SEFNCO Commc'ns, Inc. v. Dep't of Labor & Indus.
| Decision Date | 19 April 2022 |
| Docket Number | 55458-5-II |
| Parties | SEFNCO COMMUNICATIONS, INC., Appellant, v. DEPARTMENT OF LABOR AND INDUSTRIES, Respondent. |
| Court | Washington Court of Appeals |
UNPUBLISHED OPINION
BASSETT, JPT. [1]
SEFNCO Communications, Inc. appeals two citations issued by the Department of Labor and Industries (DLI) under the Washington Industrial Safety and Health Act of 1973[2] (WISHA) following the injury to one of its employees when he contacted an energized power line during the installation of a telecommunications line. The Board of Industrial Insurance Appeals (Board) upheld the citations, one for a violation of former WAC 296-32-220(10)(a) (2007), a serious violation, for allowing the injured employee to come too close to energized power lines, and the other for a violation of former WAC 296-32-230(4)(c) (2014), a general violation, for having an employee at the job site who did not have the required first aid training.
SEFNCO argues that the citation for the serious violation was improper because the findings that the employee was a supervisor and that SEFNCO had constructive knowledge of the serious violation are not supported by substantial evidence. SEFNCO further argues that even if the constructive knowledge finding was supported by substantial evidence, SEFNCO established the defense of unpreventable employee misconduct under RCW 49.17.120(5)(a). SEFNCO also argues that the evidence was insufficient to support the citation for the general violation because the DLI failed to prove that the employee at issue was required to have first-aid training.
We hold that (1) substantial evidence supports the finding that the injured employee was a supervisor, (2) substantial evidence supports the Board's constructive knowledge finding, (3) the Board's findings are inadequate to allow review of its conclusion that the unpreventable employee misconduct defense did not apply, and (4) SEFNCO's argument that the DLI failed to prove that the employee who was the subject of the general violation was required to have first aid training under former WAC 296-32-230(4)(c) has no merit. Accordingly we remand this matter to the Board to make the necessary factual determinations and to determine whether SEFNCO's unpreventable employee misconduct defense applies. We otherwise affirm.
FACTS
On July 11, 2017, Kenneth Nelson, a SEFNCO employee, was injured when he contacted an energized power line while working on a nearby telecommunications line. The DLI investigated the incident and issued four citations, two of which are relevant in this appeal.
The first relevant citation was for a violation of former WAC 296-32-220(10)(a), a "[s]erious" violation, based on SEFNCO's failure to ensure that Nelson "did not approach or take any conductive objects, to include the employee, closer to any electrically energized overhead lines" than allowed under Table 1 of chapter 296-32 WAC. Clerk's Papers (CP) at 39. The second relevant citation was for a violation of former WAC 296-32-230(4)(c), a general violation, based on SEFNCO's failure to provide first aid training to the employee who was assisting Nelson at the time of the incident.
The DLI issued corrective notices of redetermination (CNRs) rejecting the assertion that the DLI had not established the knowledge element and SEFNCO's unpreventable employee misconduct defense. SEFNCO appealed to the Board.
Following a hearing at which evidence and testimony was taken, an industrial appeals judge (IAJ) issued a proposed decision and order affirming the CNRs for the violations of former WAC 296-32-220(10)(a) and former WAC 296-32-230(4)(c).[3]
The introduction of the IAJ's proposed decision and order stated:
SEFNCO Communications, Inc. filed an appeal from a [CNR] that found two serious violations and one general violation. The first serious violation is for failing to ensure that an employee not come in contact with an energized power line and the second is for not maintaining the scene of the accident so that it could be adequately inspected by the [DLI]. . . . The general violation is because an employee did not have first aid/CPR training at the time an employee was injured. The employer's defense to the first violation is that this was an unforeseen accident and secondarily that there was employee misconduct. The [DLI] has proven this violation with the employer's constructive knowledge of the hazard and the misconduct defense does not apply. . . . The general violation has been adequately proven because Mr. James, Mr. Nelson's co-worker on the day of accident, did not have the proper first aid training. The CNR is AFFIRMED AS MODIFIED.
Id. at 48 (emphasis added).
In the "discussion" section of the proposed decision and order, the IAJ summarized the testimony and discussed the issues.[4] Id. (capitalization omitted). The IAJ's summary of the testimony stated that on July 11, 2017, Nelson, a "splicer/aerial technician for SEFNCO," sustained a burn injury after contacting a high voltage electrical wire. Id.
Nelson testified that on the day of the accident, he was "build[ing] a new strand of cable and connect[ing] it to a business." Id. When Nelson arrived at the work site, he photographed an area of the work zone in which he had concern about his ability to perform the job safely due to ground clearance issues. After sending a photograph to his supervisor Timothy Lundell and speaking with Lundell, Nelson proceeded with the work.
As this work progressed, Nelson "used a lasher to put the new line of fiber optics onto the existing line." Id. During this process, Nelson was in an elevated bucket truck and was working with a "ground hand, Nathan James." Id. at 49. The IAJ summarized the accident as follows:
The accident occurred when the lasher got hung up in the trees and Mr. Nelson then got into the bucket of the boom truck and raised it to try to maneuver the lasher.[5]When the cable with the lasher freed the bucket on the boom bounced, causing the power line to make contact with his right shoulder. Mr. Nelson fell into the bucket and Mr. James lowered it to the ground.
Lundell, a construction manager on the project, testified that before the work started on this project, a SEFNCO engineer had reviewed the site and developed a construction plan. "This report could include hazards of the job." Id.
Lundell also "described the minimum approach distance (MAD) for working around electrical wires." Id. Lundell stated that SEFNCO "[e]mployees are trained to supply sufficient space away from the power lines because the electricity will take the path of least resistance, which can be the human body." Id. Lundell testified that Nelson was the only person to have been injured in this way that Lundell was aware of.
Lundell further "described the bucket truck used by Mr. Nelson and how the bucket will bounce." Id. Lundell stated that he had spoken with Nelson on the phone before Nelson started working and was aware of the sag in the lines. But Lundell stated that the sag in the lines that Nelson was concerned about was common and that he (Lundell) "did not believe that there would be a problem with MAD in doing this work," even though running the new line through the trees in the area "could be a challenge." Id. Lundell also testified that Nelson was "in charge on this job site," but that Nelson "did not have the authority to perform tasks such as hiring or firing." Id.
Rod Julian, "the statewide telecom health and safety officer for the [DLI]," testified that following an inspection of the site after the accident, the DLI "cited SEFNCO with a serious violation of WAC 296-32-220(10)(a) because the employer failed to ensure that a SEFNCO employee not come into contact with an energized power line." Id. at 49, 50. Julian also determined that there were 7200 volts in the line, which allowed him to establish the proper distances for MAD.
Julian also testified that the DLI issued "[a] general violation of WAC 296-32-230(4)(c) . . . because of the lack of first aid/CPR training for Mr. James." Id. at 50. Julian testified that he examined SEFNCO's records and, although James was "slated" to have the training soon, there was no record of James having received first aid-CPR training by the time of the accident. Id.
Julian agreed that "Nelson was not a company supervisor," but Julian testified that Nelson had been in charge of James when this accident occurred. Id. at 51. Julian stated that "[h]e believed that Mr. Nelson was a competent worker at this site and that the employer could rely on his abilities and that under the company plan no work was to be performed near the power line."[6] Id.
Rocky Wallace, SEFNCO's safety and compliance officer, testified about SEFNCO's training, disciplinary program, safety audits, and accident prevention programs. Wallace "reviewed the work Mr. Nelson was to perform on July 11, 2017 and, [stated that] if the trees seen in [the photograph Nelson had taken] were trimmed, he did not see a hazard in performing this work." Id. at 51. Wallace also "identified the lasher and described how [ ]it works." Id. Additionally, "Wallace agreed that Mr. Nelson was the competent person on site and responsible for getting the job done and directing the crew." Id.
Chris McBride, a lead for SEFNCO, testified that he and his crew were assigned "to secure the work area" after the accident. Id. McBride had worked with Nelson "on numerous occasions," and was "well aware of MAD and has received training on it." Id. McBride also reviewed Nelson's photograph and stated that "he did not observe any issue with power line difficulties if the trees were trimmed." Id.
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