Potelco Inc. v. Department Of Labor & Industries Of The State Of Washington ( 2019 )


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  • IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
    POTELCO INC.,
    No. 78433-1-1
    Appellant,
    DIVISION ONE
    V.
    UNPUBLISHED OPINION
    WASHINGTON STATE,
    DEPARTMENT OF LABOR AND
    INDUSTRIES,
    Respondent.                  FILED: June 10, 2019
    APPELWICK, C.J. — The Department cited Potelco for failing to ensure that
    a crane was certified and proof load tested. The Board of Industrial Insurance
    Appeals and the trial court affirmed the citation. Potelco argues that WAC 296-
    155-52901 does not apply because it reasonably believed it was operating a digger
    derrick and not a crane, and it was not performing "construction work" as statutorily
    defined. It argues alternatively that this court should downgrade the violation from
    general to de minimis. We affirm. ,
    FACTS
    In November 2015, Potelco Inc., a utility contractor, was performing utility
    maintenance work on an existing utility line on NE 116th Street in Bellevue. On
    November 6, Ronald Solheim, a crane safety supervisor with the Department of
    Labor and Industries (Department), drove by the worksite on his way to work.
    Solheim noticed some peculiarities with the equipment the workers were using.
    No. 78433-1-1/2
    He notified Potelco that he was going to visit the jobsite for an inspection the
    following morning.
    Solheim went to the site the next day and photographed the equipment'
    Potelco had been using the day before. A company called Elliott Equipment
    Company manufactured the equipment, and its model number was 30105. The
    equipment had a nylon hoist line at its base, which Solheim testified was "very
    unusual on this type of crane."
    Potelco line crew foreman Dean Davis was present at the jobsite when
    Solheim did his inspection. Davis testified that he believed the equipment that
    Potelco was using was a digger derrick, not a crane.
    Of his inspection, Solheim stated,
    [W]hat caught my attention was that yellow hoist rope or hoist line. I
    wanted to see exactly what it was because I'd only heard of one other
    mobile boom truck in the entire industry that had been approved to
    use the nylon type line for hoisting and that was manufactured by
    Grove.
    Solheim also photographed the manufacturer's plate, which was attached
    to the base of the boom near the operator station. This plate identifies the
    machine's serial number, load charts, manufacture date, whether it has an
    insulating boom, and the standard under which it was manufactured. Solheim
    testified that the Elliott 30105 complied with the ANSI/ASME-B30.5 standard.2
    ASME B-30.5 is a national standard that applies specifically to all mobile cranes.
    I The Department refers to the equipment as a "crane," while Potelco refers
    to the same piece of equipment as "equipment," "vehicle" or "digger derrick."
    21'ASME" is an acronym for the American Society of Mechanical Engineers.
    "ANSI" is an acronym for American National Standards Institute.
    2
    No. 78433-1-1/3
    Solheim testified that all of the digger derricks that he has seen have been
    manufactured under a different standard. Solheim also testified that the load chart
    attached to the operation station for the equipment indicated that it met the ASME
    B30.5 requirements. He stated that if the crane had been manufactured under the
    digger derrick standard, the load chart "would definitely be different."
    Describing how the piece of equipment that he inspected differed from a
    digger derrick, Solheim stated,
    [I]t doesn't have the right number, D115, on the boom or on the load
    charts. [A digger derrick] has a different size hoist line on the load
    chart than the one that 1 inspected. And so the [Load Moment
    Indicator (LMI)] would be -- information being put out by the LMI
    would be definitely different and require some modification to the
    computer, possibly.
    The outriggers on a Digger Derrick are allowed to be extended
    at three different positions which changes the load charts. The one
    [I inspected] is not allowed to be at three different positions.
    Solheim further explained that the different standards under which the two
    products are manufactured is a "definite indication in determining whether it's a
    Digger Derrick." Solheim testified that Potelco had both digger derricks and cranes
    in their fleet.
    Based on his investigation, Solheim determined that the Elliott 30105 was
    a "mobile crane with attachments," and not a digger derrick. Solheim testified that
    he asked Potelco for documents establishing that the equipment in question was
    a digger derrick as they claimed, but never received that information. Following
    Solheim's inspection, the Department cited Potelco for failing to ensure the Elliott
    30105 was certified and proof load tested, as required by WAC 296-155-52901.
    3
    No. 78433-1-1/4
    Potelco appealed the citation. Potelco argued that WAC 296-155-52901
    did not apply because (1) it was performing "utility work," and not "construction
    work," and (2) it reasonably believed it was operating a digger derrick and not a
    crane. In a proposed decision and order, the Board of Industrial Insurance Appeals
    (Board) rejected Potelco's argument that it was not engaged in construction work.
    But, it concluded that Potelco, through exercising reasonable diligence, could not
    have known that the equipment was a crane subject to WAC 296-155-52901, and
    vacated the citation.
    The Department petitioned for review of the proposed order. The Board
    found that Potelco's work replacing utility poles was "construction," as statutorily
    defined. The Board also found the equipment Potelco used was a crane as defined
    by WAC 296-155-52902. Finally, the Board found that Potelco, through exercising
    reasonable diligence, could have known that the Elliott 30105 was a crane. The
    Board affirmed the citation. Potelco appealed the Board's decision and order to
    the superior court, which also affirmed. Potelco appeals.
    DISCUSSION
    Potelco makes three arguments. First, it argues that, because it reasonably
    believed it was operating a digger derrick and not a crane, WAC 296-155-52901
    does not apply. Second, it argues that, because Potelco was not performing
    "construction work" as statutorily defined, this court should vacate the citation.
    Third, it argues alternatively that this court should downgrade the violation from
    general to de minimis.
    4
    No. 78433-1-1/5
    I.   Standard of Review
    This court reviews a decision by the Board directly, based on the record
    before the agency. Pilchuck Contractors, Inc. v. Dep't of Labor & Indus., 170 Wn.
    App. 514, 517, 
    286 P.3d 383
    (2012). We review findings of fact to determine
    whether they are supported by substantial evidence and, if so, whether the findings
    support the conclusions of law. 
    Id. Substantial evidence
    is evidence in sufficient
    quantum to persuade a fair-minded person of the truth of the declared premise.
    
    Id. We review
    questions of law de novo, including an agency's construction of a
    regulation, but substantial weight is given to an agency's interpretation of a
    regulation. 
    Id. Proposed decisions
    and orders are not the decisions and orders of
    the Board—they do not become the official Board decision until the Board formally
    adopts them. Stratton v. Dep't of Labor & Indus., 
    1 Wash. App. 77
    , 79,459 P.2d 651
    (1969).
    II.   Type of Equipment
    Potelco asserts first that it reasonably believed it was operating a digger
    derrick and not a crane, and, therefore, WAC 296-155-52901 does not apply.
    All cranes and derricks covered in WAC 296-155-52900 and not exempt in
    subsection (3) of that section must be certified and proof load tested annually by
    an accredited crane certifier recognized by the Department. WAC 296-155-52901.
    The crane statutes and regulations define "crane" as "power-operated equipment
    used in construction that can hoist, lower, and horizontally move a suspended
    load." RCW 49.17.400(5); WAC 296-155-52902.
    5
    No. 78433-1-1/6
    The Board found that the Elliot 30105 was a mobile crane.3 Potelco asserts
    that the "equipment at issue has all of the characteristics of a digger derrick, and
    the evidence presented would lead a rational, fair-minded person to find that
    Potelco reasonably believed it was operating a digger derrick." It claims that it
    ordered a digger derrick, was told that it had received a digger derrick, and
    "operated the equipment only as a digger derrick." And, Potelco contends that,
    other than the data plate, nothing suggested that the equipment was anything other
    than a digger derrick.
    Citing Erection Co., Inc. v. Department of Labor and Industries, 160 Wn.
    App. 194, 248 P.3d 1085(2011), Potelco asserts that the Department fails to show
    how Potelco did not exercise reasonable diligence. In Erection Co., the court
    stated,
    "Reasonable diligence involves several factors, including an
    employer's obligation to inspect the work area, to anticipate hazards
    to which employees may be exposed, and to take measures to
    prevent the occurrence." Constructive knowledge of a violative
    condition may be demonstrated by the department in a number of
    ways, including evidence showing that the violative condition was
    readily observable or in a conspicuous location in the area of the
    employer's 
    crews. 160 Wash. App. at 206-07
    (citations omitted) (quoting Kokosing Constr. Co. v.
    Occupational Safety & Hazard Review Comm'n, 
    232 F. App'x 510
    , 521, 
    2007 WL 1544150
    , at *2)(6th Cir. 2007)).
    3 Potelco assigns error to the trial court's adoption of the Board's finding that
    the equipment was a crane, but does not argue this issue in its brief. This court
    will not consider an assignment of error where there is no argument in the brief to
    support it. DeHeer v. Seattle Post-Intelligencer, 
    60 Wash. 2d 122
    , 126, 
    372 P.2d 193
    (1962).
    6
    No. 78433-1-1/7
    The Board found that Potelco, through exercising reasonable diligence,
    could have known that the equipment was in fact a crane that was not certified
    prior to being used in 'crane operations. The Elliott 30105's load chart stated that
    the equipment was a crane. The data plate and load chart both showed that the
    Elliott 30105 complied with the ASME B-30.5 standard, which applies specifically
    to all mobile cranes, but not digger derricks. Elliott's company website identified
    the 30105 model as a "boom truck," which is a mobile crane.
    Furthermore, when Potelco first received the Elliott 30105, it had a metal
    wire hoist line. The wire line was then switched to a nylon one at Potelco's request.
    Both Potelco's fleet manager and foreperson understood that companies use
    digger derricks to conduct high voltage work because they "generally have nylon
    ropes for winch lines, whereas cranes have steel winch lines."
    Potelco points to its employee's testimony to argue that it reasonably
    believed that the equipment was a digger derrick. It argues that "the truck had all
    of the unique characteristics of a digger derrick, such as an auger, the nylon hoist
    line, and pole claw attachment." But, we do not reweigh the evidence on appeal.
    Zarala v. Twin City Foods, 
    185 Wash. App. 838
    , 867, 
    343 P.3d 761
    (2015). Instead,
    we view this evidence in the light most favorable to the party that prevailed before
    the Board—here, the Department. Frank Coluccio Constr. Co. v. Dep't of Labor &
    Indus., 
    181 Wash. App. 25
    , 35, 
    329 P.3d 91
    (2014).
    Substantial evidence supports the Board's finding that Potelco, through
    exercising reasonable diligence, could have known that the equipment was in fact
    a crane and not a digger derrick.
    7
    No. 78433-1-1/8
    III.    Construction Work
    Potelco argues second that, because it was performing utility work and not
    construction work, WAC 296-155-52901 does not apply.
    The Washington Industrial Safety and Health Act of 1973(WISHA), chapter
    49.17 RCW, certification rule applies to "[p]ower-operated cranes and derricks
    used in construction that can hoist, lower and horizontally move a suspended
    load."       WAC 296-155-52900(1)(a) (emphasis added).         WAC 296-155-52902
    defines "construction work" as,
    [A]ll or any part of excavation, construction, erection, alteration,
    repair, demolition, and dismantling of buildings and other structures
    and all related operations; the excavation, construction, alteration,
    and repair of sewers, trenches, caissons, conduits, pipelines, roads,
    and all related operations; the moving of buildings and other
    structures, and the construction, alteration, repair, or removal of
    wharfs, docks, bridges, culverts, trestles, piers, abutments, or any
    other related construction, alteration, repair, or removal work.
    Construction work does not include the normal day-to-day activities
    at manufacturing facilities or powerhouses.
    Potelco states that on November 6 and 7, 2015, it was replacing existing
    poles to raise power lines. It argues that this work does not qualify as construction
    work. And, it asserts that the work it was performing is more similar to the activities
    covered under WAC 296-155-52900(4)(t), which provides an exemption from the
    crane certification requirements for "[d]igger derricks when used for activities that
    are covered under chapter 296-45 WAC,[4]Safety standards for electrical workers."
    WAC 296-45 applies to "the operation, maintenance, and construction of
    4
    electric power generation, control, transformation, transmission, and distribution
    lines and equipment." WAC 296-45-015(1).
    8
    No. 78433-1-1/9
    The Board found that Potelco's work replacing existing utility poles
    constitutes construction as defined by the WAC. Potelco ultimately argues that it
    was exempt from the certification and load testing requirements because it
    "reasonably believed" that it was using a digger derrick for activities covered by
    WAC 296-45, which applies to safety standards for electrical workers. But, this
    exception does not apply to cranes:"Cranes other than digger derricks when used
    for activities that are covered under chapter 296-45 WAC, Safety standards for
    electrical   workers,   or    chapter   296-32   WAC,     Safety    standards    for
    telecommunications are NOT exempt." WAC 296-155-52900(4)(t). We found
    above that substantial evidence supports the Board's finding that the Elliott 30105
    was a mobile crane. Thus, we do not reach the issue of whether Potelco was
    performing construction work, because it would not be exemptfrom WAC 296-155-
    52900 regardless.
    IV.   Violation Classification
    Alternatively, Potelco argues that this court should downgrade the violation
    from general to de minimis.
    There are several classifications of WISHA citations: willful, serious,
    general, and de minimis. See RCW 49.17.180(1)-(3); WAC 296-900-14010.
    Under RCW 49.17.180(3),
    Any employer who has received a citation for a violation . . . where
    such violation is specifically determined not to be of a serious nature
    as provided in subsection (6) of this section, may be assessed a civil
    penalty not to exceed seven thousand dollars for each such violation,
    unless such violation is determined to be de minimis.
    9
    No. 78433-1-1/10
    WAC 296-900-14010 provides that a general violation occurs where there
    are "[c]onditions that could cause injury or illness to an employee but would not
    result in serious physical harm." Under RCW 49.17.120(2), the Department may
    develop procedures under which it will issue "a notice in lieu of a citation with
    respect to de minimis violations which have no direct or immediate relationship to
    safety or health."
    Potelco asserts that "there were no injuries, accidents, or incidents involved
    in this inspection." But, actual injury is not required for the Department to cite an
    employer. See, e.q., Mowat Constr. Co. v. Dep't of Labor & Indus., 
    148 Wash. App. 920
    , 931, 
    201 P.3d 407
    (2009) ("Nor is the Department required to wait for
    someone to go deaf before citing the employer.").
    "The legislature intend[ed] to promote the safe condition and operation of
    cranes used in construction work by establishing certification requirements for
    construction cranes and qualifications for construction crane operators." RCW
    49.17.400; LAWS OF 2007, ch. 27, § 1.          Potelco's argument that the crane
    certification violation has no direct relationship to employee health and safety fails.
    We affirm.
    WE CONCUR:
    6 ge-4ee'; evci
    r d.a-iti g_C-1..
    10
    

Document Info

Docket Number: 78433-1

Filed Date: 6/10/2019

Precedential Status: Non-Precedential

Modified Date: 6/10/2019