Central Steel Inc., V. Wa State Dept. Of Labor And Industries ( 2024 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
CENTRAL STEEL, INC., d/b/a
HARRIS REBAR SEATTLE, INC., No. 86201-4-I
Appellant, DIVISION ONE
v. UNPUBLISHED OPINION
WASHINGTON STATE
DEPARTMENT OF LABOR AND
INDUSTRIES,
Respondent.
BIRK, J. — Central Steel, Inc., d/b/a Harris Rebar Seattle, Inc. challenges
the order of the Board of Industrial Insurance Appeals (Board) upholding a citation
issued by the Department of Labor and Industries (Department). Because the
Board’s findings are supported by substantial evidence, we affirm.
Central Steel was setting steel rebar for the construction of concrete
columns for a new bridge. Its operations involved lifting rebar and formed
fabricated rebar columns weighing thousands of pounds with synthetic slings. In
response to an unrelated accident on June 2, 2021, Department Compliance
Safety and Health Officer Patrick Austin Sheely inspected the work site. A
representative of Central Steel was not present at the June 2, 2021 inspection
because its work hours had ended before the accident. Sheely observed
numerous synthetic slings used to move rebar, which he determined were
inadequate and should be replaced. Sheely conducted additional inspections on
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June 3, 2021, June 7, 2021, June 15, 2021, and June 21, 2021. Sheely
interviewed Matt Lutz, a foreman at Central Steel, about the condition of the straps.
Lutz inspected the straps monthly and daily before the start of work.
The Department issued Central Steel a citation for violation of the
Washington Administrative Code, penalizing the company $3,200.00. Before the
Board, without objection from Central Steel, the Department obtained leave to
amend the citation to allege a violation of WAC 296-155-55820. Under that code
provision, a “qualified person” must perform a visual inspection of synthetic
webbing slings for damage “each day or shift the synthetic webbing sling is used,”
and “[i]mmediately remove from service any sling that is damaged beyond the
criteria listed in Table 25.” WAC 296-155-55820(2)(b). The criteria listed in Table
25 include, in relevant part, missing or illegible sling identification; acid or caustic
burns; melting or charring on any part of the sling; holes, tears, cuts or snags;
broken or worn stitching in load bearing splices; excessive abrasive wear; knots in
any part of the sling; discoloration, brittle fibers, and hard or stiff areas that may
indicate chemical or ultraviolet/sunlight damage; and fittings that are pitted,
corroded, cracked, bent, twisted, gouged or broken. WAC 296-155-55820(2)
tbl.25.
Central Steel concedes “[t]here is no dispute that the torn or frayed straps
observed at the time of [Sheely’s] inspection met the removal criteria.” While
Central Steel goes to some length in arguing that the regulation “does not require
the employer to inspect the straps more than once per shift,” the Department
concedes that it has never asserted that straps must be removed the moment they
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meet removal criteria. The issue the parties dispute, as aptly summarized by
Central Steel, is whether “the straps met removal criteria when [Lutz] inspected
them the morning of June 2, 2021.” The Board found, “The preponderance of the
credible evidence is that the removal conditions were not likely to have developed
over the period of one shift, that is, the work performed on June 2, 2021.” Central
Steel challenges this finding.
On appeal from a superior court decision affirming a decision by the Board,
we sit in the same position as the superior court and review the agency’s order
based on the administrative record. B & R Sales, Inc. v. Dep’t of Lab. & Indus.,
186 Wn. App. 367, 374, 344 P.3d 741 (2015). We accept the Board’s findings of
fact as true unless an aggrieved party both challenges a finding and presents
argument “why specific findings are not supported by the evidence” with
appropriate citations to the record. Inland Foundry Co. v. Dep’t of Lab. & Indus.,
106 Wn. App. 333, 340, 24 P.3d 424 (2001). “The Board’s findings of fact are
conclusive if they are supported by substantial evidence when viewed in light of
the record as a whole.” Potelco, Inc. v. Dep’t of Lab. & Indus., 194 Wn. App. 428,
434, 377 P.3d 251 (2016). “Substantial evidence is evidence sufficient to persuade
a fair-minded person of the truth of the matter asserted.” Id. We do not reweigh
the evidence, but instead view the evidence in the light most favorable to the party
that prevailed before the Board. Id. If substantial evidence supports the Board’s
factual findings, we then decide if those findings support the Board’s conclusions
of law. Id.3
No. 86201-4-I/4
In proceedings before the Board, Sheely gave testimony supporting that
removal conditions existed at the time of Lutz’s inspection. Sheely testified the
slings he examined on June 3 had “fraying damage” which met the removal criteria.
Sheely testified, “[Y]ou can tell from the damage, the way it’s fraying, that this is
not damage that just occurred in the previous lift. This is damage that’s been . . .
there long enough to become frayed.” Sheely based this opinion on his extensive
experience lifting rebar with synthetic web slings and the state of the threads.
Sheely further noted the photos he took of the slings showed “the dirt embedded
on the underside of these broken strands where if they’d just been cut, they would
not have a chance to have dirt embedded into the broken parts of the damage.”
When specifically asked how he knew the wear and tear on the slings were not
from one day of use, Sheely responded,
[M]uch of the damage and the fraying that’s occurring on these
slings, which would be removal criteria in itself, is not something that
occurs over one lift. It occurs over—like the load sawing on itself
over multiple lifts and uses. And so it’s not something that happens
typically over the course of a single day.
Additionally, were these slings elsewhere, I believe it was
Marty Ehnat who stated they’d removed eight slings from service in
the last month. My inspection noted on a single day that there were
eight slings that met removal criteria. And even given a wide margin
for how many slings they’re using in a day and how often these slings
are used, that amount of damage that would be found on a single
day would be there would be really dozens and dozens, significant
multipliers of eight. They would be removing way more than eight
slings a month if they’re doing this much damage to them.
Substantial evidence supports finding of fact 5.
Central Steel points to other evidence, describing the thoroughness of
Lutz’s inspections, his readiness to remove straps from service, the roughness of
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rebar, and the speed with which it can fray nylon straps. Central Steel argues this
evidence showed that the straps must not have met removal criteria at the time of
Lutz’s inspection. But in reviewing findings of fact for substantial evidence, we do
not reweigh evidence for whether it could have supported a different outcome.
Ramos v. Dep’t of Lab. & Indus., 191 Wn. App. 36, 41, 361 P.3d 165 (2015).
Central Steel assigns error to other findings of fact and conclusions of law
in which the Board addressed the hazardousness of the violation and the penalty
amount. These findings and conclusions necessarily flow from finding of fact 5.
Other than challenging the evidence that the removal conditions existed at the time
of the inspection, Central Steel does not provide any argument that the Board
otherwise erred in assessing the severity of the hazard if the evidence supported
it or the amount of the penalty. Because finding 5 is supported by substantial
evidence, there is no need to further address the other challenged findings.
The parties disagree about the proper interpretation of the Table 25 criterion
referring to “[d]iscoloration, brittle fibers, and hard or stiff areas that may indicate
chemical or ultraviolet/sunlight damage.” Central Steel argues the Board erred by
considering only that the straps were discolored at the time of inspection, because
the regulation requires discoloration “and” brittleness and hard or stiff areas to
meet this removal criterion. Quoting State v. Kozey, 183 Wn. App. 692, 698, 334
P.3d 1170 (2014), the Department argues that this is one of the exceptional times
the word “and” should be given “ ‘disjunctive force’ ” to preserve the regulation’s
intent. However, it is not necessary to address this argument because Sheely
testified the slings had “the damage and the fraying” supporting removal
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independent of discoloration. Sheely based his estimation of the age of the wear
on this damage and “[i]n addition” ultraviolet damage and impregnation of dirt.
Because the finding that removal conditions were present at the time of the
inspection did not rely on finding ultraviolet damage based on discoloration alone,
it is not necessary to resolve the parties’ disagreement over the meaning of the
word “and” as used in this instance.
Affirmed.
WE CONCUR:
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