Potelco, Inc. v. Dep't of Labor & Indus.

• Decision Date: 20 November 2018
• Docket Number: No. 50943-1-II,50943-1-II
• Citation: 433 P.3d 513,7 Wash.App.2d 236
• Parties: POTELCO, INC., Appellant, v. DEPARTMENT OF LABOR AND INDUSTRIES Respondent.
• Court: Washington Court of Appeals

7 Wash.App.2d 236

433 P.3d 513

POTELCO, INC., Appellant,

v.DEPARTMENT OF LABOR AND INDUSTRIES Respondent.

No. 50943-1-II

Court of Appeals of Washington, Division 2.

Filed November 20, 2018

Publication Ordered January 23, 2019

Gena Marie Bomotti, Katherine Ahn Seabright, Fox Rothschild LLP, 1001 4th Ave. Ste. 4500, Seattle, WA, 98154-1192, for Appellant.

James P. Mills, Office of the Attorney General - Tacoma, Po Box 2317, Tacoma, WA, 98401-2317, for Respondent.

Melnick, J.

¶ 1 Potelco, Inc. appeals from a Board of Industrial Insurance Appeals (BIIA) decision affirming its citation for four serious violations and one general violation of the Washington Industrial Safety and Health Act of 1973 (WISHA), ch. 49.17 RCW. We conclude that substantial evidence supports the BIIA’s findings and that it did not abuse its discretion. We affirm.

FACTS

I. INCIDENT

¶ 2 Potelco is a utility contractor that works primarily on high voltage electrical lines in Washington.

¶ 3 A four-man Potelco crew worked on a multi-month project in Olympia to replace a single phase line with a triple phase line. The procedure involved installation of three new power lines followed by removal of the old line. This type of project usually would take about three to four months in total. The crew included apprentice lineman Brent Murphy and journeyman lineman Benjamin Laufenberg who was the crew foreman and Murphy’s supervisor. None of the linemen on this project established an equipotential zone (EPZ)¹ around the work area. After the crew had completed installation of the triple phase line, it turned to removing the replaced single phase line.

¶ 4 On February 14, 2014, Murphy worked with another lineman to remove the single phase line. The process for removing the single line involved deenergizing it, grounding it on both ends, and taking it to the ground without letting it touch any of the new lines which would reenergize it. One lineman went up to cut the wire and drop it down to Murphy, who waited on the ground to receive it.

¶ 5 That same day, Laufenberg worked between 300 and 450 feet away on the same line. Because the line blocked a residential driveway, Laufenberg cut it, but he did not communicate this fact to the rest of the crew.

¶ 6 After the lineman with Murphy dropped the line to the ground, Murphy, who did not know it had been cut, picked it up with his bare hand. He took about three steps and then felt a buzz. Because the line had been cut, Murphy’s pulling on it had caused it to touch an energized connection device, energizing the line and shocking him. Murphy also dragged the line over a chain link fence which absorbed the majority of the electric current, burning the fence and saving Murphy from serious injury. Murphy yelled for everyone to stay off the line. Murphy received no injuries besides the tingling in his hand, but, per company policy, he went to the hospital for 12 hours of observation.

¶ 7 After the incident, Potelco disciplined every member of the work crew with a verbal warning and three days of leave without pay.

II. ADMINISTRATIVE ACTION

¶ 8 High voltage compliance inspector George Maxwell investigated the incident. He conferred with Potelco safety supervisors, interviewed the crew on the project, and inspected the jobsite in March 2014.

¶ 9 After completing his investigation, Maxwell cited Potelco for five WISHA violations. Violation 1-1 was for failing to ensure that the conductor being removed was under positive control while removing it, exposing four employees to an electrocution hazard. Violation 1-2 was for failing to establish an EPZ, exposing two employees to an electrocution hazard. Violation 1-3 was for failing to ensure that another employee was present positionally because one employee was on the ground while the other was in an aerial device. Violation 1-4 was for Potelco’s failure to develop a formal accident prevention program (APP) because its safety manual policy was not as effective as a Department of Labor and Industries (L&I) rule. Violation 2-1 was for failing to enter the number of employees and hours worked into 2013 Occupational Safety and Health Administration (OSHA) form 300A. Maxwell categorized the first four violations as "serious" and the recordkeeping violation as "general."

¶ 10 For each serious violation, Maxwell assessed a severity rating of 6 out of 6 and a probability rating of 4 out of 6.² Former WAC 296-900-14010 (2006). Multiplying these together produced a base gravity of 24, for a penalty of $5,500. Former WAC 296-900-14010. Maxwell assigned Potelco a good faith rating of "poor," adding an additional 20 percent to each penalty for a total of $6,600 for each of the four serious violations. Former WAC 296-900-14015 (2006). Maxwell assessed the lowest possible penalty of $100 for the general violation.

¶ 11 Potelco appealed the citation. L&I held an informal conference and issued a corrective notice of redetermination (CNR). L&I affirmed all five violations from the citation. Potelco appealed again to the BIIA.

A. BIIA PROCEEDINGS ³

¶ 12 The BIIA held a hearing in which Murphy, Laufenberg, and Maxwell testified to the above facts. L&I offered into evidence documents regarding three prior WISHA violations by Potelco. Two of these cases involved EPZ rule violations from 2011.

¶ 13 Potelco introduced evidence about its safety program. Potelco policy included random safety audits where auditors inspected jobsites to evaluate them for compliance with Potelco policy and L&I rules. Potelco audited the Olympia jobsite at issue at least once during the project.

¶ 14 Bryan Sabari, Potelco vice president of safety training and compliance, testified that Potelco employees receive 40 to 60 hours of safety training per year. He testified that all employees have the authority to stop work in the case of a safety violation. He also stated that Potelco has taken steps to correct its past EPZ violations by implementing EPZ training programs several times in the past five years. He testified that Potelco addressed the topic in its new hire orientation, as well as in a two-day OSHA course. It also addressed EPZ as a monthly safety topic. Potelco also identified projects that could include EPZ-related hazards and sent a safety person to the pre-job safety meeting to cover the topic with employees. Sabari said he expected employees to follow their safety training.

¶ 15 Each day of the project, Laufenberg, as project foreman, would lead a "tailboard" meeting, a pre-job safety briefing that included risks associated with the day’s tasks, what hazards and weather conditions to expect, and a general overview of the day’s work.

¶ 16 The BIIA issued an order affirming all five violations. Potelco appealed the BIIA order to the superior court, which affirmed all five violations. Potelco appealed that decision to this court.

ANALYSIS

I. LEGAL PRINCIPLES

¶ 17 We review BIIA decisions directly based on the record before the agency. W. Oilfields Supply v. Dep’t of Labor & Indus. , 1 Wash. App. 2d 892, 900, 408 P.3d 711 (2017). We review challenged findings of fact to determine whether they are supported by substantial evidence and, if so, whether the findings support the conclusions of law. J.E. Dunn Nw., Inc. v. Dep’t of Labor & Indus. , 139 Wash. App. 35, 42, 156 P.3d 250 (2007). Substantial evidence is "evidence ‘in sufficient quantum to persuade a fair-minded person of the truth of the declared premise.’ " J.E. Dunn Nw. , 139 Wash. App. at 43, 156 P.3d 250 (quoting Holland v. Boeing Co. , 90 Wash.2d 384, 390-91, 583 P.2d 621 (1978) ).

¶ 18 We do not reweigh the evidence on appeal. Potelco, Inc. v. Dep’t of Labor & Indus. , 194 Wash. App. 428, 434, 377 P.3d 251, review denied , 186 Wash.2d 1024, 383 P.3d 1014 (2016). In determining whether substantial evidence supports BIIA findings, we view the evidence in the light most favorable to the party that prevailed before the BIIA. Potelco , 194 Wash. App. at 434, 377 P.3d 251. Unchallenged findings of fact are verities on appeal. Mid Mountain Contractors, Inc. v. Dep’t of Labor & Indus. , 136 Wash. App. 1, 4, 146 P.3d 1212 (2006). If substantial evidence supports the findings of fact, we decide if those findings support the BIIA’s conclusions of law. Potelco , 194 Wash. App. at 434, 377 P.3d 251.

II. KNOWLEDGE OF VIOLATIONS

¶ 19 Potelco contends that L&I failed to meet its burden to prove Potelco " ‘knew, or through the exercise of reasonable diligence, could have known’ " of the violative conditions underlying violations 1-1, 1-2, and 1-3. Appellant’s Opening Br. at 9 (quoting RCW 49.17.180(6) ).

¶ 20 To establish a prima facie case of a serious WISHA violation, L&I must prove

"(1) the cited standard applies; (2) the requirements of the standard were not met; (3) employees were exposed to, or had access to, the violative condition; (4) the employer knew or, through the exercise of reasonable diligence, could have known of the violative condition; and (5) there is a substantial probability that death or serious physical harm could result from the violative condition."

Frank Coluccio Constr. Co. v. Dep’t of Labor & Indus. , 181 Wash. App. 25, 36-37, 329 P.3d 91 (2014) (internal quotation marks omitted) (quoting Wash. Cedar & Supply Co. v. Dep’t of Labor & Indus. , 119 Wash. App. 906, 914, 83 P.3d 1012 (2003) ). Potelco challenges only the evidence supporting the fourth element of knowledge.

¶ 21 L&I may show constructive knowledge "through evidence that a violation was in plain view." Potelco , 194 Wash. App. at 439, 377 P.3d 251. Moreover, "when a supervisor has actual or constructive knowledge of a safety violation, such knowledge can be imputed to the employer." Potelco , 194 Wash. App. at 440, 377 P.3d 251. When a work site is exposed, "any bystander—but especially the project foreperson" may observe the violation. Potelco , 194 Wash. App. at 440, 377 P.3d 251.

A. FAILURE TO MAINTAIN POSITIVE CONTROL

¶ 22 Potelco contends that the BIIA erred by finding that Potelco knew of...