Metier Construction, Inc. v. Dept Of Labor & Industries ( 2019 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
METIER CONSTRUCTION, INC., No. 78172-3-1
Appellant,
V. UNPUBLISHED OPINION
DEPARTMENT OF LABOR AND
INDUSTRIES,
FILED: April 15, 2019
SCHINDLER, J. — Metier Construction Inc. stacked drywall sheets in a hallway of
an apartment unit under construction. The drywall reduced the width of the only exit.
The Department of Labor and Industries cited Metier for violation of the Washington
Industrial Safety and Health Act of 1973, chapter 49.17 RCW. The Board of Industrial
Insurance Appeals affirmed the citations and the superior court affirmed the decision of
the board. We affirm.
FACTS
Metier Construction Inc. was the framing and drywall subcontractor at the
construction site of an apartment building in Seattle. Metier instructed the drywall
supplier to stack 14 "drywall sheets" in the hallway of an unfinished second-floor unit.
One sheet of drywall was 12 feet long, 4 feet 6 inches wide, and 5/8 inches thick and
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weighed approximately 106 pounds. The drywall sheets were stacked "on their edge"
vertically against the wall in the hallway of the apartment. The hallway was the only
means for workers to exit the apartment unit.
On September 24, 2015, the Department of Labor and Industries (Department)
safety and health compliance officer Javier Sarmiento was at the construction site.
Sarmiento learned an electrical subcontractor had been injured when the drywall stack
fell over and broke his left leg. Sarmiento took measurements and photographs of the
drywall and hallway, reviewed documents, and interviewed employees who worked for
the general contractor CHINN Construction LLC, the subcontractor Metier, and the
electrical subcontractor.
On December 15, 2015, the Department issued a citation and notice of
assessment to Metier for two "serious" violations and one "general" violation:
Violation 1 Item 1 Violation Type: Serious
WAC 296-155-265(4)(a)
As a hazard creating contractor, the employer did not ensure that exit
routes were not obstructed or adversely affected to provide a safe egress
for all employees in the building and that a 28 inch width for egress was
maintained. Metier construction had stacked and stored drywall in an exit
route reducing the exit route width to approximately 18 inches. Exits
should be clear and free of obstacles in case employees need to exit the
building and give enough clearance to exit if needed during an
emergency.
Aisle walkways with less than 28 inch width of clear space to fit through
created a high hazard in an emergency, which could cause serious
injuries and/or broken bones or permanent disability.
Violation 1 Item 2 Violation Type: Serious
WAC 296-155-325(1)(a)
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As a hazard creating contractor, the employer did not ensure that storage
of construction material shall not create a hazard. The drywall stack was
standing on the edge and wasn't secure against falling or collapsing, as a
result one employee was injured when the drywall stack collapsed onto his
left leg. At least one employee was exposed to crushing hazards type
injuries in the event of falling over, which could result in broken bones or
permanent disability.
Violation 2 Item 1 Violation Type: General
WAC 296-155-110(9)(b)
The employer did not ensure that walk-around safety inspections were
documented and available for inspection by personnel of the department.
The weekly walk-around safety inspections were not documented at
Metier's Construction worksite. No walk-around safety inspection
documentation was provided by the employer.[1]
Metier appealed the citation and notice of assessment to the Department. The
Department issued a "Corrective Notice of Redetermination"(CNR)and affirmed the
violations. Metier appealed the CNR to the Board of Industrial Insurance Appeals
(Board). The Department amended the citation against Metier, reduced Violation 1 Item
1 from a "serious" to a "general" violation, and vacated Violation 1 Item 2.
A number of witnesses testified at the two-day hearing before an industrial
appeals judge (IAJ), including Sarmiento, Metier foreperson Erick Dominguez, Metier
metal framer Aron Diaz, and Metier workplace safety expert Kurt Stranne. Sarmiento
testified the overall width of the hallway near the apartment unit doorway was 38 /
12
inches and the angled stack of drywall reduced the width to 23% inches. Sarmiento
testified he measured the hallway width to be 38 1/2 inches, reduced the hallway width
3/4 inches, and reduced the
by subtracting the thickness of 14 sheets of drywall at 8
1 Because Metier does not appeal the Board decision regarding Violation 2 Item 1, we do not
address the facts related to that violation.
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No. 78172-3-1/4
hallway width by 6 more inches at the ground level to allow the drywall to rest at an
angle to the wall, for a total hallway width of 23 /
34 inches. Sarmiento said the reference
in the citation that states the stacked drywall reduced "the exit route width to
approximately 18 inches" was error. Because construction workers typically wear tool
belts carrying approximately 10 pounds of equipment, Sarmiento said it was inevitable a
worker would "sooner or later" tip over the drywall stacked in the hallway.
Foreperson Dominguez did not dispute that he directed the supplier to stack the
drywall sheets in the hallway near the exit. Dominguez testified he walked by the stack
of drywall, both with and without a tool belt, and did not encounter any problems.
Dominguez said he did not see anyone else having trouble walking by the stack of
drywall. However, on cross-examination, Dominguez admitted that this was not the
"first time the drywall got knocked over." Dominguez testified that when electrical
workers previously attempted to move the stack of drywall to "[Mork behind it," the
drywall stack fell over.
Metal framer Diaz testified that he walked by the drywall stack "[m]any times" and
never had any difficulty walking past the drywall. Both Dominguez and Diaz stated that
although Metier had regular safety meetings with general contractor CHINN, no one
ever raised a concern about how the drywall was being stored on the construction site.
Workplace safety expert Stranne agreed with the Department calculations that
the angled stack of drywall reduced the width of the unit's exit route to approximately 23
3 4 inches. However, based on the assumption that the apartment unit exit doorway is
/
the same as a fire door, Stranne concluded the reduced width was close to the 24-inch
clearance required for fire doors under WAC 296-155-265(4)(g).
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The IAJ issued a proposed decision and order. The IAJ found the Department
proved by a preponderance of the evidence that Metier violated WAC 296-155-
265(4)(a). The IAJ noted WAC 296-155-265(4)(a) does not require exit routes to be a
particular width but "requires only that stored materials not obstruct or adversely affect a
means of exit." Based on the evidence presented at the hearing, the IAJ found the
"drywall that Metier stored in the hallway of the unit adversely affected the means of exit
from the unit" and affirmed the decision of the Department.
Metier filed a petition for review of the proposed decision and order with the
Board. Metier argued that the stack of drywall did not obstruct or adversely affect the
means of exit, the measurements cited by the IAJ were erroneous, and there was no
evidence presented to rebut the testimony of Metier employees.
The Board affirmed the decision of the Department. In the "Decision and Order,"
the Board notes, "While we concede that there are no specific clearance widths
specified in the code, our hearing judge's point about construction workers with tool
belts requiring additional space to safely pass by stacked drywall in a narrow hallway is
well taken" and "one could reasonably conclude from the evidence that the stored
drywall obstructed the only means of exit from the unit." The Board entered the
following pertinent findings of fact and conclusions of law:
FINDINGS OF FACT
3. The 12-foot long sheets of drywall that Metier Construction, Inc.,
stored at an angle in the hallway leading to the only means of exit
from the unit where Metier and others were working reduced the
width of the hallway leading to the exit doorway.
4. The drywall that Metier Construction, Inc., stored in the hallway of
the unit where work was being performed adversely affected the
only means of ingress and egress into that particular unit.
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CONCLUSIONS OF LAW
2. Metier Construction, Inc., committed a general violation of WAC
296-155-265(4)(a).
4. Corrective Notice of Redetermination No. 317938044 issued by the
Department on February 4, 2016, is affirmed as modified.12]
Metier appealed the Decision and Order of the Board to King County Superior
Court. The court affirmed the Decision and Order of the Board.
ANALYSIS
Metier contends substantial evidence does not support the Board's finding that
the stack of drywall adversely affected the exit route of the apartment. Metier also
argues the Board and superior court erred in failing to apply the 24-inch minimum
clearance fire door requirement under WAC 296-155-265(4)(g) to determine whether
the stack of drywall obstructed or adversely affected the exit route.
Standard of Review
The Washington Industrial Safety and Health Act of 1973(WISHA), chapter
49.17 RCW, governs our review. The purpose of WISHA is to "assure, insofar as may
reasonably be possible, safe and healthful working conditions for every man and
woman working in the state of Washington." RCW 49.17.010. We construe all
regulations implemented under WISHA in light of the purpose of the statute. Mid
Mountain Contractors, Inc. v. Dep't of Labor & Indus., 136 Wn. App. 1,4, 146 P.3d 1212
(2006)(citing Adkins V. Alum. Co. of Am., 110 Wash. 2d 128, 146, 750 P.2d 1257, 756
2 One member of the Board disagreed that Metier violated WAC 296-155-265(4)(a) on the ground
that the Department "failed to present any credible evidence to establish that the drywall in any way
impeded the ingress and egress of any workers at this construction site."
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No. 78172-3-1/7
P.2d 142 (1988)). WISHA gives the Department the authority to promulgate regulations
governing workplace safety. RCW 49.17.050. The Department may issue citations and
impose penalties when employers violate these regulations. RCW 49.17.120, .180.
In a WISHA appeal, the findings of fact of the Board are conclusive if substantial
evidence supports the findings when viewed in light of the record as a whole. RCW
49.17.150(1); Express Constr. Co. v. Dep't of Labor & Indus., 151 Wash. App. 589, 595-
96, 215 P.3d 951 (2009). We review the decision of the Board "directly, based on the
record before the agency." Legacy Roofing, Inc. v. Dep't of Labor & Indus., 129 Wn.
App. 356, 363, 119 P.3d 366 (2005). If substantial evidence supports the findings, we
determine whether the findings support the conclusions of law. Mid Mountain, 136 Wn.
App. at 4; see RCW 49.17.150(1).
Substantial evidence is evidence sufficient to persuade a fair-minded person of
the truth of the declared premise. Mowat Constr. Co. v. Dep't of Labor & Indus., 148
Wash. App. 920, 925, 201 P.3d 407(2009). We view the evidence and reasonable
inferences in the light most favorable to the prevailing party. Erection Co. v. Dep't of
Labor & Indus., 160 Wash. App. 194, 202, 248 P.3d 1085 (2011). We do not reweigh or
rebalance the evidence, nor do we apply anew the burden of persuasion. Rogers v.
Dep't of Labor & Indus., 151 Wash. App. 174, 180-81, 210 P.3d 355 (2009). Credibility
determinations are for the trier of fact and are not subject to appellate review. Yow v.
Dep't of Health Unlicensed Practice Program, 147 Wash. App. 807, 819-20, 199 P.3d 417
(2008).
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No. 78172-3-1/8
Substantial Evidence Supports the Finding of the Board
Metier contends substantial evidence does not support the Board finding that the
stacked drywall adversely affected worker egress. Metier argues the evidence
establishes that no worker, either with or without a tool belt, had any trouble walking
through the hallway. Metier argues the Department failed to meet its burden of
establishing that the drywall either obstructed or adversely affected a worker's means of
exit. We disagree.
When alleging a violation of WISHA regulations against an employer, the
Department has the burden of proving the existence of that violation. WAC 263-12-
115(2)(b); J.E. Dunn Nw., Inc. v. Dep't of Labor & Indus., 139 Wash. App. 35, 44, 156
P.3d 250 (2007). A "general violation" is any violation of a safety or health standard
promulgated under WISHA or of any Department regulation governing conditions of
employment that is "determined not to be of a serious nature."3 RCW 49.17.180(3).
To establish a general violation of a WISHA safety regulation, the Department
must prove by a preponderance of the evidence the following:
"(1)[T]he cited standard applies;(2) the requirements of the standard
were not met;(3) employees were exposed to, or had access to, the
violative condition;[and](4) the employer knew or, through the exercise of
reasonable diligence, could have known of the violative condition."
Wash. Cedar & Supply Co. v. Dep't of Labor & Indus., 119 Wash. App. 906, 914, 83 P.3d
1012(2004)(quoting D.A. Collins Constr. Co. v. Sec'y of Labor, 117 F.3d 691, 694(2d
Cir. 1997)).
3 A "serious violation" is one that causes "a substantial probability that death or serious physical
harm could result." ROW 49.17.180(6).
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No. 78172-3-1/9
Metier does not dispute that WAC 296-155-265(4)(a) applied, that workers were
exposed to the stacked drywall in the exit route, or that it knew or could have known
about the location of the drywall sheets. Metier challenges only whether the stack of
drywall adversely affected the apartment exit route.
Under WAC 296-155-265(4)(a), employers must comply with the following indoor
storage requirements: "Storage must not obstruct, or adversely affect, means of exit."
Viewing the evidence in the light most favorable to the Department, substantial
evidence supports the Board finding that Metier's placement of the stack of drywall
adversely affected the means of exit from the apartment unit.
The record establishes the drywall stacked in the hallway reduced the width of
the apartment exit route and the hallway was the only means of exit from the apartment
unit. The record also shows the drywall stacked in the hallway presented a hazard.
Despite conceding a "reduction in the width of a hallway could obstruct or
adversely affect worker egress," Metier claims the unrefuted testimony of its employees
established the stacked drywall did not hinder any workers in the exit route. But the IAJ
rejected the testimony of Metier's employees as not credible.
Citing State ex rel. Liqe & Wm. B. Dickson Co. v. County of Pierce, 65 Wash. App.
614, 618, 829 P.2d 217 (1992), Metier argues the IAJ was required to consider
competing testimony or evidence. In Lige, we state that the deference appellate courts
give to fact finders "necessarily entails acceptance of the fact[ ]finder's views regarding
the credibility of witnesses and the weight to be given reasonable but competing
inferences." Lige, 65 Wash. App. at 618. But a fact finder's credibility determination does
not necessarily turn on the existence of competing testimony. A fact finder can decide a
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No. 78172-3-1/10
witness is not credible without regard to contrary testimony. See, p.p., State v. Swan,
114 Wash. 2d 613, 666, 790 P.2d 610 (1990)(witness's demeanor is a factor in credibility
determinations). Because the IAJ was in a better position to evaluate the credibility of
witnesses and weigh the evidence, we will not substitute our judgment for that of the IAJ
in reviewing the record on appeal. Callecod v. Wash. State Patrol, 84 Wash. App. 663,
676 n.9, 929 P.2d 510 (1997).
WAC 296-155-265(4)(a)
WAC 296-155-265(4)(a) states that storage must not "obstruct" or "adversely
affect" the means of exit. Metier contends the terms "obstruct" and "adversely affect"
are analogous. Metier asserts a means of exit must be obstructed in order to be
adversely affected. Metier contends the mere narrowing of the width of an exit route
does not establish a violation of WAC 296-155-265(4)(a).4
We review the interpretation of WISHA regulations de novo. Erection Co., 160
Wash. App. at 201. "Administrative rules and regulations are interpreted as a whole,
giving effect to all the language and harmonizing all provisions." Cannon v. Dep't of
Licensing, 147 Wash. 2d 41, 57, 50 P.3d 627 (2002). "If an administrative rule or
regulation is clear on its face, its meaning is to be derived from the plain language of the
provision." Cannon, 147 Wash. 2d at 56. Regulatory definitions apply and we give any
undefined terms their ordinary meaning as defined in the dictionary. Habitat Watch v.
Skagit County, 155 Wash. 2d 397, 423, 120 P.3d 56 (2005).
4 We note Metier took a contrary position in its opening brief. Initially, Metier indicated that the
superior court "correctly held that the Department did not have the burden to establish complete
obstruction or difficulty moving through" the exit route.
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No. 78172-3-1/11
Chapter 295-155 WAC does not define the terms "obstruction" or "adversely
affect." The common meaning of "obstruction" is "a condition of being clogged or
blocked." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1559 (2002). By contrast,
the term "adversely" means "unfavorably" or "disadvantageously" and the term "affect"
means "to produce an effect" or "to produce a material influence upon or alteration in."
WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY, at 31, 35. Applying the definitions in
context, WAC 296-155-265(4)(a) requires employers to store material in a manner that
neither completely blocks a means of exit nor negatively impacts a means of exit even
where the means of exit is passable. Here, placing the stack of drywall in the hallway
violated WAC 296-155-265(4)(a).5
WAC 296-155-265(4)(g)
Metier contends the 24-inch clearance requirement for fire doors under WAC
296-155-265(4)(g)6 applies to a violation of WAC 296-155-265(4)(a). Metier raised this
argument for the first time in its reply brief filed in superior court. Under RCW
49.17.150(1), "[r]o objection that has not been urged before the board shall be
considered by the court" except in "extraordinary circumstances." See Dep't of Labor &
Indus. v. Nat'l Sec. Consultants, Inc., 112 Wash. App. 34, 37, 47 P.3d 960 (2002)(unlike
the permissive language of RAP 2.5(a), RCW 49.17.150 is mandatory). Accordingly,
we do not address this argument on appeal.
5 We also note the exit route was not the only location where Metier could have stored the
drywall. Metier foreperson Dominguez testified there were "multiple places" in the apartment unit where
the stack of drywall could be stored.
6 WAC 296-155-265(4)(g) states, "You must maintain a clearance of 24 inches around the
path of
travel of fire doors unless a barricade is provided, in which case no clearance is needed. Material must
not be stored within 36 inches of a fire door opening."
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No. 78172-3-1/12
We affirm the superior court order affirming the Decision and Order of the Board.
WE CONCUR:
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