COBRA ROOFING SERVICE, INC. v. Department of Labor & Industries

• Decision Date: 08 July 2004
• Docket Number: No. 21923-2-III.,21923-2-III.
• Citation: 122 Wn.App 402,97 P.3d 17,122 Wash. App. 402
• Court: Washington Court of Appeals
• Parties: COBRA ROOFING SERVICE, INC., Appellant, v. DEPARTMENT OF LABOR & INDUSTRIES, Respondent and Cross-Appellant.

97 P.3d 17

122 Wn.App 402

122 Wash. App. 402

COBRA ROOFING SERVICE, INC., Appellant, v. DEPARTMENT OF LABOR & INDUSTRIES, Respondent and Cross-Appellant.

No. 21923-2-III.

Court of Appeals of Washington, Division 3, Panel Five.

July 8, 2004.

Reconsideration Denied August 19, 2004.

Kevin W. Roberts, Dunn & Black PS, Spokane, WA, for Appellant.

Anastasia R. Sandstrom, Attorney at Law, Seattle, WA, for Respondent.

Douglas B.M. Ehlke, Attorney at Law, Federal Way, WA, for Amicus Curiae.

BROWN, J.

Cobra Roofing Services (Cobra) and the Department of Labor and Industries (Department) both prevailed on specific issues in a judicial review of alleged violations of the Washington Industrial Safety and Health Act (WISHA). Neither the Board of Industrial Insurance Appeals (Board), nor the superior court would grant Cobra's request for attorney fees and costs under the Equal Access to Justice Act (EAJA), RCW 4.84.350. Cobra appeals the denial of fees and costs as well as other issues. The Department cross appeals the superior court's determination that one of the WISHA violations was not a repeat offense. We hold one of the violations is properly viewed as a repeat offense and reverse the superior court's contrary holding, but otherwise affirm the superior court and Board.

FACTS

On February 22, 2000, a Department inspector issued citations to Cobra for safety violations at a school remodeling site. Citation 1, Item 1 (fall protection citation), stated: "The employer did not ensure employees exposed to a hazard of falling from a location 10 feet or more in height, were using a fall restraint, fall arrest system." Board Record (BR) at 73. The inspector assessed a base penalty of $1,600 and then doubled it to $3,200 because the citation was for a repeat violation. Citation 2, Item 1 (ladder citation), which assessed a $640 penalty, stated: "The employer did not ensure when portable ladders are used for access to an upper landing surface, the ladder side rails shall extend at least 3 feet above the upper landing surface to which the ladder is used to gain access." BR at 74. Citation 2, Item 2 (materials storage citation), which assessed a $1,360 penalty, stated: "The employer did not ensure materials that were stored within six feet of the roof edge had guardrails erected at the roof edge." BR at 74. Citation 3, Item 1 (general citation) carried no monetary penalty. A hearing examiner issued a corrective notice of redetermination affirming the citations, including the repeat violation penalty on the fall protection violation. Cobra appealed to the Board. The Industrial Insurance Appeals Judge (IAJ) issued a proposed decision and order affirming the fall protection citation with a $800 penalty, but determined also that it was not a repeat violation. The IAJ further affirmed the general citation with no monetary penalty. The IAJ reversed the ladder citation and the materials storage citation.

Relying on RCW 4.84.350(1), the EAJA, Cobra moved for attorney fees and costs incurred in defending against the citations. The Department filed a petition for review to the Board.

The Board issued a decision and order setting forth findings of fact and conclusions of law. As a preliminary matter, the Board rejected Cobra's fee request, reasoning RCW 4.84.350(1) does not authorize such an award for prevailing before the Board. The Board affirmed the fall protection citation, held it was a repeat violation, and assessed a $1,600 penalty. The Board also affirmed the ladder citation and assessed a $640 penalty. The Board vacated the materials storage citation. And the Board affirmed the general citation without a financial penalty.

Cobra filed a notice of appeal to the Asotin County Superior Court. Cobra also moved for an award of attorney fees and costs. The superior court concluded that the Department erred in characterizing the fall protection citation as a repeat violation. The superior court affirmed the Board as to the ladder citation. The superior court further decided Cobra was not entitled to attorney fees and costs for work before the Board under RCW 4.84.350. However, the superior court partly granted Cobra's request for attorney fees and costs incurred in that court, reasoning Cobra had prevailed on the repeat violation issue for purposes of the EAJA.

The superior court granted the Department's motion for reconsideration on the attorney fee issue, concluding that both sides prevailed on significant issues and therefore Cobra was not entitled to fees. Consequently, the superior court denied Cobra's fee request. Cobra appealed. The Department cross-appealed.

ANALYSIS

A. Ladder Citation

The issue is whether the Board erred in deciding Cobra's placement of ladders violated WAC 296-155-480(2)(a), which states:

When portable ladders are used for access to an upper landing surface, the ladder side rails shall extend at least 3 feet (.9 m) above the upper landing surface to which the ladder is used to gain access; or, when such an extension is not possible because of the ladder's length, then the ladder shall be secured at its top to a rigid support that will not deflect, and a grasping device, such as a grabrail, shall be provided to assist employees in mounting and dismounting the ladder. In no case shall the extension be such that ladder deflection under a load would, by itself, cause the ladder to slip off its support.

"Landing means any area such as the ground, roof, or platform that provides access/egress for a ladder." WAC 296-155-47501(11).

Here, the ladder leaned up against a parapet wall surrounding the roof. The parapet wall varied between 23 to 30 inches in height. The ladder did not extend three feet above the top of the parapet wall. And it is not clear whether the top of the ladder extended at least three feet above the roof; the inspector did not measure it, and declined to estimate it. Cobra, claiming the top of the ladder was at least three feet above the roof, contends "upper landing surface" means the roof, and, therefore, there was no violation. The Department argues "upper landing surface" means the top of the parapet wall, and, therefore, the ladder was not in compliance.

We interpret agency regulations as if they were statutes. Children's Hosp. v. Dep't of Health, 95 Wash.App. 858, 864, 975 P.2d 567 (1999). We review the Board's interpretation of the statute or regulation de novo. Stuckey v. Dep't of Labor & Indus., 129 Wash.2d 289, 295, 916 P.2d 399 (1996). We review the agency's interpretation under an error of law standard, which allows an appellate court to substitute its own interpretation of the statute or regulation for the Board's interpretation. St. Francis Extended Health Care v. Dep't of Soc. & Health Serv., 115 Wash.2d 690, 695, 801 P.2d 212 (1990). We give substantial weight to the agency's interpretation of statutes and regulations within its area of expertise. Id. Accordingly, we will uphold an agency's interpretation of a regulation if "it reflects a plausible construction of the language of the statute and is not contrary to the legislative intent." Seatoma Convalescent Ctr. v. Dep't of Soc. & Health Serv., 82 Wash.App. 495, 518, 919 P.2d 602 (1996). But we must also ensure that the agency applies and interprets its regulations consistently with the enabling statute. Ortega v. Employment Sec. Dep't, 90 Wash.App. 617, 622, 953 P.2d 827 (1998).

No controlling case law defines the meaning of WAC 296-155-480(2)(a). Standing alone, "landing" is a noun that means "any area," including a "platform that provides access/egress for a ladder." WAC 296-155-47501(11). "Upper landing" is an adjectival phrase modifying "surface." See Yates Constr. Co., Inc. v. Commr's. of Labor for the State of N. Carolina, 126 N.C.App. 147, 484 S.E.2d 430, 433 (1997)

(interpreting "upper landing surface" for purposes of Occupational Safety & Health Administration (OSHA) ladder standard). Cobra notes correctly the definition of landing includes "roof," but it also includes "any area," which would include a wall surrounding a roof. WAC 296-155-47501(11).

In essence, "upper landing surface" describes the point at which the worker accesses the top end of the ladder. WAC 296-155-480(2)(a); see Yates Constr., 484 S.E.2d at 433 (holding "upper landing surface" was the ground at the top of a trench). The top surface of the parapet wall meets that definition. Although narrow, the wall is an "area" or "platform" on which the upper end of the ladder rests for purposes of access to the ladder. WAC 296-155-47501(11). The top of the wall is also the area where a worker would mount or dismount the ladder in order to enter or leave the work area, the roof. Accordingly, in this case the ladder must extend three feet above the top of the wall as measured from the point where the ladder rests upon the wall. WAC 296-155-480(2)(a).

Here, the ladder did not reach the required height above the wall. See Yates Constr., 484 S.E.2d at 433 (reasoning that a safety violation occurs where a ladder does not extend the required height above the top of a trench). Cobra's interpretation is untenable because it would allow the ladder to end flush with or below the top of the parapet wall if the wall rises three or more feet above the roof. See id. (noting with disapproval that workers would have to climb the trench wall above the ladder). Cobra's proposition is also inconsistent with a current interpretation of the nearly identical OSHA ladder standard:

The [OSHA] ladder standard requires that the side rails of a ladder extend beyond the top of any low wall or railing that protects the edge of a platform, roof, or bridge of a building. It is not sufficient if the ladder ends flush with the uppermost surface of the low wall, railing, etc.

15 Emp. Coord. Workplace Safety § 2:47 (March 2004).

Treating the top of the parapet wall as an "upper landing surface" for purposes of WAC 296-155-480(2)(a) serves the broad remedial purpose of the...