W. Oilfields Supply v. Wash. State Dep't of Labor & Indus.

• Decision Date: 20 November 2017
• Docket Number: No. 75615-0-I,75615-0-I
• Parties: WESTERN OILFIELDS SUPPLY, d/b/a Rain for Rent, Appellant, v. WASHINGTON STATE DEPARTMENT OF LABOR AND INDUSTRIES, Respondent
• Court: Washington Court of Appeals

408 P.3d 711

WESTERN OILFIELDS SUPPLY, d/b/a Rain for Rent, Appellant,

v.WASHINGTON STATE DEPARTMENT OF LABOR AND INDUSTRIES, Respondent,

No. 75615-0-I

Court of Appeals of Washington, Division 1.

FILED: November 20, 2017

Jeffrey P. Fairchild, Adelstein, Sharpe & Serka LLP, 400 N Commercial St, Bellingham, WA, 98225-4003, Ian Mccurdy, Adelstein, Sharpe & Serka LLP, 400 N Commercial St, Bellingham, WA, 98225-4003, Jacob White, The Rose Law firm, 120 East Fourth Street, Little Rock, AR, 72201, for Appellants.

Seattle Labor & Industries A.g. Office, Attorney at Law, 800 Fifth Ave, Suite 2000, Ms-tb-14, Seattle, WA, 98104-3188, Lindsay Jensen, Attorney General of Washington, Po Box 40121, Olympia, WA, 98504-0121, William Henry, Attorney at Law, 800 Fifth Ave Ste 2000, Seattle, WA, 98104-3188, Paul Michael Crisalli, Washington Attorney General's Office, 800 Fifth Ave Ste 2000, Seattle, WA, 98104-3188, for Respondents.

PUBLISHED OPINION

Verellen, C.J.

¶1 A Rain for Rent employee suffered a severe hand injury when he reached inside a rented pipe fusion machine without deactivating the machine's hydraulics. The Department of Labor and Industries (Department) cited Rain for Rent for violating WAC 296-155-040(2), the safe place standard.

¶2 The manufacturer's operator manual instructs users to turn off the hydraulics before reaching inside the unit. Rain for Rent did not provide the operator's manual with the machine or require the employee to review the manual, and Rain for Rent itself identified the employee's failure to follow the operator's manual as a cause of the incident. Because the Department presented substantial evidence that Rain for Rent failed to provide a workplace free of a hazard, the hazard was recognized, the hazard caused serious physical harm, and there were feasible means to eliminate or materially reduce the hazard, the Board of Industrial Insurance Appeals (Board) did not err when it upheld the citation.

¶3 Additionally, the Board correctly determined Rain for Rent did not prove its affirmative defense of unpreventable employee misconduct. And Rain for Rent failed to establish the accident prevention program rule was more specific than the safe place standard in this setting.

¶4 Therefore, we affirm.

FACTS

¶5 Rain for Rent is a nationwide company that provides temporary liquid handling solutions. In July 2013, Rain for Rent was helping build a wastewater treatment plant in Bellingham. Rain for Rent rented a McElroy Pitbull-900 pipe fusion machine to assist with the project.

¶6 Michael Landdeck, who primarily worked for Rain for Rent as a delivery driver, was assigned the job of operating the fusion machine. He performed fusion jobs once every year or year and a half. Landdeck had received prior training on using pipe fusion machines, but Rain for Rent had not performed a fusion job in nearly two years. The Pitbull-900 was a new machine that Rain for Rent had not used before.

¶7 Landdeck discovered that the operator's manual was not with the machine "the day the machine showed up"¹ Landdeck informed his supervisor that the operator's manual was missing from the machine's manual box. Rain for Rent neither provided a copy nor required Landdeck to review the manual. Landdeck continued to use the fusion machine without reviewing the manual.

¶8 The fusion machine's carriage had two fixed jaws and two hydraulically operated jaws. These jaws held the two pipe sections in place. A double-sided "facer" (circular pipe with three rotating cutter blades) was between the jaws. To "face"² the pipe, Landdeck used the machine's hydraulics to move the jaws together, bringing the two pipe ends into contact with the facer. The rotating cutter blades shaved plastic ribbons³ from the pipe, squaring off the ends of the pipe. A heat plate then seals the pipe ends together. Unlike the machines Rain for Rent had used before, this machine had different hydraulic controls, and the heat plate stayed on even when the hydraulics were shut off.

¶9 The operator's manual for the Pitbull-900 instructed, "Turn the hydraulics off if it is necessary to enter the unit for maintenance or chip removal. Death or serious injury will result if the hydraulics are activated while in the unit."⁴ The warnings referred to cleaning "shavings out of pipe ends and from between the jaws. "⁵ And the manual directed, "Before operating this machine, please read this manual thoroughly, and keep a copy with the machine for future reference. This manual is to be considered part of your machine. "⁶

¶10 On July 16, 2013, Landdeck used this machine to face two sections of 36-inch high density polyethylene (HDPE) pipe. He noticed plastic shavings catching between the facer and a metal shroud that covered it. He thought he had to remove the shavings to continue the job, so he reached into the machine to dislodge them. Landdeck did not deactivate the machine's hydraulics before attempting to remove the shavings. He inadvertently leaned against a lever near his knee, which moved the carriage to the right, pinching his hand between the pipe and the facing plate. The force crushed his hand.

¶11 In the weeks before the incident, Landdeck had completed several job safety analysis (JSA) worksheets that identified "pinch points" as a hazard and directed the operator of the machine to watch hand placement. In the handwritten section of the JSA worksheet, Landdeck wrote, "Keep hands out of pinch points."⁷ But the JSA worksheets did not provide instructions on how to remove shavings and did not mention turning off the hydraulics.

¶12 Rain for Rent's employees participate in an initial 40-hour training, monthly specific safety and health training, and an annual lockout/tagout program. The company also has written safety rules, policies, and procedures available in hard copy at each branch. The goal of the written lockout/tagout policy is "that adequate procedures exist to prevent unexpected energization, start up or release of stored energy."⁸ After the incident, Landdeck told the Department's compliance officer he had not seen the lockout/tagout policy or Rain for Rent's pipe cleaning standard operating procedure. At the hearing, Landdeck testified he was aware of the lockout/tagout policy and it was possible he reviewed it before the incident, but the policy did not specifically address this machine. Landdeck testified that he had never been trained on the issue of ribbons being stuck while facing pipe. At the hearing, Landdeck also testified it was "possible" Rain for Rent had a policy to shut down hydraulics. Landdeck had not previously encountered this problem with shavings. At some unspecified time, Landdeck participated in two two-week training sessions with the manufacturer's representative. There is no evidence of the substance of the manufacturer's training. Rain for Rent's regional safety manager testified that he had the same five days of training on fusion provided by Rain for Rent fusion instructors and that training included turning off hydraulics before reaching into a fusion machine.

¶13 For the fusion machines Landdeck previously used, turning off the hydraulics also shut off the heater plate. After discussing the incident with Landdeck, the inspector believed Landdeck did not turn off hydraulic pumps because he thought he would have to wait for the heater plate to reheat, and Landdeck was concerned about the July 19, 2013, project deadline.

¶14 Rain for Rent conducted an internal investigation. Its regional safety manager concluded the incident was caused by (i) Landdeck's failure to follow the operator's manual while using the fusion machine, (ii) Landdeck's failure to follow Rain for Rent's lockout/tagout policy, (iii) Landdeck's failure to follow Rain for Rent's HDPE pipe cleaning standard operating procedure, (iv) the speed of the fusion process to meet the July 19 deadline, and (v) worker fatigue. The report noted Landdeck did not shut down the hydraulic pump before "entering the pinch crush point."⁹

¶15 Landdeck received "written disciplinary action" as a result of this incident.¹⁰ According to Landdeck's site supervisor, having an operator's manual would probably have helped with the heater plate shutdown because the manual would have explained the heater plate would not lose heat even if the operator shut down the hydraulics.

¶16 The Department cited¹¹ Rain for Rent for violating WAC 296-155-040(2), the safe place standard.¹² Rain for Rent appealed to the Board, and the Board affirmed the citation. The Board noted, "The employer could have insisted its fusion machine operators thoroughly read the operator's manual in order to be prepared for situations (like this one) which may not have been seen before by any particular machine operator."¹³

¶17 The Board found Landdeck "was exposed to the potential and foreseeable hazard of an unsafe workplace when his hands were in close proximity of the fusion machine while he was operating the machine."¹⁴ And Rain for Rent failed to provide a safe workplace because it failed to (i) furnish a copy of the manual to its employee, (ii) insist its employee read the manual, or (iii) provide equivalent training. It also found Rain for Rent "did not take effective steps to discover and correct violations of safety rules related to the protection of its workers from potential injuries."¹⁵ It concluded the Department "met each element of the safe place standard, WAC 296-155-040(2), by a preponderance of the evidence."¹⁶

¶18 On appeal, the Whatcom County Superior Court affirmed the Board's decision, concluding that substantial evidence supported the Board's decision.

¶19 Rain for Rent appeals.

ANALYSIS

¶20 We review the Board's decision directly, based on the record before the agency.¹⁷ The Board's findings of fact "are conclusive if supported by substantial evidence when viewed in light of the record as a whole."¹⁸ Evidence is substantial if it is sufficient to "persuade a fair-minded person of the truth of the declared premise."¹⁹...