Bayley Constr. v. Wash. State Dep't of Labor & Indus.

Decision Date21 October 2019
Docket NumberNo. 77600-2-I,77600-2-I
CourtWashington Court of Appeals
Parties BAYLEY CONSTRUCTION a General Partnership, Appellant, v. WASHINGTON STATE DEPARTMENT OF LABOR & INDUSTRIES, Respondent.

PUBLISHED OPINION

Schindler, J.

¶ 1 A structural steelworker fell 42 feet to his death through a 5/8-inch-thick plywood floor-hole cover. The Washington State Department of Labor and Industries (Department) cited the general contractor Bayley Construction General Partnership (Bayley) for a serious violation of the Washington Industrial Safety and Health Act of 1973, chapter 49.17 RCW, and the floor hole cover regulation, WAC 296-155-24615(3)(a)(ii).1 The serious violation citation states Bayley violated WAC 296-155-24615(3)(a)(ii) by failing to ensure the 5/8-inch-thick plywood cover was capable of supporting the "maximum potential load" of the worker. The Board of Industrial Insurance Appeals (Board) affirmed the decision to issue the serious violation citation. Bayley appeals the superior court order affirming the Board. We conclude substantial evidence supports finding the existence of a work site hazard, that Bayley knew or should have known the work site created a substantial probability of serious physical harm or death, and the Board did not err in concluding Bayley violated WAC 296-155-24615(3)(a)(ii). We also conclude Bayley was not denied fair notice of the Department’s interpretation of WAC 296-155-24615(3)(a)(ii). We affirm the superior court order affirming the Board decision.

Construction of Health and Sciences Building

¶ 2 Bayley Construction was the general contractor on the project to construct a new three-story health and sciences building at Bellevue College. The heating, ventilation, and air conditioning (HVAC) system for the building was designed for installation on the roof of the building.

¶ 3 Bayley workers constructed a 32-inch-tall "stem wall" on the roof of the building to enclose a 32-inch-wide by 62-inch-long rectangular hole for HVAC equipment. Bayley general foreman Christopher Babbitt used 5/8-inch-thick plywood to construct a 48-inch-wide by 60-inch-long floor hole cover and spray-painted the word "HOLE" on the cover.

¶ 4 Bayley hired Evergreen Erectors as the structural steel subcontractor to construct a 16-foot-high "wind wall" to surround the HVAC system. Evergreen Erectors structural steelworker journeymen Theodore (T.J.) Merry and Allen Wahl and third year apprentice Bryan Johnson worked on construction of the wind wall.

July 21, 2014 Accident

¶ 5 On July 21, 2014, the Evergreen structural steelworkers were welding angle iron onto the wind wall. The workers used clamps to secure the angle iron. Wahl was working on the outside of the wind wall. Merry was using a large stepladder to work on the inside of the wind wall. The ladder was positioned in the southeast corner of the wind wall next to the stem wall and the floor hole cover. Bayley construction workers had attached 2-inch by 4-inch "whalers" on the outside of the stem wall in preparation for pouring concrete in the stem wall that day.

¶ 6 Merry weighed 257 pounds and was wearing a 20-pound tool belt. While Merry was standing on the ladder approximately five feet above the surface of the roof, Wahl told Merry that he needed another clamp. Wahl watched Merry climb down the ladder, step onto the top of the stem wall, and jump onto the plywood floor-hole cover.

¶ 7 Johnson was working on the outside of the wind wall when he heard someone "yell[ ] my name." Johnson "turned around" and saw Merry standing on top of the stem wall, then jump and land with both feet on the plywood floor-hole cover. The plywood broke under his weight. Wahl saw Merry "tr[y] to grab the edge" before he fell 42 feet to his death.

Serious Violation of WAC 296-155-24615(3)(a)(ii)

¶ 8 Department safety compliance officers Javier Sarmiento and Christopher Troxell conducted an investigation of the accident. Sarmiento and Troxell interviewed Babbitt and a number of workers, including Wahl and Johnson. Sarmiento and Troxell took photographs and measurements of the work site, including the wind wall, the stepladder, the stem wall, and the hole opening.

¶ 9 The Department issued a citation and notice of assessment against Bayley for a serious violation of WAC 296-155-24615(3)(a)(ii). The citation states, in pertinent part:

As the exposing employer (Bayley Construction employees) and creating and controlling contractor (Evergreen Erector’s employees), the employer did not ensure that all floor openings had floor covers that were capable of supporting the maximum potential load with a safety factor of four as required by WAC 296-155-24615(3)(a)(ii).
Appeal to the Board

¶ 10 Bayley appealed the citation and notice of assessment for a serious violation of WAC 296-155-24615(3)(a)(ii) to the Board of Industrial Insurance Appeals (Board). Bayley alleged the Department could not establish a serious violation of WAC 296-155-24615(3)(a)(ii). Bayley argued it complied with the fall restraint requirement for a floor hole cover by using 5/8-inch-thick plywood that was capable of supporting the maximum "intended" load. Bayley asserted the decision of Merry to jump on the plywood cover was not foreseeable.

¶ 11 The Board of Industrial Insurance Appeals judge (IAJ) held a hearing. The Department presented the testimony of Bayley foreman Babbitt, Evergreen steelworkers Wahl and Johnson, safety compliance officers Sarmiento and Troxell, and Department Division of Occupational Safety and Health (DOSH) standards and technical services expert David Conley.

¶ 12 Babbitt testified the first step is to "[f]ind the right material to cover [the] hole and understand what the intended load will be on that hole." Babbitt said the "intended load" "varies depending on the size of the opening" and "the location." Babbitt testified that to determine the intended load, he "typically" used the weight of the heaviest worker, or approximately 250 pounds, multiplied by four. Babbitt said the floor hole cover has to be "able to withstand four times the intended load." But Babbitt testified, "[I]t’s basically up to the journeyman carpenter to determine whether that is sufficient or not because it could vary depending on the size of the hole." Babbitt decided to use medium density 5/8-inch-thick plywood to construct the floor hole cover for the 32-inch by 62-inch hole in the roof near the stem wall. Babbitt testified that " [i]n the future we need to strengthen our hole covers. Although it was not intended to be jumped on, it is clearly a possibility.’ "

¶ 13 Department safety compliance officer Sarmiento testified that when he inspected the work site after the accident, Bayley’s on-site superintendent told him that after the accident, Bayley replaced the 5/8-inch floor hole covers with thicker 3/4-inch floor hole covers. Sarmiento testified that he was taught to use at least 3/4-inch-thick plywood for a floor cover and never used 5/8-inch-thick plywood.2

¶ 14 Department safety compliance officer Troxell testified that using the weight of a worker plus a tool belt multiplied by four is not sufficient to comply with the requirement under WAC 296-155-24615(3)(a)(ii) to install a floor hole cover capable of supporting the "maximum potential load." Troxell said calculating the weight of the heaviest worker plus a tool belt times four is a "starting point." Troxell testified the contractor needs to take into account work site conditions and dynamic forces created by a worker tripping or falling onto the floor hole cover.

¶ 15 Troxell testified Wahl and Johnson admitted that while working on the wind wall, the Evergreen steelworkers frequently were "[g]oing in and out" of the stem wall enclosure.

¶ 16 The Department designated DOSH standards and technical expert Conley to testify about construction safety rules and WAC 296-155-24615(3)(a)(ii). Conley said WAC 296-155-24615(3)(a)(ii) had been in effect since 1986 and before this accident, the Department had not previously interpreted the WAC or the meaning of "maximum potential load."

¶ 17 Conley testified WAC 296-155-24615(3)(a)(ii) is a "performance standard," not a "specification standard." WAC 296-155-24615(3)(a)(ii) does not specify "what material has to be used. Only that it meets certain strength requirements."

A performance standard gives general requirements for an employer to follow, and a ... specification standard is more specific to, say, a certain requirement for, say, tensile strength of a vertical lifeline must be 5,000 pounds, where we actually give specific information about what we want the requirement to be.

¶ 18 Conley testified the phrase "maximum potential load" as used in WAC 296-155-24615(3)(a)(ii) means "what is possible or what is the greatest load that could be imposed on that cover." Conley said that in determining the "maximum potential load" for a floor hole cover, the employer must consider the potential that a worker will slip, trip, or fall on the cover because a "dynamic load" creates more force than a "static load." Conley testified that in calculating the "maximum potential load," the employer must therefore "tak[e] into account the greatest amount of force that could be placed on that cover" at the work site. "[I]f you multiply that by a factor of four, it should really be strong enough to withstand just about anything."

¶ 19 Engineering and safety expert Kurt Stranne, third-party safety director Steven...

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