Department of Labor v. Kaiser Aluminum
| Decision Date | 04 April 2002 |
| Docket Number | No. 19965-7-III.,19965-7-III. |
| Citation | 111 Wash.App. 771,48 P.3d 324 |
| Court | Washington Court of Appeals |
| Parties | DEPARTMENT OF LABOR AND INDUSTRIES OF THE STATE of Washington, Appellant, v. KAISER ALUMINUM AND CHEMICAL CORPORATION, Respondent. |
Bourtai Hargrove, Assistant Attorney General, Olympia, for Appellant.
Douglas B. Ehlke, Federal Way, for Respondent.
The Washington State Department of Labor and Industries seeks review of a superior court decision that affirmed the dismissal by the Board of Industrial Insurance Appeals of four violations of various general Washington State safety regulations. The citation followed the accidental death of a Kaiser Aluminum and Chemical Corporation plant worker, James VanDoren. He suffocated when he was trapped between the cab and the bucket of a small front-end loader. The bucket (apparently) slowly descended and compressed him against the cab of the loader.
The Department cited Kaiser for a number of safety violations centered on the use of heavy-gauge steel angle iron to support the bucket of a Bobcat (a small front-end loader) during maintenance and repair. The administrative law judge (ALJ) dismissed four of the five serious violations. The Board of Industrial Insurance Appeals and the superior court affirmed. The ALJ found the practice of using angle iron to support the bucket both widely accepted in the industry and safe. This record amply supports the ALJ's findings, and those findings amply support the conclusions and order dismissing these violations. And we therefore affirm.
James VanDoren was an experienced journeyman mechanic. Mr. VanDoren was particularly experienced in the maintenance and repair of moving equipment, including the Bobcat skid steer loader responsible for his accident. The employer was Kaiser Aluminum and Chemical Corporation, for whom Mr. VanDoren worked at Kaiser's plant in Mead, Washington. Melroe Corporation manufactures the Bobcat. The Department of Labor and Industries is the state agency that enforces workplace safety and health regulations in Washington.
The Bobcat is a small, four-wheeled, selfpropelled, front-end-type loader. Structurally, it consists of a protected cab, and a bucket attached to two sidearms on either side of the cab, which raise and lower the bucket. Two hydraulic cylinders raise and lower the bucket, which rests against the front of the cab when in its lowered position. An operator sits inside the cab and raises and lowers the bucket with foot controls. Although the vehicle itself is small, the bucket weighs over 500 pounds.
In order to access hydraulic lines for repairs, a mechanic must secure the bucket in an elevated position. This is done by hooking a chain to the bucket and securing it from above with a chain hoist. For additional protection, the mechanic then wedges a support device between the hydraulic piston and the bucket. The manufacturer provides a support device for this purpose. But the manufacturer's device is easily damaged. Angle iron is stronger, heavier, and can be cut to exact lengths to achieve the desired degree of elevation for repairs. Angle iron is used routinely throughout the industry.
Mr. VanDoren was repairing one of Kaiser's Bobcats. Accident reconstruction experts testified that after he had completed work on the Bobcat, Mr. VanDoren removed all support devices, including the angle iron, the chain hoist, and the jack stands. The jack stands had been used to prop up the rear wheels on the Bobcat. He also appears to have bypassed several built-in safety mechanisms, such as that requiring an operator to be sitting in the cab, while applying finishing touches to the repair. The bucket apparently slowly descended, compressed Mr. VanDoren against the cab of the Bobcat, and suffocated him. Medical examiners found no broken bones or crush injuries.
The Department investigated the accident. An enforcement inspector assumed that the angle iron failed (a bent piece of angle iron was found near the scene) and cited Kaiser for five serious violations of the Washington Administrative Code requiring adequate safety hardware, written procedures, and training.
Kaiser appealed the citation. An ALJ summarily dismissed the first violation, which consisted of two parts, alleging inadequate lift-arm support hardware. He based the dismissal on undisputed facts and the Department's pretrial admissions. The Department admitted that angle iron was well accepted and consistently used by mechanics in the industry, including the local Bobcat distributor.
The Department and Kaiser presented conflicting expert reconstructions of the accident. The Department hired a mechanical engineer. This witness assumed, first of all, that all of the hydraulic fluid had been drained from the hydraulic lines. This would allow the bucket to freely fall. He further assumed that the angle iron used as a lift-arm support had not been properly placed, so that the force of the falling bucket struck the angle iron on an edge, rather than directly. The Department's expert concluded that the angle iron had disengaged, resulting in a sudden, powerful drop of the bucket due to the lack of hydraulic fluid. The fall crushed Mr. VanDoren.
Kaiser's expert reached a different conclusion based on different assumptions. Kaiser's expert demonstrated that it was more likely that Mr. VanDoren had completed the repairs and was finishing the job. He theorized that Mr. VanDoren disengaged the chain hoist and removed the angle iron. The hydraulic system was charged with fluid. And therefore the hydraulic system would have supported the bucket. According to this reconstruction of the accident, Mr. VanDoren used wrenches found on the floor of the cab to bypass design safeguards in the Bobcat by wedging them under a pedal which operated the bucket. Kaiser's expert hypothesized that Mr. VanDoren inadvertently knocked one of the wrenches loose, allowing the bucket to begin descending slowly (and silently). It compressed him against the cab of the Bobcat and suffocated him.
The ALJ found that Kaiser's version of events was most consistent with the evidence found at the scene of the accident (the hydraulic system was charged; wrenches were found near the foot controls) and with the medical opinions on the cause of death (suffocation). If the Department's theory were correct, the sudden, catastrophic falling of the bucket would have resulted in crushed bones and internal organs. And this did not happen.
The relevant Washington Administrative Code section requires only that the employer provide adequate safety hardware. The ALJ ruled that Kaiser's use of angle iron satisfied the regulation as a matter of law. Despite summarily dismissing the two parts of the first violation, the ALJ admitted extensive evidence (over Kaiser's objection) on the propriety of using angle iron to support the bucket. He then entered extensive findings of fact and conclusions of law, and dismissed the remaining violations with the exception of one training violation.
The Department appealed to the Board of Industrial Insurance Appeals. The Board adopted the ALJ's findings with only slight modification and issued a decision and order affirming. The Department appealed to the superior court. The superior court affirmed the Board. The court found that the Board's findings were amply supported by substantial evidence, and that those findings supported the conclusions and the dismissal of these violations.
Violation 1-1a: "The employer did not provide adequate energy-isolating devices to safely support skid steer loader lift arms, exposing garage mechanics to crush hazards between skid steer loader frames and raised portions of the equipment." Certified Appeal Board Record (CABR) at 87.
Violation 1-1b: "The employer did not ensure manufacturer's approved safety devices were maintained, made available and used, for example the lift arm support device for skid steer loader 798." CABR at 88.
The Department reads WAC 296-24-11005(5)(a)1 and WAC 296-24-073(2)2 as requiring the use of only the manufacturer-supplied bucket arm supports. It contends that this worker was accidentally killed because stored energy (the raised bucket) was expended (when the bucket fell). This was caused by the failure to support the bucket with the manufacturer's approved energy-isolating device.
The Department also takes issue with the ALJ's reliance on the fact that the Department had never previously cited any employer for using angle iron as an energy-isolating device. And, specifically, that the Department had never cited Kaiser for failing to use the manufacturer's device for supporting the Bobcat bucket, notwithstanding numerous safety inspections.
Kaiser responds that the ALJ correctly concluded that use of angle iron to support Bobcat buckets is a reasonable safety precaution, well accepted throughout the industry, and that the manufacturer's device is not necessary to comply with these regulations.
Summary judgment is appropriate if, viewing the pleadings, admissions, depositions and affidavits and all reasonable inferences therefrom in the light most favorable to the nonmoving party, there is no genuine dispute of material fact, and the moving party is entitled to judgment as a matter of law. Smith v. Employment Sec. Dep't, 100 Wash. App. 561, 568, 997 P.2d 1013 (2000). A material fact is one upon which the outcome of the case depends, in whole or in part. Morris v. McNicol, 83 Wash.2d 491, 494, 519 P.2d 7 (1974). We review summary judgments de novo. We engage in the same inquiry as the decision maker. Wilson v. Steinbach, 98 Wash.2d 434, 437, 656 P.2d 1030 (1982).
We will uphold the ALJ's...
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