Bayley Construction v. Department Of Labor & Industries ( 2019 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
BAYLEY CONSTRUCTION A ) No. 77600-2-1
GENERAL PARTNERSHIP, )
)
Appellant, )
)
v. ) PUBLISHED OPINION
)
WASHINGTON STATE DEPARTMENT)
OF LABOR & INDUSTRIES, )
)
Respondent. ) FILED: October 21, 2019
SCHINDLER, J. — A structural steelworker fell 42 feet to his death through a 5/8-
inch-thick plywood floor-hole cover. The Washington State Department of Labor and
Industries (Department) cited the general contractor Bayley Construction General
Partnership (Bayley)for a serious violation of the Washington Industrial Safety and
Health Act of 1973, chapter 49.17 RCW, and the floor hole cover regulation, WAC 296-
155-24615(3)(a)(ii).1 The serious violation citation states Bayley violated WAC 296-
155-24615(3)(a)(ii) by failing to ensure the 5/8-inch-thick plywood cover was capable of
supporting the "maximum potential load" of the worker. The Board of Industrial
Insurance Appeals (Board) affirmed the decision to issue the serious violation citation.
1 We note that in 2016, the Department amended chapter 296-155 WAC to replace the word
"shall" with "must" and to use roman numerals. Wash. St. Reg. 16-09-085(May 20, 2016). We quote the
language of the WAC provisions in effect in 2014 throughout the opinion.
No. 77600-2-1/2
Bayley appeals the superior court order affirming the Board. We conclude substantial
evidence supports finding the existence of a work site hazard, that Bayley knew or
should have known the work site created a substantial probability of serious physical
harm or death, and the Board did not err in concluding Bayley violated WAC 296-155-
24615(3)(a)(ii). We also conclude Bayley was not denied fair notice of the Department's
interpretation of WAC 296-155-24615(3)(a)(ii). We affirm the superior court order
affirming the Board decision.
Construction of Health and Sciences Building
Bayley Construction was the general contractor on the project to construct a new
three-story health and sciences building at Bellevue College. The heating, ventilation,
and air conditioning (HVAC)system for the building was designed for installation on the
roof of the building.
Bayley workers constructed a 32-inch-tall "stem wall" on the roof of the building
to enclose a 32-inch-wide by 62-inch-long rectangular hole for HVAC equipment.
Bayley general foreman Christopher Babbitt used 5/8-inch-thick plywood to construct a
48-inch-wide by 60-inch-long floor hole cover and spray-painted the word "HOLE" on
the cover.
Bayley hired Evergreen Erectors as the structural steel subcontractor to construct
a 16-foot-high "wind wall" to surround the HVAC system. Evergreen Erectors structural
steelworker journeymen Theodore (T.J.) Merry and Allen Wahl and third year apprentice
Bryan Johnson worked on construction of the wind wall.
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July 21, 2014 Accident
On July 21, 2014, the Evergreen structural steelworkers were welding angle iron
onto the wind wall. The workers used clamps to secure the angle iron. Wahl was
working on the outside of the wind wall. Merry was using a large stepladder to work on
the inside of the wind wall. The ladder was positioned in the southeast corner of the
wind wall next to the stem wall and the floor hole cover. Bayley construction workers
had attached 2-inch by 4-inch "whalers" on the outside of the stem wall in preparation
for pouring concrete in the stem wall that day.
Merry weighed 257 pounds and was wearing a 20-pound tool belt. While Merry
was standing on the ladder approximately five feet above the surface of the roof, Wahl
told Merry that he needed another clamp. Wahl watched Merry climb down the ladder,
step onto the top of the stem wall, and jump onto the plywood floor-hole cover.
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No. 77600-2-1/4
Johnson was working on the outside of the wind wall when he heard someone
"yell[] my name." Johnson "turned around" and saw Merry standing on top of the stem
wall, then jump and land with both feet on the plywood floor-hole cover. The plywood
broke under his weight. Wahl saw Merry "tr[y] to grab the edge" before he fell 42 feet to
his death.
Serious Violation of WAC 296-155-24615(3)(a)(ii)
Department safety compliance officers Javier Sarmiento and Christopher Troxell
conducted an investigation of the accident. Sarmiento and Troxell interviewed Babbitt
and a number of workers, including Wahl and Johnson. Sarmiento and Troxell took
photographs and measurements of the work site, including the wind wall, the
stepladder, the stem wall, and the hole opening.
The Department issued a citation and notice of assessment against Bayley for a
serious violation of WAC 296-155-24615(3)(a)(ii). The citation states, in pertinent part:
As the exposing employer (Bayley Construction employees) and creating
and controlling contractor (Evergreen Erector's employees), the employer
did not ensure that all floor openings had floor covers that were capable of
supporting the maximum potential load with a safety factor of four as
required by WAC 296-155-24615(3)(a)(ii).
Appeal to the Board
Bayley appealed the citation and notice of assessment for a serious violation of
WAC 296-155-24615(3)(a)(ii) to the Board of Industrial Insurance Appeals (Board).
Bayley alleged the Department could not establish a serious violation of WAC 296-155-
24615(3)(a)(ii). Bayley argued it complied with the fall restraint requirement for a floor
hole cover by using 5/8-inch-thick plywood that was capable of supporting the maximum
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No. 77600-2-1/5
"intended" load. Bayley asserted the decision of Merry to jump on the plywood cover
was not foreseeable.
The Board of Industrial Insurance Appeals judge (IAJ) held a hearing. The
Department presented the testimony of Bayley foreman Babbitt, Evergreen steelworkers
Wahl and Johnson, safety compliance officers Sarmiento and Troxell, and Department
Division of Occupational Safety and Health (DOSH)standards and technical services
expert David Conley.
Babbitt testified the first step is to "[f]ind the right material to cover [the] hole and
understand what the intended load will be on that hole." Babbitt said the "intended load"
"varies depending on the size of the opening" and "the location." Babbitt testified that to
determine the intended load, he "typically" used the weight of the heaviest worker, or
approximately 250 pounds, multiplied by four. Babbitt said the floor hole cover has to
be "able to withstand four times the intended load." But Babbitt testified, "[I]t's basically
up to the journeyman carpenter to determine whether that is sufficient or not because it
could vary depending on the size of the hole." Babbitt decided to use medium density
5/8-inch-thick plywood to construct the floor hole cover for the 32-inch by 62-inch hole in
the roof near the stem wall. Babbitt testified that" '[i]n the future we need to strengthen
our hole covers. Although it was not intended to be jumped on, it is clearly a
possibility.'"
Department safety compliance officer Sarmiento testified that when he inspected
the work site after the accident, Bayley's on-site superintendent told him that after the
accident, Bayley replaced the 5/8-inch floor hole covers with thicker 3/4-inch floor hole
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No. 77600-2-1/6
covers. Sarmiento testified that he was taught to use at least 3/4-inch-thick plywood for
a floor cover and never used 5/8-inch-thick plywood.2
Department safety compliance officer Troxell testified that using the weight of a
worker plus a tool belt multiplied by four is not sufficient to comply with the requirement
under WAC 296-155-24615(3)(a)(ii) to install a floor hole cover capable of supporting
the "maximum potential load." Troxell said calculating the weight of the heaviest worker
plus a tool belt times four is a "starting point." Troxell testified the contractor needs to
take into account work site conditions and dynamic forces created by a worker tripping
or falling onto the floor hole Cover.
Troxell testified Wahl and Johnson admitted that while working on the wind wall,
the Evergreen steelworkers frequently were "[g]oing in and out" of the stem wall
enclosure.
The Department designated DOSH standards and technical expert Conley to
testify about construction safety rules and WAC 296-155-24615(3)(a)(ii). Conley said
WAC 296-155-24615(3)(a)(ii) had been in effect since 1986 and before this accident,
the Department had not previously interpreted the WAC or the meaning of "maximum
potential load."
Conley testified WAC 296-155-24615(3)(a)(ii) is a "performance standard," not a
"specification standard." WAC 296-155-24615(3)(a)(ii) does not specify "what material
has to be used. Only that it meets certain strength requirements."
A performance standard gives general requirements for an employer to
follow, and a.. . specification standard is more specific to, say, a certain
requirement for, say, tensile strength of a vertical lifeline must be 5,000
2 DOSH expert Conley also testified that he was taught to use "no less than 3/4 inch plywood."
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No. 77600-2-1/7
pounds, where we actually give specific information about what we want
the requirement to be.
Conley testified the phrase "maximum potential load" as used in WAC 296-155-
24615(3)(a)(ii) means "what is possible or what is the greatest load that could be
imposed on that cover." Conley said that in determining the "maximum potential load"
for a floor hole cover, the employer must consider the potential that a worker will slip,
trip, or fall on the cover because a "dynamic load" creates more force than a "static
load." Conley testified that in calculating the "maximum potential load," the employer
must therefore "tak[e] into account the greatest amount of force that could be placed on
that cover" at the work site. "[I]f you multiply that by a factor of four, it should really be
strong enough to withstand just about anything."
Engineering and safety expert Kurt Stranne, third-party safety director Steven
Heist, and Bayley safety director Joseph Chandler testified on behalf of Bayley.
Stranne testified that when teaching compliance with the WAC 296-155-
24615(3)(a)(ii) floor hole cover standard, he uses the phrase "maximum intended load"
instead of"maximum potential load" because the phrase "intended load" is used to
describe the fall restraint specifications for a personal fall restraint system with
anchorage points. See WAC 296-155-24615(1)(e)(a "personal fall restraint system"
"shall be rigged to allow the movement of employees only as far as the unprotected
sides and edges of the walking/working surface, and shall consist of. . . . [a]nchorage
points used for" a personal fall restraint system "capable of supporting four times the
intended load").
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No. 77600-2-1/8
Stranne testified that dynamic load should be taken into consideration only for fall
arrest regulations3 and not fall restraint regulations. Stranne described a static load as
a worker standing on a floor hole cover. However, Stranne conceded that walking as
well as tripping or falling onto a floor hole cover is a dynamic load.4
Stranne reviewed a September 10, 2014 report that Pacific Engineering
Technologies structural engineer Mark Schaefer prepared for the Department. The
report addressed the strength of 5/8-inch-thick plywood. Schaefer concluded a 5/8-
inch-thick "MD0[5] style of plywood" could support 1,246 pounds.
Stranne testified that he used "two different ways" to calculate the strength of the
plywood with the weight of a worker at "310 pounds" and "the weight at 257 plus a 25-
pound tool belt." Stranne testified that "a 310-pound man falling[J . . . assuming he's
falling instead of jumping[,]from the stem wall to the cover" would create a force
"greater than the value of the plywood." Stranne concluded the floor hole cover would
not have been able to sustain a fall from the 32-inch stem wall.
Using deceleration distance, 1 came out with 1,690 pounds. And using the
time as the deceleration distance or the deceleration factor, 1 came out
with 1,265 pounds, both of them greater than the value of the plywood.
Third-party safety administrator Heist testified that when training safety
compliance officers about the WAC "cover specification requirements," he uses the
3 See WAC 296-155-24613.
4Stranne testified:
Q. And if an employee were to trip and fall onto a floor covering, that fall would be
imposing a dynamic load, correct?
A. Yes. That's where the factor of safety of 4 would begin.
Q. And if an employee fell off a 32-inch stem wall onto a floor covering, that would
impose a dynamic load, right?
A. Yes.
5 Medium density overlay.
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No. 77600-2-1/9
phrase "maximum intended load" because the word "intended" is used in the subsection
of WAC 296-155-24615(3)(a) that governs a manhole cover in a roadway. See WAC
296-155-24615(3)(a)(i)(manhole covers must be "designed to carry a truck rear axle
load of at least two times the maximum intended load"). Heist testified that he
calculates the "maximum intended load" for workers at a work site by using the weight
of the heaviest worker with a tool belt times four.
Heist testified the phrase "maximum potential load" does not apply to "a worker
falling from a ladder." However, Heist admitted a floor hole cover should be "sufficient
for it to be able to take the static or potentially any other loads that might be on it
working in that area."
Q So you're — so if I'm understanding what you're saying, you're
saying that the rule would cover a dynamic load if someone trips
and falls. But if, say, they're 35 inches above — 36 inches,
whatever, on a ladder and fall onto a floor covering, that the rule
does not cover that? Is that what you're saying?
A If I were to be working from an elevation, the same level, then the
hole cover should be able to sustain the forces that are being put
on it. And a qualified person is the one that would make that
determination as to, would it be sufficient for it to be able to take the
static or potentially any other loads that might be on it working in
that area.
Bayley safety director Chandler testified that he had no knowledge that the
subcontractors were "going inside [the] stem wall." Chandler said that on July 21, 2014,
workers were scheduled to pour concrete into the stem wall. Chandler testified the
Evergreen workers attended the safety meeting that morning. At the meeting, Chandler
instructed that all the workers stay out of the stem wall area "because we have a pour
that day."
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No. 77600-2-1/10
In the posthearing brief, Bayley argued the Department did not establish Bayley
had actual or constructive knowledge of the hazard because it was not foreseeable that
a worker wouldjump off the stem wall onto the floor hole cover. Bayley asserted the
Department erred in interpreting the meaning of the phrase "maximum potential load" as
used in WAC 296-155-24615(3)(a)(ii). Bayley argued the term "potential" is
synonymous with the term "intended" and the maximum "intended load" is calculated by
taking the weight of the heaviest worker plus tools and multiplying by four. Bayley also
argued it did not have fair notice of the Department's interpretation of WAC 296-155-
24615(3)(a)(ii).
The IAJ issued a proposed decision and order affirming the citation against
Bayley for a serious violation of WAC 296-155-24615(3)(a)(ii). The IAJ concluded WAC
296-155-24615(3)(a)(ii) applied, Bayley violated the regulation, and Bayley had
constructive knowledge of the hazardous condition. The proposed decision and order
stated, "Because Mr. Merry and others clearly were working in areas near the floor
opening, Bayley should have considered the potential load created by a worker
stumbling, falling, or jumping onto the cover."
The IAJ rejected the argument that Bayley did not have fair notice of the
Department's interpretation of WAC 296-155-24615(3)(a)(ii).
Bayley asserts that the Department's interpretation of the regulation
should be rejected because Bayley did not have fair notice of the
interpretation. But there is no evidence that the Department previously
interpreted the regulation in a way that was inconsistent with an
interpretation upon which Bayley relied.
Bayley filed a petition for review of the proposed decision and order to the Board.
Bayley argued the Department did not prove a prima facie case that Bayley committed a
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No. 77600-2-1/11
serious violation of WAC 296-155-24615(3)(a)(ii), expert testimony established the
plywood floor-hole cover was strong enough for the "intended use," and it was
"unforeseeable that the employee would have access to the floor hole and its cover."
Bayley argued substantial evidence did not support finding Bayley had constructive
knowledge of the violation.
The Board issued a 14-page "Decision and Order" and entered findings of fact
and conclusions of law. The Board affirmed the citation and notice against Bayley for a
serious violation of WAC 296-155-24615(3)(a)(ii) but modified the amount of the
penalty.6
Bayley appealed the Decision and Order to superior court. The superior court
affirmed.
Appeal of Board Decision and Order
Bayley seeks reversal of the Board Decision and Order. Bayley contends the
Department did not meet its burden of proving Bayley committed a serious violation of
WAC 296-155-24615(3)(a)(ii). Bayley argues the Board erred in interpreting the
meaning of "maximum potential load" and the 5/8-inch-thick plywood floor-hole cover
met the requirements of WAC 296-155-24615(3)(a)(ii). Bayley also claims the
Department's interpretation of WAC 296-155-24615(3)(a)(ii) violated its right to fair
notice and due process and challenges evidentiary rulings.
WISHA and Standard of Review of Board Decision
The Washington Industrial Safety and Health Act of 1973(WISHA), chapter
49.17 RCW,governs our review of a Board decision. RCW 49.17.150(1).
6 One member of the Board dissented, arguing "maximum potential load" applies only to a static
load and the Department's interpretation is an "unreachable" strict liability standard.
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No. 77600-2-1/12
The Washington State Constitution mandates protection of workers at a
construction work site. Art. II, § 35. Article II, section 35 provides, "The legislature shall
pass necessary laws for the protection of persons working in mines, factories and other
employments dangerous to life or deleterious to health; and fix pains and penalties for
the enforcement of the same."
The legislature enacted WISHA in 1973. LAWS OF 1973, ch. 80. The purpose of
WISHA is "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.
[T]he legislature in the exercise of its police power, and in keeping with the
mandates of Article II, section 35 of the state Constitution, declares its
purpose by the provisions of this chapter to create, maintain, continue,
and enhance the industrial safety and health program of the state, which
program shall equal or exceed the standards prescribed by the
Occupational Safety and Health Act of 1970 (Public Law 91-596, 84 Stat.
1590).
RCW 49.17.010. We must construe WISHA statutes and regulations liberally to achieve
the purpose of providing safe working conditions for workers in Washington. Frank
Coluccio Constr. Co. v. Dep't of Labor & Indus., 181 Wash. App. 25, 36, 329 P.3d 91
(2014); see also RCW 49.17.050, .120, .180.
The legislature delegates broad authority to the Department to adopt regulations
to meet the general safety principles set forth in WISHA. RCW 49.17.040. WISHA
requires an employer to "furnish to each of his or her employees a place of employment
free from recognized hazards." RCW 49.17.060(1). WISHA imposes a specific duty to
"comply with the rules, regulations, and orders promulgated" by the Department. RCW
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No. 77600-2-1/13
49.17.060(2); J.E. Dunn Nw., Inc. v. Dep't of Labor & Indus., 139 Wash. App. 35, 48, 156
P.3d 250 (2007).
In an appeal of the superior court order affirming the decision of the Board, we
review the Board's decision directly, based on the record before the Board. J.E. Dunn
Nw., 139 Wash. App. at 42; Potelco, Inc. v. Dep't of Labor & Indus., 194 Wash. App. 428,
434, 377 P.3d 251 (2016)(citing Mowat Constr. Co. v. Dep't of Labor & Indus., 148 Wn.
App. 920, 925, 201 P.3d 407 (2009)). In a WISHA appeal, the Board's findings of fact
are conclusive if supported by substantial evidence. RCW 49.17.150(1); Mowat, 148
Wash. App. at 925. Substantial evidence is evidence sufficient to persuade a fair-minded
person of the truth of the matter asserted. Potelco, 194 Wash. App. at 434 (citing Mowat,
148 Wash. App. at 925). We view the evidence and reasonable inferences in the light
most favorable to the prevailing party—here, the Department. Coluccio Constr., 181
Wash. App. at 35. Unchallenged findings are verities on appeal. Coluccio Constr., 181
Wash. App. at 35. If substantial evidence supports the Board's findings, we review
whether the findings support the Board's conclusions of law. Erection Co. v. Dep't of
Labor & Indus., 160 Wash. App. 194, 202, 248 P.3d 1085 (2011).
Serious Violation of WAC 296-155-24615(3)(a)(ii)
The Department bears the initial burden of proving a WISHA violation. WAC
263-12-115(2)(b); SuperValu, Inc. v. Dep't of Labor & Indus., 158 Wash. 2d 422, 433, 144
P.3d 1160 (2006). To establish a serious violation of a WISHA safety regulation, the
Department 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
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No. 77600-2-1/14
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. Coluccio
Constr., 181 Wash. App. at 36-37; Wash. Cedar & Supply Co. v. Dep't of Labor & Indus.,
119 Wash. App. 906, 914, 83 P.3d 1012(2004).
To establish knowledge of a serious WISHA violation, the Department must show
"'the employer knew or, through the exercise of reasonable diligence, could have
known of the violative condition.'" Potelco, Inc. v. Dep't of Labor & Indus., 191 Wn.
App. 9, 34, 361 P.3d 767(2015)(quoting Coluccio Constr., 181 Wash. App. at 37).
"Reasonable diligence" includes the obligation of an employer to inspect the work site,
anticipate hazards that employees may be exposed to, and take measures to prevent
the occurrence of a violative condition. Erection Co., 160 Wash. App. at 206-07. The
employer has constructive knowledge of a hazardous condition if it is readily observable
or in a conspicuous work site location. BD Roofing, Inc. v. Dep't of Labor & Indus., 139
Wash. App. 98, 109-10, 161 P.3d 387 (2007).
Bayley contends insufficient evidence supports the Board finding it committed a
serious violation of WAC 296-155-24615(3)(a)(ii). The findings of fact describe the work
site hazard on July 21, 2014 when Merry fell to his death through the plywood cover
over the hole in the roof:
3. On July 21, 2014, Bayley Construction was the general contractor
for a project erecting a building at Bellevue College, with Evergreen
Erectors being the structural steel subcontractor. The Evergreen
Erectors crew at this project included Theodore (T.J.) Merry. The
structural steel crew were on the roof of the building constructing a
metal cage or wind wall that was at least 16 feet tall. The crew was
welding angle iron, using clamps to help support the work. The
crew had access to the interior of the cage by using a stepladder
that straddled the cage. Construction of the cage required workers
to be inside it periodically.
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No. 77600-2-1/15
5. Inside the cage on the roof near the stepladder was a 32-inch high
"stem" wall consisting of wood forms and 2x4s that had been set up
in preparation of a concrete pour. One corner of the stem wall was
located adjacent to the stepladder used by workers to enter and
leave the cage. Inside the stem wall was a rectangular hole
through the roof that was 62 inches long and 32 inches wide, in
which HVAC equipment and duct work were to be installed. A fall
through this hole would be approximately 42 feet onto concrete.
The hole in the roof was covered by a sheet of 5/8-inch thick
plywood that was 60 inches long and 48 inches wide. The plywood
was placed on top of the hole so that on each long end a 1-inch
gap was present through which electrical cords and other items
could be positioned. The plywood sheet was affixed to wood
surrounding the hole by two large nails driven into the wood within
a few inches of each other. The word "HOLE" in large letters was
spray painted onto the top of the plywood sheet using red spray
paint.
6. On July 21, 2014, T.J. Merry was working on the ladder inside the
wind wall. He needed a clamp so he stepped from the ladder onto
the stem wall and from there jumped onto the plywood sheet acting
as the hole cover, which broke on impact. Mr. Merry fell through
the hole and died.
11. A substantial probability existed that a worker who was exposed to
the hazard of falling through the hole in the roof, notwithstanding
the placement of the plywood cover above it, would incur a serious
bodily injury, including the possibility of fractures, paralysis, or
death.
12. The severity of the hazard in Item No. 1-1 of Citation and Notice
No. 317401172 is rated as a 6 on a scale of 1 to 6 because the
most serious injury that reasonably could be expected to occur was
death.
The Board also rejected the argument that it was unforeseeable that a worker
would "step or jump over" the stem wall onto the plywood floor-hole cover to "pick up
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No. 77600-2-1/16
parts or angle iron, or for other job-related" tasks:
[W]hen access to the inside of the cage is by a stepladder placed in close
proximity to the stem wall and the corridor between the cage and the stem
wall is narrow and pinched to less than a foot at one point by a 2x4
[whaler] extending into that space, it is reasonably foreseeable that
workers would step or jump over the 32-inch tall stem wall when traveling
across the inside of the cage to weld in a different location, pick up parts
or angle iron, or for other job-related duties.
Substantial evidence supports the Board finding workers were exposed to falling
42 feet through the plywood floor-hole cover and a substantial probability that serious
physical harm or death could result, and Bayley knew or should have known of the work
site hazard.
Department safety compliance officer Sarmiento investigated the accident and
took measurements and photographs of the work site. Bayley safety director Chandler
testified the photographs accurately depict the work site.
The photographs showed the path at the bottom of the ladder between the wind
wall and the stem wall was very "narrow" and measured only 10 1/2 inches wide.
Q How many inches did [Merry] have to walk through?
A Ten-and-a-half, I took a measurement.
Q So if hypothetically Mr. Merry had gotten all the way off the ladder
and had walked around the stem wall, would he have to have
walked past where your tape measurement was?
A Yes. He [would] have to walk through this area.
Q And it's how many inches?
A Ten-and-a-half.
A That was obvious to me that this person they have an area free to
walk around it. The person, he was completely barricaded by this
piece of lumber which is called a whaler. A whaler helps to
reinforce the concrete forms. The concrete forms, they were ready
to pour that day, so that was obvious to me that that form was
complete.
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No. 77600-2-1/17
Sarmiento said it was "[h]ard for me to work in-between the whaler and the wind — wind
screen wall being so — it reduced the space. . . . [I]f that was hard for me to walk by, a
person with tools, yes, it's going to be harder yet."
Troxell also testified that the space to get around the stem wall was narrow and
difficult to walk through. Troxell testified that if Merry did not "go over the stem wall," he
would have had to "turn sideways and shuffle through" the narrow path because "the
other direction" was physically impossible to walk through:
Q. And would it have been possible for him to go the other direction
around the stem wall?
A. . . . . Right there at the base of the ladder, the distance there looks
to be roughly — I was looking at all these photos again yesterday,
and it looks like it's about maybe just slightly more than the
thickness of two two-by-fours because there was a couple of two-
by-fours jammed in there, and so I can't imagine it more than about
four inches in width.
Q. If he had gone the other direction not —
A. Yes. If he gone along the tube framework of the wind wall for the
wind wall itself.
Q. It would be how many inches?
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No. 77600-2-1/18
A. About four. I'm guessing three to four inches.
Q. So it wouldn't be physically possible [to do that?]
A. No.
Troxell testified that Wahl and Johnson told him that they frequently "straddl[ed]
over the stem wall form" to enter and exit the stem wall area while working on the wind
wall. The Board found the testimony of Johnson and Wahl credible:
[T]he very act of erecting the cage and the stem wall inside of it required
that some workers be working immediately adjacent to the hole. It is clear
from the photographic exhibits that on July 21, 2014, the crew could not
have completed welding the cage without being inside it on occasion.
Thus, the admissions of both Mr. Wahl and Mr. Johnson to the
Department's safety officers that they had repeatedly worked inside the
stem wall are believable.
Bayley contends it did not know that work on the wind wall exposed the workers
to the hazard of falling through the floor hole cover. Bayley also points to the testimony
that safety director Chandler specifically instructed the Evergreen Erectors workers to
stay out of the stem wall area on July 21, 2014. The Board rejected the argument that
Bayley did not know about the work site hazard—"Bayley Construction knew or should
have known that workers would have access to the hole in the roof inside the cage or
wind wall and that a fall through that hole would result in serious bodily harm or death."
Bayley insists that the iron workers had no work-related reason
to be inside the stem wall. Mr. Wahl and Mr. Johnson testified that they
were instructed not to venture inside the stem wall. Their testimony that
they followed this instruction was contradicted by statements they gave to
the Department's safety inspectors, to whom they admitted having worked
inside the stem wall and also straddling it while working.
The uncontroverted testimony of DOSH construction industry standards expert Conley
also established "falls from ladders" are "very common" and "one of the top two"
sources of injuries at construction sites.
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No. 77600-2-1/19
Substantial evidence supports finding a work site hazard and that Bayley knew or
should have known the Evergreen Erectors workers were exposed to the hazard of
falling through the plywood floor-hole cover. Evergreen workers were obviously working
on the construction of the wind wall and using a stepladder positioned next to the stem
wall and the large floor-hole cover.
Interpretation of WAC 296-155-24615(3)(a)(ii)
Bayley contends the Board erred in interpreting "maximum potential load" in
concluding Bayley violated WAC 296-155-24615(3)(a)(ii). The findings of fact state, in
pertinent part:
7. On July 21, 2014, when he jumped onto the hole cover, Mr. Merry
weighed 257 pounds and wore a tool belt weighing approximately
20 pounds.
8. The 5/8th-inch thick piece of plywood used by Bayley as the hole
cover could support a load of 1,246 pounds. It could support the
static weight of Mr. Merry and his tool belt, even when multiplying it
by 4 as the required safety factor.
9. The dynamic load or force placed on the plywood-hole cover by Mr.
Merry and his tool belt at the moment of impact after the jump on
top of it exceeded 1,246 pounds. This resulted in the breaking of
the plywood-hole cover and Mr. Merry's fall onto concrete 42 feet
below.
10. The plywood-floor-opening cover was not sufficient to support the
maximum potential load, which included the force of an employee
jumping or falling from an elevation above the floor opening, with a
safety factor of four.
The Board rejected Bayley's argument that "maximum potential load" means
"maximum intended load." The conclusions of law state, in pertinent part:
2. The phrase "maximum potential loads" in WAC 296-155-
24615(3)(a) encompasses all potential loads, not just intended
loads.
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No. 77600-2-1/20
3. The phrase "maximum potential loads" in WAC 296-155-4615(3)(a)
includes dynamic loads or force as well as static loads or force.
We review the Board's interpretation of regulations de novo. Erection Co., 160
Wash. App. at 201. Our objective is to ascertain and give effect to the intent of the
regulation. Dep't of Ecology v. Campbell & Gwinn, LLC, 146 Wash. 2d 1, 9,43 P.3d 4
(2002).
Our interpretation begins with the plain meaning of the regulation. Lake v.
Woodcreek Homeowners Ass'n, 169 Wash. 2d 516, 526, 243 P.3d 1283 (2010). We look
first to the text of the regulation to determine its meaning. Griffin v. Thurston County Bd.
of Health, 165 Wash. 2d 50, 55, 196 P.3d 141 (2008). "If an administrative rule or
regulation is clear on its face, its meaning is to be derived from the plain language of the
provision." Cannon v. Dep't of Licensing, 147 Wash. 2d 41, 55, 50 P.3d 627(2002).
We also employ traditional rules of grammar in discerning the plain language of a
regulation. In re Forfeiture of One 1970 Chevrolet Chevelle, 166 Wash. 2d 834, 838-39,
215 P.3d 166 (2009). We construe all of the language to give effect to the regulation.
Lake, 169 Wash. 2d at 526. A construction that would render a portion of the regulation
meaningless or superfluous should be avoided. Ford Motor Co. v. City of Seattle, 160
Wash. 2d 32, 41, 156 P.3d 185 (2007). "[W]e avoid interpretations 'that yield unlikely,
absurd or strained consequences.'" Broughton Lumber Co. v. BNSF Ry., 174 Wash. 2d
619, 635, 278 P.3d 173(2012)(quoting Kilian v. Atkinson, 147 Wash. 2d 16, 21, 50 P.3d
638 (2002)). Where the language of a regulation is clear, intent is derived from the
language of the regulation alone. City of Spokane v. Rothwell, 166 Wash. 2d 872, 876,
215 P.3d 162 (2009). If the plain language is subject to only one interpretation, our
inquiry is at an end. Lake, 169 Wash. 2d at 526.
20
No. 77600-2-1/21
WAC 296-155-24603 defines a "fall restraint system" as "[a] system in which all
necessary components function together to restrain/prevent an employee from falling to
a lower level." WAC 296-155-24609(1) requires employers to provide and implement
an "appropriate fall protection system" when employees are working at "four feet or
more" off the ground. WAC 296-155-24609(4)(a)(ii) states, "Floor openings shall be
guarded by one of the following fall restraint systems. . . . A cover, as specified in WAC
296-155-24615(3)." WAC 296-155-24615(3) states, "Fall restraint protection shall
conform to the following provisions":
Cover specifications.
(a) Floor opening or floor hole covers shall be of any material that
meets the following strength requirements:
(i) Conduits, trenches, and manhole covers and their supports,
when located in roadways, and vehicular aisles shall be designed to carry
a truck rear axle load of at least two times the maximum intended load;
(ii) All floor opening and floor hole covers shall be capable of
supporting the maximum potential load but never less than two hundred
pounds (with a safety factor of four).
(A) All covers shall be secured when installed so as to prevent
accidental displacement by the wind, equipment, or employees.
(B) All covers shall be color coded or they shall be marked with the
word "hole" or "cover" to provide warning of the hazard.[7]
The WAC does not define the phrase "maximum potential load." Bayley asserts
"maximum potential load" means "maximum intended load." Bayley also argues the
"maximum potential load" regulation contemplates the calculation of only a static load.
We disagree.
We give undefined terms their ordinary meaning as defined in the dictionary.
Habitat Watch v. Skagit County, 155 Wash. 2d 397, 423, 120 P.3d 56 (2005). The
dictionary definition of"maximum" is "the greatest quantity or value attainable in a given
case." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1396 (2002).
7 Emphasis added.
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No. 77600-2-1/22
Contrary to Bayley's assertion, the word "potential" does not have the same
meaning as "intended." "Potential" means "existing in possibility: having the capacity or
a strong possibility for development into a state of actuality." WEBSTER'S THIRD NEW
INTERNATIONAL DICTIONARY, at 1775. By contrast, "intended" is defined as "intentional,"
"to design for. .. a specified purpose," and "to have in mind as a design or purpose:
plan." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY, at 1175.
The dictionary definition of "load" does not support the argument that the
regulation contemplates only a static load. "Load" means "a mass or weight supported
by something" and "the forces to which a structure is subjected because of weights
carried on the supports." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY, at 1325.
Where an administrative agency uses two different terms in the same regulation,
we presume the agency intends the terms to have different meanings. City of Kent v.
Beigh, 145 Wash. 2d 33, 45, 32 P.3d 258 (2001). Here, the Department deliberately used
the term "potential" instead of the word "intended" when enacting WAC 296-155-
24615(3)(a)(ii). WAC 296-155-24615(3)(a)(i) governs the requirements for conduits,
trenches, and manhole covers. WAC 296-155-24615(3)(a)(i) states, "Conduits,
trenches, and manhole covers and their supports, when located in roadways, and
vehicular aisles shall be designed to carry a truck rear axle load of at least two times the
maximum intended load."8 But by contrast, WAC 296-155-24615(3)(a)(ii) states, "All
floor opening and floor hole covers shall be capable of supporting the maximum
potential load but never less than two hundred pounds (with a safety factor of four)."
The undisputed record establishes WAC 296-155-24615(3)(a)(ii) is a
performance standard, not a specification standard. The language "maximum potential
8 Emphasis added.
22
No. 77600-2-1/23
load" means the employer must take into account dynamic forces and the potential or
possible hazard of falling onto the floor hole cover at the work site. The language that a
floor hole cover shall not only be capable of "supporting the maximum potential load,"
but "never less than two hundred pounds (with a safety factor of four)," is the minimum
weight the cover shall support. WAC 296-155-24615(3)(a)(ii). We conclude the phrase
"maximum potential load" includes possible dynamic loads and not only an intended or
static load.
Bayley contends all the witnesses at the hearing agreed that WAC 296-155-
24615(3)(a)(ii) only requires the employer to multiply the weight of the heaviest worker
times a safety factor of four. Neither the intent of WISHA, the plain language of WAC
296-155-24615(3)(a)(ii), nor the record support this argument. The plain language of
the regulation identifies a minimum strength requirement. As Troxell testified, that
calculation is only a starting point and does not take into account the work site
conditions. DOSH expert Conley testified that "in calculating the maximum potential
load, you would be taking into account the greatest amount of force that could be placed
on that cover" at the work site. When Bayley's attorney specifically asked Conley if he
agreed that the proper compliance method is to only take the heaviest worker and
multiply by four, Conley said, "I do not." Bayley's expert Heist testified that a qualified
person would need to determine if the floor hole cover is "sufficient for it to be able to
take the static or potentially any other loads that might be on it working in that area."
We also reject Bayley's argument that "fall restraint" regulations govern only a
static load and "fall arrest" regulations govern only a dynamic load. WAC 296-155-
24603 defines a "fall arrest system" as "a fall protection system that will arrest a fall from
23
No. 77600-2-1/24
elevation. Fall arrest systems include personal fall arrest systems that are worn by the
user, catch platforms, and safety nets." "Fall arrest" means "[s]topped after the fall with
a 6 [foot] maximum free fall distance." WAC 296-155-24605.
The definition of "fall restraint system" is not limited to a static load. Under WAC
296-155-24605, "fall restraint" means "Nestrained from falling." See also WAC 296-
155-24603. The purpose of a floor opening cover is to restrain or prevent an employee
from falling to a lower level. WAC 296-155-24603.
We conclude the Board did not err in concluding WAC 296-155-24615(3)(a)(ii)
"encompasses all potential loads, not just intended loads," and "includes dynamic
loads."9 Further, even if ambiguous, we accord substantial weight to an agency's
interpretation within its area of expertise and uphold that interpretation if it reflects a
plausible construction of the regulation and is not contrary to legislative intent. Roller v.
Dep't of Labor & Indus., 128 Wash. App. 922, 926-27, 117 P.3d 385 (2005).
Fair Notice and Due Process
Bayley argues the Department's interpretation of WAC 296-155-24615(3)(a)(ii)
and "maximum potential load" violated Bayley's right to "fair notice" and due process.
The record does not support the premise of Bayley's argument that the Department
"changed" its interpretation of WAC 296-155-24615(3)(a)(ii).10
9 The Associated General Contractors of Washington (AGC)filed an amicus curiae brief. AGC
contends this interpretation imposes an impossible burden on an employer. But where, as here,"a
specific standard exists, the standard is presumed feasible and the burden is on the employer to prove
that it is not." SuperValu, 158 Wn.2d at 434(emphasis in original). Below, Bayley did not assert
unfeasibility as an affirmative defense.
10 AGC also argues the Board erred by using a "new and different" interpretation of "maximum
potential load." AGC also cites a sentence in the Board Decision and Order that states, "Bayley insists
that the phrase actually means'maximum intended load,' an interpretation that all of the experts
acknowledge had been used by the Department in the past." (Emphasis in original.) But as noted, the
uncontroverted record establishes the Department had not previously interpreted "maximum potential
load."
24
No. 77600-2-1/25
Conley and Bayley's expert Heist, a former technical specialist for DOSH,
testified they were unaware of any previous investigation where an improper floor
covering resulted in injury or death. Conley testified:
A I — we have what we call the wind system, which is the WISHA
information network that houses all of our data on consultations and
compliance activity. So I searched through those related to this
code, and — to look to see if I could come up with any other
inspections that referenced this type of incident or. . .
• What did you find?
A I did not find anything related to that.[11]
Heist said that while he was working for the Department, "I know that there were times
where workers had fallen through a piece of material, but not — it wasn't a floor hole
covering — floor hole opening."
The uncontroverted testimony of Conley established the Department had not
previously interpreted the phrase "maximum potential load" in WAC 296-155-
24615(3)(a)(ii).
• Before this case, has the Department ever had any reason to
express its interpretation of the phrase "maximum potential load" in
this floor covering rule?
Not to my knowledge.
And before this case, is the Department aware of anyone ever
raising any questions as to the meaning of the phrase,"maximum
potential load," in the floor covering rule?
A Not to my knowledge.
• And are you aware of any previous inspections where the
Department had to determine the meaning of the phrase "maximum
potential load"?
A I am not aware of any.
• Have you determined when the phrase "maximum potential load"
was first included in the floor covering rule?
A That question was posed to our standards group, and the response
that we got from the folks in our standards department said that that
language came into effect in January of 1986.
11 Ellipsis in original.
25
No. 77600-2-1/26
The case Bayley cites, Perez v. Loren Cook Co., 803 F.3d 935 (8th Cir. 2015), is
distinguishable. In Perez, the Eight Circuit concluded the United States Secretary of
Labor changed a regulation from an old interpretation to a new one. Perez, 803 F.3d at
943.
Excluded Evidence
Bayley contends the Board erred in not considering testimony that "maximum
potential load" is the same as "maximum intended load."
We review evidentiary rulings for abuse of discretion. State v. Myers, 133 Wash. 2d
26, 34, 941 P.2d 1102 (1997). "The trial court's decision 'will not be disturbed on review
except on a clear showing of abuse of discretion, that is, discretion manifestly
unreasonable, or exercised on untenable grounds, or for untenable reasons.'" Wilson
v. Horsley, 137 Wash. 2d 500, 505, 974 P.2d 316 (1999)(quoting State ex rel. Carroll v.
Junker, 79 Wash. 2d 12, 26, 482 P.2d 775 (1971)).
The Board ruled:
[W]e affirm the denial of additional witness testimony requested by the
employer and the publication of deposition excerpts as Exhibit No. 58
pursuant to ER 402 &(ER]403. As for the employer's complaint about not
being allowed to present the testimony of a person designated as a CR
30(b)(6) witness designated to speak on behalf of the Department, we
note that David Conley was designated by the Department to testify on its
behalf and did so.
The record reflects the testimony of additional witnesses about the interpretation
of WAC 296-155-24615(3)(a)(ii) was cumulative. The record also shows that the
Department did not designate Scott Reiquam as the CR 30(b)(6) Department witness
on the interpretation of WAC 296-155-24615(3)(a)(ii). The Board did not abuse its
26
No. 77600-2-1/27
discretion in affirming the decision of the hearing examiner denying the request to
consider the testimony of additional witnesses and Reiquam.
We conclude the Department established that Bayley committed a serious
violation of WAC 296-155-24615(3)(a)(ii). We affirm the superior court order affirming
the Board.
WE CONCUR:
27