from Anning-Johnson Company, 4 OSHC 1193 (BNA) (1976), OSAHRC LEXIS 527 (1976), and Grossman Steel & Aluminum Corp., 4 OSHC 1175 (BNA) (1976), OSAHRC LEXIS 528 (1976). Both are published opinions of the United States Occupational Safety and Health Review Commission ("Commission"), the agency empowered to adjudicate OSHA hearings. 1

1

Facts Appellant was a masonry subcontractor working at a construction site in Hagerstown, Maryland. After the concrete

floors were poured, sections of steel reinforcing bars (rebar) were left protruding twenty-two to twenty-five and one half inches out of the concrete at evenly spaced intervals, to be used in securing the interior walls to the floor. Because rebar

exposed in this fashion presents a potential risk of causing injury, MOSH guidelines require the bars to be "capped" pursuant

to 29 C.F.R.

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