Shimmick Constr. Co. v. State

• Decision Date: 23 March 2020
• Docket Number: No. 79619-4-I,79619-4-I
• Citation: 460 P.3d 192,12 Wash.App.2d 770
• Court: Washington Court of Appeals
• Parties: SHIMMICK CONSTRUCTION COMPANY, INC., Appellant, v. State of Washington, DEPARTMENT OF LABOR AND INDUSTRIES, Respondent.

12 Wash.App.2d 770

460 P.3d 192

SHIMMICK CONSTRUCTION COMPANY, INC., Appellant,

v.State of Washington, DEPARTMENT OF LABOR AND INDUSTRIES, Respondent.

No. 79619-4-I

Court of Appeals of Washington, Division 1.

Filed March 23, 2020

Aaron Kazuo Owada, Sean Walsh, Richard Isaiah Skeen, Owada Law PC, 975 Carpenter Rd. NE Ste. 204, Lacey, WA, 98516-5560, for Appellant.

Seattle Labor & Industries A.g. Office, Attorney at Law, William Henry, Attorney at Law, 800 Fifth Ave., Suite 2000, Ms-tb-14, Seattle, WA, 98104-3188, for Respondent.

PUBLISHED OPINION

Dwyer, J. ¶ 1 Shimmick Construction Company (Shimmick) appeals from a decision of the Board of Industrial Insurance Appeals (the Board). The Board imposed penalties upon Shimmick for two serious violations of applicable crane safety regulations. Finding no error, we affirm.

I

¶ 2 In October 2016, Shimmick installed an underground electrical panel vault as part of a large construction project. This vault was composed of six concrete panel sections that, due to their weight, were required to be individually lowered into an open excavation. Directly above this excavation, and about 40 feet above street level, were three high-voltage power lines carrying a total of 26 kilovolts of electricity. These lines were not de-energized at the time Shimmick lowered the panel sections into place.

¶ 3 Shimmick was informed that, owing to the proximity of these energized power lines, a vertical crane was not a feasible option for this task. Thus, Shimmick decided to outfit two tow trucks with special equipment to facilitate lowering the panel sections. Each of the trucks was equipped with outriggers, a hoist line, and an extendible boom that, when fully extended and in the vertical position, could reach over 40 feet above the ground. Shimmick’s plan was to lower each panel section individually by attaching the load to both tow trucks and moving the trucks’ booms in tandem. Specifically, the trucks’ booms, once attached to a panel section with the hoist line, would hoist the section from a flatbed trailer and move it horizontally toward the excavation, each boom retracting as it neared the other to prevent a collision.

¶ 4 Shimmick knew that the presence of energized power lines directly above the excavation would pose a risk—electrocution was possible even if no contact with the line was made. Thus, it planned the lifts to ensure that all of its equipment would remain more than 10 feet below the power lines. Shimmick employed dedicated spotters to keep watch and ensure that the booms did not contact the power lines. The spotters were equipped with air horns which were to be sounded if a boom appeared to be too close to a power line. Shimmick did not, however, believe that it was subject to Department of Labor and Industries (the Department) regulations restricting the operation of cranes beneath energized power lines.

¶ 5 On the day the lift was to take place, Shimmick positioned the tow trucks on opposite sides of the excavation. Each vehicle was placed about five feet from the edge of the excavation, almost directly below the power lines, and was operated by remote control. Neither of the tow truck operators had obtained certification to operate a crane, and neither tow truck had been inspected, tested, or certified by an accredited crane inspector. Nevertheless, the lifts went as planned, and all six panel sections were successfully lowered into place.

¶ 6 The next day, the Department received a photograph from an anonymous source that showed the two tow trucks hoisting one of the panel sections in close proximity to the power lines. The Department sent an inspector, Mark Valgardson, to investigate. Valgardson met with Shimmick’s on-site superintendent, Tim Harris. Harris told Valgardson that, although he was unsure of the mandatory clearance required between the booms and the power lines, "We were watching it. I had a spotter. We were watching."

¶ 7 Valgardson determined that the tow trucks were subject to the Department’s crane regulations because they were employed to hoist and horizontally move a suspended load. In addition, Valgardson determined that these regulations prohibited equipment such as the truck-mounted booms, which were capable of reaching the energized lines when vertical and fully extended, from being operated anywhere beneath the lines. This led Valgardson to conclude that Shimmick’s operation of the trucks beneath the energized lines exposed its workers to the risk of electrocution.

¶ 8 Accordingly, the Department cited Shimmick for several violations of the Washington Industrial Safety and Health Act of 1973¹ (WISHA). It issued two general violations: violation of WAC 296-155-53401(5)(a), which requires all cranes to be certified, and violation of WAC 296-155-53401(5)(g), which requires certification of crane operators. It also assessed two serious violations. The first was a violation of WAC 296-155-53408(2)(d)(i), which provides:

No part of the crane/derrick, load line or load (including rigging and lifting accessories) is allowed below a power line unless you have confirmed that the utility owner/operator has deenergized and (at the worksite) visibly grounded the power line, except where one of the exceptions in (d)(ii) of this subsection apply.

The second was a violation of WAC 296-155-53401(5)(i), which allows

crane operation near electric power lines only when the requirements of WAC 296-155-53408 have been met.

The total monetary penalty assessed for these violations was $4,800.

¶ 9 Shimmick appealed the citations. In its appeal, Shimmick argued that tow trucks are not subject to the Department’s crane regulations and that, in any event, no employee was exposed to a substantial probability of serious injury, because the tow trucks’ extendible booms never came within 10 feet of the power lines. In a proposed decision and order, an industrial appeals judge reduced both serious violations to general violations and reduced the monetary penalty to $0.

¶ 10 Both parties petitioned the Board for review of this proposed decision. After granting review, the Board affirmed the Department’s citations as originally issued. It found, in relevant part, that

2. ... Shimmick Construction Company used two tow trucks as cranes to lift the cement panels off a flatbed semi-truck and place them in the excavation. Each tow truck was equipped with a boom which, fully extended at its maximum 60-degree angle, would have reached 44 vertical feet toward the energized power line. In violation of WAC 296-155-53408(2)(d)(i), these lifts were carried out directly under an energized 26 kV power line that was approximately 45 feet above the street surface. As a result employees were exposed to a hazard of electrocution ....

3. At the lift site ... Tim Harris was the Lift Manager and Site Superintendent, and Jeff Pellham was the Site Foreman for Shimmick Construction Company. Both men were aware of the energized 26 kV line that was above the work site, in violation of WAC 296-155-53401(5)(i). As a result, employees were exposed to a hazard of electrocution as cited in Item 1-1b.

4. The two tow trucks used in the lift on October 20, 2016, by Shimmick Construction Company were "power operated equipment used in construction that can hoist, lower, and horizontally move a suspended load," and were used as such for this lift. They meet the definition of a "crane" as described in WAC 296-155-52902.

5. The tow trucks used in this lift were not certified as cranes prior to their usage pursuant to WAC 296-155-53401(5)(a) and as a result employees were exposed to possible injury.

6. The tow truck operators involved in this lift were not certified pursuant to WAC 296-155-53401(5)(g) prior to the October 20, 2016 lift and as a result employees were exposed to possible injury.

¶ 11 The Board rejected Shimmick’s contention that there was no employee exposure to danger because there was no substantial probability of serious injury. As the Board’s decision explained, "substantial probability" refers not to the likelihood that the harm will occur but, rather, the likelihood that any harm that would result from the violation would be serious injury or death. Because multiple employees were adjacent to the tow trucks as they performed the lifts and faced a risk of electrocution if any part of the equipment was energized, the Board found that Shimmick exposed its employees to this violative condition.

¶ 12 Shimmick appealed to the superior court, which affirmed the Board’s decision. Shimmick appeals anew to us.

II

¶ 13 Shimmick first avers that substantial evidence did not support the Board’s finding that the tow trucks used in its operation were, in fact, cranes. Thus, it asserts, the statutory and regulatory standards governing the use of cranes did not apply to its tow trucks. Shimmick is wrong. The unambiguous language of the applicable statute and the Department’s regulations makes clear that tow trucks are considered cranes when they are used to hoist, lower, or horizontally move a suspended load, as occurred herein.

A

¶ 14 In a WISHA appeal, we review the Board’s decision based on the record before the agency. Erection Co. v. Dep’t of Labor & Indus., 160 Wash. App. 194, 201, 248 P.3d 1085 (2011). The Board’s findings of fact are conclusive if they are supported by substantial evidence. Erection Co., 160 Wash. App. at 202, 248 P.3d 1085 ; RCW 49.17.150(1). Evidence is substantial if it is enough to convince a fair-minded person of the truth of the stated premise. Mowat Constr. Co. v. Dep’t of Labor & Indus., 148 Wash. App. 920, 925, 201 P.3d 407 (2009). We do not re-weigh the evidence on appeal. Potelco, Inc. v. Dep’t of Labor & Indus., 194 Wash. App. 428, 434, 377 P.3d 251 (2016). Instead, we construe the evidence in the light most favorable to the party that has prevailed in the administrative proceeding. Frank Coluccio Constr. Co. v. Dep’t of Labor & Indus., 181 Wash. App. 25, 35, 329 P.3d 91 (2014).

¶ 15 We review...