Imco General Construction, Inc., App v. Wa State Dept Of Labor & Industries, Resp ( 2018 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
C-D
C=1 (/)
) Ct7 .."DJ
IMCO GENERAL CONSTRUCTION, ) No. 76301-6-1 C-
INC., ) CD
) DIVISION ONE N.)
-
7:11-
Appellant, ) Cl)r-n
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)
I-
v. ) 1.0 C)V)
-4 CD
) CD-
DEPARTMENT OF LABOR AND ) UNPUBLISHED 07.
INDUSTRIES OF THE STATE OF )
WASHINGTON, ) FILED: January 22, 2018
)
Respondent. )
)
Cox, J. — Washington Industrial Safety and Health Act(WISHA)safety
standards require that employers protect their employees working at the edge of
pits deeper than 10 feet by use of adequate protection systems. In citing an
employer for a serious violation of these standards, the Department of Labor and
Industries has the burden to show that the employer's employees were exposed
to or had access to the unprotected pit's edge. Because the record in this case
shows that the Department met that burden, we affirm.
IMCO contracted to build a water treatment plant in Lynden, Washington.
The project required IMCO to excavate a 25 foot deep construction pit. The pit
was ringed with a rope railing but no guardrail compliant with Department
regulations. It is undisputed that IMCO carpenter Tom Reardon constructed two
No. 76301-6-1/2
staircases for ingress and egress to the pit. And while he was doing so, other
employees installed a pump hose around the pit's edge to prevent water
accumulation.
In response to an anonymous complaint, the Department investigator
Keith Koskela visited this jobsite to conduct a WISHA compliance inspection. He
interviewed employees, tested the strength of the rope at the pit's edge, and took
photographs of the site. As a result of Koskela's visit, the Department cited
IMCO for inadequately protecting its employees from the hazard of falling into the
pit.
IMCO appealed to the Board of Industrial Insurance Appeals (BHA),
arguing that the Department failed to prove that IMCO had exposed its
employees to the hazard of falling into the pit. A BHA administrative hearing
judge affirmed the citation after reviewing evidence and hearing witness
testimony. And the BHA adopted the judge's proposed decision and order after .
denying IMCO's petition for administrative review. IMCO appealed to superior
court, which affirmed the BHA's decision.
IMCO appeals.
EXPOSURE TO FALLING HAZARD
IMCO argues that insufficient evidence supports the Board's finding that
IMCO exposed its employees to the hazard of falling into a 25 foot deep pit on its
work site. We hold that substantial evidence supports the challenged findings.
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No. 76301-6-1/3
WISHA governs our review.' That statute requires that we review the
Board's decision, based on the record before the agency.2 The Board's findings
of fact are conclusive if supported by substantial evidence when viewed in light of
the whole record.3 Evidence is substantial if sufficient to "persuade a reasonable,
person of the truth of the premise."4 We review whether the BHA's findings
support its conclusions.5
"We view the evidence and reasonable inferences in the light most
favorable to the prevailing party — here, the Department."6 Circumstantial
evidence can be as reliable as direct evidence, and a fact finder may make
reasonable inferences on the basis of circumstantial evidence.7 The specific
element at issue in this case, "[e]xposure to a hazard may be established by
circumstantial evidence."5
RCW 49.17.150.
2 J.E. Dunn Nw., Inc. v. Dep't of Labor & Indus., 139 Wn. App. 35, 42, 156,
P.3d 250 (2007).
3 Mid Mountain Contractors, Inc. v. Dep't of Labor & Indus., 136 Wn. App.
1,4, 146 P.3d 1212 (2006).
Id.5 Id.6 Frank Coluccio Constr. Co. v. Dep't of Labor & Indus., 181 Wn. App. 25,
35, 329 P.3d 91 (2014).
7 Faust v. Albertson, 167 Wn.2d 531, 538, 222 P.3d 1208 (2009).
8 Sec'y of Labor v. Marine Power and Equip. Co.,6 O.S.H. Cas.(BNA)
1427, at 5(1978).
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No. 76301-6-1/4
We interpret WISHA statutes and regulations "liberally to achieve their
purpose of providing safe working conditions for workers in Washington."9 And
we give substantial weight to the Department's interpretation of these statutes
and regulations.1°
An employer commits a serious WISHA violation:
if there is a substantial probability that death or serious physical
harm could result from a condition which exists, or from one or
more practices, means, methods, operations, or processes which
have been adopted or are in use in such workplace, unless the
employer did not, and could not with the exercise of reasonable
diligence, know of the presence of the violation.[111
The court previously held that the Department makes out a prima facie
case for a "serious violation" when it proves:
(1)the cited standard applies;(2)the requirements of the standard
were not met;(3)employees were exposed to, or had access to,
the violative condition;(4) the employer knew or, through the
exercise of reasonable diligence, could have known of the violative
condition; and (5) there is a substantial probability that death or
serious physical harm could result from the violative condition.[12]
IMCO does not challenge the Board's findings on elements 1, 2, 4, or 5.
Those findings are thus verities on appea1.13 Rather, IMCO only argues that
9 Frank Coluccio Constr. Co., 181 Wn. App. at 36.
10 Id.
11 RCW 49.17.180(6).
12 Express Constr. Co. v. Dep't of Labor & Indus., 151 Wn. App. 589, 597-
98, 215 P.3d 951 (2009).
13 Mid Mountain Contractors, Inc., 136 Wn. App. at 4.
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No. 76301-6-1/5
substantial evidence fails to support element 3 that IMCO's employees were
exposed to or had access to the falling hazard.
The Department demonstrates that employees were exposed to or had
access to the violative conditions by showing the "reasonable predictability
that, in the course of[the workers'] duties, employees will be, are, or have been
in the zone of danger.'"14 Thus, the supreme court has held that a worker is
neither exposed to nor has access to a violative condition when he must
"consciously and deliberately remove[]" a protective barrier to reach the violative
condition.15
IMCO contends that the Board's findings were insufficient because they
showed only that "the alleged violative condition was close by" because
"operational process did not require any employees to be exposed to a fall
hazard."16 But precedent shows that these findings were sufficient.
Mid Mountain Contractors, Inc. v. Washington State Department of Labor
and Industries17 controls our analysis. In that case, the Department had cited
Mid Mountain Contractors for violating WAC 296-155-657(1)(a).15 That
14 Id. at 5 (quoting Adkins v. Aluminum Co. of America, 110 Wn.2d 128,
147, 750 P.2d 1257, 756 P.2d 142 (1988)).
15 Adkins, 110 Wn.2d at 148.
16 Amended Opening Brief of Appellant IMCO General Construction, Inc.
at 9, 14-15.
17 136 Wn. App. 1,146 P.3d 1212 (2006).
15 Id. at 3.
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regulation required employers to provide systems to protect their excavation
workers from cave-ins." Mid Mountain Contractors appealed.2°
In resolving that appeal, we discussed the testimony of a general laborer
at the site named Vern McCollaum.21 McCollaum was present the day the
citation issued, and had access to the hazard and the relevant zone of danger.22
We took note that "[a]lthough McCollaum was not actually within the zone of
danger, he was working within close proximity, and it is reasonably likely that he
could have walked the short distance and been within the zone of danger."23
Despite McCollaum'S work taking place outside the zone of danger, we
emphasized that "Where was nothing to prevent entering the zone during the
conduct of his normal duties."24 On this basis we affirmed the finding of
exposure, and concluded that Mid Mountain violated WAC 296-155-657(1)(a).25
Here, the Department cited IMCO for seriously violating WAC 296-155-
24611(1)(d). That regulations requires that employers "ensure that the
appropriate fall protection system is provided, installed, and implemented
according to the requirements in this part when employees are exposed to fall
19 Id.
2° Id. at 4.
21 Id. at 7.
22 Id.
23 Id.
24 Id.
25 Id. at 8.
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No. 76301-6-1/7
hazards of 10 feet or more to the ground or lower level, while. . .[e]ngaged in
excavation and trenching operations." The regulation also requires "[flail
protection .. . for employees standing in or working in the affected area of a
trench or excavation exposed to a fall hazard of 10 feet or more."26
IMCO does not contend that the rope surrounding the pit was adequate to
satisfy this regulation, a fact we take as a verity on appea1.27
The BHA found that:
[a]s of August 14, 2014, employees of IMCO General Construction,
Inc. were exposed to or had access to the hazard posed by the
lack of an adequate fall protection system at the perimeter of the
pit, including workers who installed and used the access stairs,
installed braces in the pit, and/or worked in the pit on the auger-
cast pilings. Not all of these employees were directly engaged in
excavation work at the site.128]
The BHA identified numerous facts adduced in its proceeding that support
this finding. It explained that exposure could be proven by circumstantial
evidence. It pointed to Reardon's testimony that he had constructed two
staircases for workers to obtain access to the pit. Employees using those stairs,
or "gather[ing] at the top of the stairs to observe the construction activity below"
as some did, were necessarily exposed to the fall hazard by their proximity to the
edge of the pit. Reardon had further testified that he witnessed employees place
the pump hoses at the perimeter of the pit while he was constructing the stairs.
The BHA made a reasonable inference that the construction of the stairs required
26 WAC 296-155-24611(1)(d)(ii).
27 Mid Mountain Contractors, Inc., 136 Wn. App. at 4.
28 Clerk's Papers at 59.
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No. 76301-6-1/8
the pit already be excavated and, accordingly, the employees installing the hoses
had access to the edge of the pit. The BHA identified as circumstantial evidence
footprints by the pit's edge and a safety jacket hanging on a railing post at the
edge of the pit. And the BHA found that employees engaged in capping the
auger-cast pilings would have had to work on the bottom of the pit without
protection.
This evidence, viewed in the light most favorable to the Department, was
sufficient to support the BHA's finding that IMCO employees were exposed to or
had access to the violative condition. Persuasive federal precedent holds that
the presence of employee equipment and materials at the unguarded pit's edge
provides sufficient circumstantial evidence to show exposure.29
This conforms to Mid Mountain Contractors, Inc. That case stands for the
proposition that employees are exposed to or have access to a violative condition
when, although they work outside the zone of danger, it is reasonably likely that
employees could have obtained access and were not barred from doing so. The
evidence in this case satisfies that standard.
IMCO makes several arguments why the Department's showing of
exposure was insufficient. None are persuasive.
First, IMCO argues that Koskela never saw the pump hose being installed
and thus could not testify whether the employees installing it were exposed or
had access to the falling hazard. Reardon testified that he saw employees
29 Marine Power and Equip. Co.,6 O.S.H. Cas.(BNA) 1427, at 5.
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No. 76301-6-1/9
installing the pump hose at the pit's edge subsequent to excavation. This was
circumstantial evidence of exposure of the employees to the unsafe condition.
No more was required.
Second, IMCO argues that the rope railing had been installed before
excavation. Assuming it had, this would be irrelevant. Even if the employees
installing the railing did their job prior to excavation, other employees had
subsequently been exposed or had access to the unguarded pit. And the time of
the rope's installation does not cure its inadequacy as a protection system.
Third, IMCO argues that employees on the stairs were not exposed
because a protected walkway led to the stairs. This does not bear upon
exposure of those employees once on the stairs, as demonstrated by Reardon's
testimony.
Fourth, IMCO argues that the evidence fails to show that employees were
assigned to work at the pit's edge or had to pass directly thereby to perform their
work. This argument ignores the standard just discussed, and is thus
unpersuasive.
Fifth, IMCO suggests that the employees installing the pump hose were
involved in the excavation and thus would be exempt from the relevant
protections. Not so.
IMCO is correct that employees "[d]irectly involved with the excavation
process and on the ground at the top edge of the excavation" are not entitled to
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No. 76301-6-1/10
the fall protection requirements at issue.3° But under WAC 296-155-650(2), an
excavation is "formed by earth removal."
Here, the BHA found that "the piping activity was not simply a part of the
initial excavation, but was also necessary on an ongoing basis to insure [sic] that
water was removed from the already excavated pit."31 The employees involved
in placing a pump hose to prevent water accumulation were not involved in
removing earth and, accordingly, were not directly involved with the excavation
process.
Sixth, IMCO argues that the Department failed to prove that employees
were exposed to or had access to the pit because it failed to show that IMCO did
not provide alternative safety mechanisms, namely a harnessing system. This
argument does not alter our conclusion.
IMCO raised this argument originally in petitioning for administrative
review before the BHA. Ye in adopting the proposed decision in this matter, the
BIIA declined to make the requested finding that the Department failed to show
the absence of a harnessing system. When the lower tribunal does not make a
written finding, we interpret that absence as adverse to the finding's proponent.32
Accordingly, we conclude t lat this argument is without merit.
30 WAC 296-155-24611(1)(d)(i)(A).
31 Clerk's Papers at 57.
32 Ellerman v. Centerpoint Prepress, Inc., 143 Wn.2d 514, 524, 22 P.3d
795 (2001).
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No. 76301-6-1/11
Seventh, IMCO argues that this court should adopt a standard that the
Occupational Safety Health Review Commission (OSHRC) has applied in
determining exposure. We ecline to do so.
IMCO correctly notes that, given the similarity between WISHA and its
federal counterpart, the Occupational Safety and Health Act(OSHA), courts may
turn for persuasive guidance to federal OSHA cases.33 IMCO cites two cases,
which it contends are persuasive here.
In the first, Secretary of Labor v. Rockwell International Corporation,
Rockwell International Corporation argued that certain machines at its plant did
not violate a machine guarding standard.34 The Secretary of Labor argued that
an employee operating the machines was exposed to injury because, while
standing by the machine, he could hypothetically place his hands beneath a
dangerous descending component.35
The OSHRC explained that the standard only applied "when the point of
operation exposes an employee to injury."36 It noted that "[w]hether the point of
operation exposes an emp oyee to injury must be determined based on the
manner in which the machine functions and how it is operated by the
Asplundh Tree E)pert Co. v. Dep't of Labor & Indus., 145 Wn. App. 52,
60, 185 P.3d 646 (2008).
34 9 O.S.H. Cas.(BNA) 1092 (1980).
35 Id. at 6.
36 Id.
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No. 76301-6-1/12
employees."37 The method of the relevant machine's operation did not involve
the employee placing his ha ids in dangerous proximity to the descending
component.38 The OSHRC easoned that the Secretary of Labor's argument
required impermissible speculation without evidence.39
The second case, Secretary of Labor v. RGM Construction Company,
concerned a violative condition similar to that in this case.4° The Secretary of
Labor had cited RGM Construction Company for, among other violations,
exposing employees to the [Inguarded edge of an open-sided floor or plafform on
part of a bridge.41
The OSHRC explained that it was the Secretary's burden to prove
exposure by:
showing that, during the course of their assigned working duties,
their personal comfort activities on the job, or their normal ingress-
egress to and from their assigned workplaces, employees have
been in a zone of danger or that it is reasonably predictable that
they will be in a zone of danger. . . The zone of danger is
determined by the hazard presented by the violative condition, and
is normally that area surrounding the violative condition that
presents the danger to employees which the standard is intended
to prevent.(421
37 Id.
38 Id.
89 Id.
40 17 O.S.H. Cas.(BNA) 1229 (1995).
41 Id. at 4.
42 Id. at 5.
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No. 76301-6-1/13
The OSHRC went on to conclude that the Secretary had failed to prove exposure
where the surface in question was wide enough to provide "ample room to walk
along the bridge surface without being in danger of falling off the edge."43
Without evidence that employees had walked or engaged in other dangerous
conduct by the edge, exposige was not shown."
These cases are unpersuasive for two reasons. First, we will not take
persuasive guidance from the OSHRC when there is contrary Washington
precedent that controls. As we held in Mid Mountain Contractors, Inc., the
Department meets its burden if it shows that an employee "was working within
close proximity, and it is reasonably likely that he could have walked the short
distance and been within the zone of danger."45 The key inquiry under
Washington law is whether anything "prevent[ed the employee from] entering the
zone during the conduct of his normal duties."46 We have already analyzed the
application of this rule to th s case.
Furthermore, the OSHRC standard would not change our conclusion.
Unlike in Rockwell International Corporation, there was no speculation here,
given the circumstantial ev dence we already discussed. And unlike in RGM
Construction Company, that evidence demonstrated that employees were within
the zone of danger. As Reardon testified, employees had to lay the pump hose
43 Id. at 6.
44 id.
45 136 Wn. App. at 7.
46 Id.
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No. 76301-6-1/14
after the pit had been excavated. Employees also had to use the staircase and
stood around its top unguarded. Thus, they were within the zone of danger.
Under both Rockwell International Corporation and RGM Construction Company,.
exposure was proven.
In its reply brief, IMCO raises additional arguments concerning the identity
of the employees who left tt-e footprints. We decline to reach these as
untimely.47
We affirm the superior court's judgment and order.
I
WE CONCUR:
---r?; cst..li AO" %09-tii\r-eUe, C,
a
47Deutsche Bank Nat. Trust. Co. v. Slotke, 192 Wn. App. 166, 177, 367 •
P.3d 600, review denied, 185 Wn.2d 1037 (2016).
14