The Erection Co. Inc. v. Dep't of Labor

• Decision Date: 22 February 2011
• Docket Number: No. 28844–7–III.,28844–7–III.
• Citation: 160 Wash.App. 194,248 P.3d 1085
• Court: Washington Court of Appeals
• Parties: The ERECTION COMPANY, INC., Appellant,v.DEPARTMENT OF LABOR AND INDUSTRIES of the State of Washington, Respondent.

160 Wash.App. 194

248 P.3d 1085

The ERECTION COMPANY, INC., Appellant,

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

No. 28844–7–III.

Court of Appeals of Washington, Division 3.

Feb. 22, 2011.

David E. Chawes, Preg, O'Donnell & Gillett PLLC, Mark F. O'Donnell, Preg O'Donnell et al., Seattle, WA, for Appellant.Masako Kanazawa, Attorney at Law, Seattle, WA, for Respondent.SIDDOWAY, J.

[160 Wash.App. 198] ¶ 1 In July 2006 an employee of The Erection Company Inc. (TEC) installing roof decking at a Quincy, Washington, construction site was killed when the bundle of decking material to which he had affixed his safety lanyard fell from the roof structure. TEC appeals penalties imposed for safety violations following an investigation by the Department of Labor and Industries; it contends that it could not have foreseen that its employee would attach his safety lanyard to moving material and neither the evidence nor the law supports the Board of Industrial Insurance Appeals' conclusion that it had constructive knowledge of a dangerous condition. It also challenges the enhancement of two penalties as repeat violations.

¶ 2 While there is no evidence that TEC had actual knowledge of its employees' hazardous practice, substantial evidence supports the board's conclusion, affirmed by the superior court, that it could, with reasonable diligence, have known of the hazard created by its unusual practice of installing safety lines on moveable material. We find no legal error in the board's application of the constructive knowledge standard and substantial evidence supports the board's factual findings. We therefore affirm.

FACTS AND PROCEDURAL BACKGROUND

¶ 3 TEC is a steel erection subcontractor. In 2006, it began work on a data center being constructed by Microsoft Corporation in Quincy, Washington. Part of TEC's work on the project involved securing sheets of metal decking across the top of the building at a height of around 30 feet. The steel roof decking material came in bundles weighing between 2,000 and 3,000 pounds. Cranes would land the decking material bundles on the rooftop trusses so that the workers could lay them out and secure them to the beams.

¶ 4 Because of the dangers of working at such heights, TEC installed safety lines made of three-eighths inch aircraft cable, called “catenary lines,” to which the workers attached themselves. Primary catenary lines were attached to the structural members prior to erection, running the full length of each beam, and a high line, safety cable guardrail system was installed. TEC also attached catenary lines to each bundle of decking material.

¶ 5 Two weeks before the accident, a Department of Labor and Industries compliance and safety and health officer, Tim McMinn, inspected the project site, reviewed TEC's accident prevention and fall protection plans, and found no violations. At the time, the building had no roof. McMinn later testified that he could not recall seeing any catenary lines attached to decking material bundles during that inspection.

¶ 6 On the day of the accident, Travis Watts and Brian Pitts, both journeymen ironworkers, were securing metal decking. In order to make their work easier, the two decided to relocate a bundle of decking material that was in their way, which is a common practice referred to as “endoing.” They moved the bundle using a “come-along,” a ratchet system used to move heavy loads. Watts connected the come-along to the bundle and to a beam and operated the come-along. Pitts watched to see when the bundle had been securely relocated. After the bundle had been moved to a point where it spanned three beams, one in the middle and one on each end, Pitts called to Watts that the location was good. Watts released the come-along, at which point the bundle moved a bit more—enough to come off the beam providing support at one end. The bundle teetered and fell. Watts, who had secured his safety lanyard to the bundle, fell with the bundle to his death.

¶ 7 As a result of the accident, the department began an investigation that resulted in a citation against TEC for violations of the fall restraint/arrest system standard, fall protection plan requirement and other safety regulations. Two violations were charged as repeat violations based on a prior “repeat serious” violation of the fall restraint and fall arrest system requirement at WAC 296–155–24510. The department assessed a total penalty of $10,500.

¶ 8 TEC contested the citation. Following a three-day hearing, the industrial appeals judge (IAJ) issued a proposed decision and order vacating three of the four citation items. The department petitioned the Board of Industrial Insurance Appeals to review the decision. The board granted review, reversed the decision of the IAJ, and affirmed the original citation in full. The superior court affirmed the board's decision and TEC timely appealed.

¶ 9 TEC raises four issues on appeal: (1) the board applied an erroneous standard of law in finding that TEC knew, “should have known,” or through the exercise of reasonable diligence could have known about the alleged violative conditions; (2) there is no substantial evidence supporting the board's finding of fact 5 that TEC had constructive knowledge that its employees were tying off to bundles that were being moved; (3) the department failed to present evidence that TEC had constructive knowledge that its fall protection plan and accident prevention plan were deficient; and (4) there is no substantial evidence that TEC's prior citations relied upon for a repeat violation penalty were for violations of the same or substantially similar hazards as alleged in the citation.

ANALYSIS

¶ 10 The legislature enacted the Washington Industrial Safety and Health Act of 1973 (WISHA) “to assure, insofar as may reasonably be possible, safe and healthful working conditions for every man and woman working in the state of Washington.” RCW 49.17.010. The Department of Labor and Industries is charged with promulgating regulations under WISHA, RCW 49.17.040, and employers are responsible for complying with these regulations in their oversight of all employees. Express Constr. Co. v. Dep't of Labor & Indus., 151 Wash.App. 589, 596, 215 P.3d 951 (2009). When the department charges an employer with a WISHA violation, the department bears the initial burden of proving the violation occurred. Id. at 597, 215 P.3d 951.

Standard of Review

¶ 11 WISHA governs judicial review of decisions issued by the Board of Industrial Insurance Appeals. RCW 49.17.140, .150(1). We review a decision by the board directly, based on the record before the agency. Legacy Roofing, Inc. v. Dep't of Labor & Indus., 129 Wash.App. 356, 363, 119 P.3d 366 (2005).

¶ 12 We review the board's interpretation of statutes and regulations de novo, Prezant Assocs., Inc. v. Dep't of Labor & Indus., 141 Wash.App. 1, 7, 165 P.3d 12 (2007), but give substantial weight to an agency's interpretation of a regulation within its area of expertise, Wash. Cedar & Supply Co. v. Dep't of Labor & Indus., 119 Wash.App. 906, 913, 83 P.3d 1012 (2004). WISHA statutes and regulations are to be interpreted liberally in order to achieve their purpose of providing safe working conditions for every worker in Washington. Inland Foundry Co. v. Dep't of Labor & Indus., 106 Wash.App. 333, 336, 24 P.3d 424 (2001).

¶ 13 The findings of the board with respect to questions of fact, if supported by substantial evidence on the record considered as a whole, are conclusive. RCW 49.17.150(1). Substantial evidence is evidence that would persuade a fair-minded person of the truth or correctness of the matter. King County v. Cent. Puget Sound Growth Mgmt. Hearings Bd., 142 Wash.2d 543, 553, 14 P.3d 133 (2000); Danzer v. Dep't of Labor & Indus., 104 Wash.App. 307, 319, 16 P.3d 35 (2000), review denied, 143 Wash.2d 1020, 25 P.3d 1019 (2001). We view the evidence and its reasonable inferences in the light most favorable to the prevailing party—here, the department—in the highest forum that exercised fact-finding authority—here, the board. See Johnson v. Dep't of Health, 133 Wash.App. 403, 411, 136 P.3d 760 (2006). We then review whether the findings of fact support the conclusions of law. Prezant, 141 Wash.App. at 7, 165 P.3d 12 (citing RCW 49.17.150; Mid Mountain Contractors, Inc. v. Dep't of Labor & Indus., 136 Wash.App. 1, 4, 146 P.3d 1212 (2006)).

Board Conclusion Regarding What TEC “Should Have Known”

¶ 14 RCW 49.17.180(2) directs that any employer receiving a citation for a “serious” violation “shall be assessed a civil penalty.” A “serious violation” is one where there is a “substantial probability that death or serious physical harm could result” from the violation. RCW 49.17.180(6); Lee Cook Trucking & Logging v. Dep't of Labor & Indus., 109 Wash.App. 471, 482, 36 P.3d 558 (2001). Among the elements that the department must show in order to establish a prima facie case of a “serious violation” is that the employer knew or, through the exercise of reasonable diligence, could have known of the violative condition. RCW 49.17.180(6); SuperValu, Inc. v. Dep't of Labor & Indus., 158 Wash.2d 422, 433, 144 P.3d 1160 (2006). In challenging the board's findings of “serious” violations, TEC challenges only the board's finding 5: that TEC “knew, should have known, or through the exercise of reasonable diligence could have known” of the violative practice of employees tying off to unsecured lines. Clerk's Papers (CP) at 23 (emphasis added).

¶ 15 TEC contends that the board's finding that it “should have known” of the violative practice applies an erroneous legal standard, contrasting that finding with WISHA, whose standard for constructive knowledge is that a violative condition exists and “the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.” RCW 49.17.180(6) (emphasis added). It argues that...