      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                                                                            C-D
                                                                                   C=1   (/)
                                           )                                       Ct7      .."DJ
 IMCO GENERAL CONSTRUCTION,                )         No. 76301-6-1                 C-
 INC.,                                     )                                                CD

                                           )         DIVISION ONE                  N.)
                                                                                                -
                                                                                            7:11-
                     Appellant,            )                                             Cl)r-n
                                                                                                    m
                                           )
                                                                                           I-
             v.                            )                                      1.0    C)V)
                                                                                         -4 CD
                                           )                                             CD-

 DEPARTMENT OF LABOR AND                   )         UNPUBLISHED                           07.
 INDUSTRIES OF THE STATE OF                )
 WASHINGTON,                               )         FILED: January 22, 2018
                                           )
                     Respondent.           )
                                           )


      Cox, J. — Washington Industrial Safety and Health Act(WISHA)safety

standards require that employers protect their employees working at the edge of

pits deeper than 10 feet by use of adequate protection systems. In citing an

employer for a serious violation of these standards, the Department of Labor and

Industries has the burden to show that the employer's employees were exposed

to or had access to the unprotected pit's edge. Because the record in this case

shows that the Department met that burden, we affirm.

      IMCO contracted to build a water treatment plant in Lynden, Washington.

The project required IMCO to excavate a 25 foot deep construction pit. The pit

was ringed with a rope railing but no guardrail compliant with Department

regulations. It is undisputed that IMCO carpenter Tom Reardon constructed two
No. 76301-6-1/2


staircases for ingress and egress to the pit. And while he was doing so, other

employees installed a pump hose around the pit's edge to prevent water

accumulation.

       In response to an anonymous complaint, the Department investigator

Keith Koskela visited this jobsite to conduct a WISHA compliance inspection. He

interviewed employees, tested the strength of the rope at the pit's edge, and took

photographs of the site. As a result of Koskela's visit, the Department cited

IMCO for inadequately protecting its employees from the hazard of falling into the

pit.

       IMCO appealed to the Board of Industrial Insurance Appeals (BHA),

arguing that the Department failed to prove that IMCO had exposed its

employees to the hazard of falling into the pit. A BHA administrative hearing

judge affirmed the citation after reviewing evidence and hearing witness

testimony. And the BHA adopted the judge's proposed decision and order after .

denying IMCO's petition for administrative review. IMCO appealed to superior

court, which affirmed the BHA's decision.

       IMCO appeals.

                       EXPOSURE TO FALLING HAZARD

       IMCO argues that insufficient evidence supports the Board's finding that

IMCO exposed its employees to the hazard of falling into a 25 foot deep pit on its

work site. We hold that substantial evidence supports the challenged findings.




                                        2
No. 76301-6-1/3


       WISHA governs our review.' That statute requires that we review the

Board's decision, based on the record before the agency.2 The Board's findings

of fact are conclusive if supported by substantial evidence when viewed in light of

the whole record.3 Evidence is substantial if sufficient to "persuade a reasonable,

person of the truth of the premise."4 We review whether the BHA's findings

support its conclusions.5

      "We view the evidence and reasonable inferences in the light most

favorable to the prevailing party — here, the Department."6 Circumstantial

evidence can be as reliable as direct evidence, and a fact finder may make

reasonable inferences on the basis of circumstantial evidence.7 The specific

element at issue in this case, "[e]xposure to a hazard may be established by

circumstantial evidence."5




          RCW 49.17.150.

      2 J.E. Dunn Nw., Inc. v. Dep't of Labor & Indus., 139 Wn. App. 35, 42, 156,
P.3d 250 (2007).

      3 Mid Mountain Contractors, Inc. v. Dep't of Labor & Indus., 136 Wn. App.
1,4, 146 P.3d 1212 (2006).

          Id.

      5   Id.

      6 Frank Coluccio Constr. Co. v. Dep't of Labor & Indus., 181 Wn. App. 25,
35, 329 P.3d 91 (2014).

      7 Faust v. Albertson, 167 Wn.2d   531, 538, 222 P.3d 1208 (2009).
      8 Sec'y of Labor v. Marine Power and Equip. Co.,6 O.S.H. Cas.(BNA)
1427, at 5(1978).


                                        3
No. 76301-6-1/4


       We interpret WISHA statutes and regulations "liberally to achieve their

purpose of providing safe working conditions for workers in Washington."9 And

we give substantial weight to the Department's interpretation of these statutes

and regulations.1°

       An employer commits a serious WISHA violation:

       if there is a substantial probability that death or serious physical
       harm could result from a condition which exists, or from one or
       more practices, means, methods, operations, or processes which
       have been adopted or are in use in such workplace, unless the
       employer did not, and could not with the exercise of reasonable
       diligence, know of the presence of the violation.[111

       The court previously held that the Department makes out a prima facie

case for a "serious violation" when it proves:

      (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 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.[12]

      IMCO does not challenge the Board's findings on elements 1, 2, 4, or 5.

Those findings are thus verities on appea1.13 Rather, IMCO only argues that




      9 Frank    Coluccio Constr. Co., 181 Wn. App. at 36.
      10   Id.

      11   RCW 49.17.180(6).

      12 Express Constr. Co. v. Dep't of Labor & Indus., 151 Wn. App. 589, 597-
98, 215 P.3d 951 (2009).

      13   Mid Mountain Contractors, Inc., 136 Wn. App. at 4.


                                         4
No. 76301-6-1/5


substantial evidence fails to support element 3 that IMCO's employees were

exposed to or had access to the falling hazard.

       The Department demonstrates that employees were exposed to or had

access to the violative conditions by showing the "reasonable predictability

that, in the course of[the workers'] duties, employees will be, are, or have been

in the zone of danger.'"14 Thus, the supreme court has held that a worker is

neither exposed to nor has access to a violative condition when he must

"consciously and deliberately remove[]" a protective barrier to reach the violative

condition.15

       IMCO contends that the Board's findings were insufficient because they

showed only that "the alleged violative condition was close by" because

"operational process did not require any employees to be exposed to a fall

hazard."16 But precedent shows that these findings were sufficient.

       Mid Mountain Contractors, Inc. v. Washington State Department of Labor

and Industries17 controls our analysis. In that case, the Department had cited

Mid Mountain Contractors for violating WAC 296-155-657(1)(a).15 That




      14 Id. at 5 (quoting Adkins v. Aluminum Co. of America, 110 Wn.2d 128,
147, 750 P.2d 1257, 756 P.2d 142 (1988)).

       15 Adkins, 110 Wn.2d   at 148.
        16 Amended Opening Brief of Appellant IMCO General Construction, Inc.
at 9, 14-15.

       17   136 Wn. App. 1,146 P.3d 1212 (2006).

       15   Id. at 3.


                                         5
No. 76301-6-1/6


regulation required employers to provide systems to protect their excavation

workers from cave-ins." Mid Mountain Contractors appealed.2°

       In resolving that appeal, we discussed the testimony of a general laborer

at the site named Vern McCollaum.21 McCollaum was present the day the

citation issued, and had access to the hazard and the relevant zone of danger.22

We took note that "[a]lthough McCollaum was not actually within the zone of

danger, he was working within close proximity, and it is reasonably likely that he

could have walked the short distance and been within the zone of danger."23

Despite McCollaum'S work taking place outside the zone of danger, we

emphasized that "Where was nothing to prevent entering the zone during the

conduct of his normal duties."24 On this basis we affirmed the finding of

exposure, and concluded that Mid Mountain violated WAC 296-155-657(1)(a).25

       Here, the Department cited IMCO for seriously violating WAC 296-155-

24611(1)(d). That regulations requires that employers "ensure that the

appropriate fall protection system is provided, installed, and implemented

according to the requirements in this part when employees are exposed to fall


      19   Id.

      2° Id. at 4.

      21   Id. at 7.
      22   Id.

      23   Id.

      24   Id.

      25   Id. at 8.


                                        6
No. 76301-6-1/7


hazards of 10 feet or more to the ground or lower level, while. . .[e]ngaged in

excavation and trenching operations." The regulation also requires "[flail

protection .. . for employees standing in or working in the affected area of a

trench or excavation exposed to a fall hazard of 10 feet or more."26

       IMCO does not contend that the rope surrounding the pit was adequate to

satisfy this regulation, a fact we take as a verity on appea1.27

       The BHA found that:

       [a]s of August 14, 2014, employees of IMCO General Construction,
       Inc. were exposed to or had access to the hazard posed by the
       lack of an adequate fall protection system at the perimeter of the
       pit, including workers who installed and used the access stairs,
       installed braces in the pit, and/or worked in the pit on the auger-
       cast pilings. Not all of these employees were directly engaged in
       excavation work at the site.128]

       The BHA identified numerous facts adduced in its proceeding that support

this finding. It explained that exposure could be proven by circumstantial

evidence. It pointed to Reardon's testimony that he had constructed two

staircases for workers to obtain access to the pit. Employees using those stairs,

or "gather[ing] at the top of the stairs to observe the construction activity below"

as some did, were necessarily exposed to the fall hazard by their proximity to the

edge of the pit. Reardon had further testified that he witnessed employees place

the pump hoses at the perimeter of the pit while he was constructing the stairs.

The BHA made a reasonable inference that the construction of the stairs required


      26   WAC 296-155-24611(1)(d)(ii).

      27   Mid Mountain Contractors, Inc., 136 Wn. App. at 4.

      28   Clerk's Papers at 59.


                                          7
No. 76301-6-1/8


the pit already be excavated and, accordingly, the employees installing the hoses

had access to the edge of the pit. The BHA identified as circumstantial evidence

footprints by the pit's edge and a safety jacket hanging on a railing post at the

edge of the pit. And the BHA found that employees engaged in capping the

auger-cast pilings would have had to work on the bottom of the pit without

protection.

       This evidence, viewed in the light most favorable to the Department, was

sufficient to support the BHA's finding that IMCO employees were exposed to or

had access to the violative condition. Persuasive federal precedent holds that

the presence of employee equipment and materials at the unguarded pit's edge

provides sufficient circumstantial evidence to show exposure.29

       This conforms to Mid Mountain Contractors, Inc. That case stands for the

proposition that employees are exposed to or have access to a violative condition

when, although they work outside the zone of danger, it is reasonably likely that

employees could have obtained access and were not barred from doing so. The

evidence in this case satisfies that standard.

      IMCO makes several arguments why the Department's showing of

exposure was insufficient. None are persuasive.

       First, IMCO argues that Koskela never saw the pump hose being installed

and thus could not testify whether the employees installing it were exposed or

had access to the falling hazard. Reardon testified that he saw employees




      29   Marine Power and Equip. Co.,6 O.S.H. Cas.(BNA) 1427, at 5.


                                         8
No. 76301-6-1/9


installing the pump hose at the pit's edge subsequent to excavation. This was

circumstantial evidence of exposure of the employees to the unsafe condition.

No more was required.

       Second, IMCO argues that the rope railing had been installed before

excavation. Assuming it had, this would be irrelevant. Even if the employees

installing the railing did their job prior to excavation, other employees had

subsequently been exposed or had access to the unguarded pit. And the time of

the rope's installation does not cure its inadequacy as a protection system.

       Third, IMCO argues that employees on the stairs were not exposed

because a protected walkway led to the stairs. This does not bear upon

exposure of those employees once on the stairs, as demonstrated by Reardon's

testimony.

       Fourth, IMCO argues that the evidence fails to show that employees were

assigned to work at the pit's edge or had to pass directly thereby to perform their

work. This argument ignores the standard just discussed, and is thus

unpersuasive.

       Fifth, IMCO suggests that the employees installing the pump hose were

involved in the excavation and thus would be exempt from the relevant

protections. Not so.

      IMCO is correct that employees "[d]irectly involved with the excavation

process and on the ground at the top edge of the excavation" are not entitled to




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No. 76301-6-1/10


the fall protection requirements at issue.3° But under WAC 296-155-650(2), an

excavation is "formed by earth removal."

       Here, the BHA found that "the piping activity was not simply a part of the

initial excavation, but was also necessary on an ongoing basis to insure [sic] that

water was removed from the already excavated pit."31 The employees involved

in placing a pump hose to prevent water accumulation were not involved in

removing earth and, accordingly, were not directly involved with the excavation

process.

       Sixth, IMCO argues that the Department failed to prove that employees

were exposed to or had access to the pit because it failed to show that IMCO did

not provide alternative safety mechanisms, namely a harnessing system. This

argument does not alter our conclusion.

      IMCO raised this argument originally in petitioning for administrative

review before the BHA. Ye in adopting the proposed decision in this matter, the

BIIA declined to make the requested finding that the Department failed to show

the absence of a harnessing system. When the lower tribunal does not make a

written finding, we interpret that absence as adverse to the finding's proponent.32

Accordingly, we conclude t lat this argument is without merit.




      30   WAC 296-155-24611(1)(d)(i)(A).

      31   Clerk's Papers at 57.

      32 Ellerman v. Centerpoint Prepress, Inc., 143 Wn.2d 514, 524, 22 P.3d
795 (2001).


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No. 76301-6-1/11


       Seventh, IMCO argues that this court should adopt a standard that the

Occupational Safety Health Review Commission (OSHRC) has applied in

determining exposure. We ecline to do so.

       IMCO correctly notes that, given the similarity between WISHA and its

federal counterpart, the Occupational Safety and Health Act(OSHA), courts may

turn for persuasive guidance to federal OSHA cases.33 IMCO cites two cases,

which it contends are persuasive here.

       In the first, Secretary of Labor v. Rockwell International Corporation,

Rockwell International Corporation argued that certain machines at its plant did

not violate a machine guarding standard.34 The Secretary of Labor argued that

an employee operating the machines was exposed to injury because, while

standing by the machine, he could hypothetically place his hands beneath a

dangerous descending component.35

      The OSHRC explained that the standard only applied "when the point of

operation exposes an employee to injury."36 It noted that "[w]hether the point of

operation exposes an emp oyee to injury must be determined based on the

manner in which the machine functions and how it is operated by the




         Asplundh Tree E)pert Co. v. Dep't of Labor & Indus., 145 Wn. App. 52,
60, 185 P.3d 646 (2008).

      34 9 O.S.H. Cas.(BNA) 1092 (1980).

      35   Id. at 6.

      36   Id.


                                         11
No. 76301-6-1/12


employees."37 The method of the relevant machine's operation did not involve

the employee placing his ha ids in dangerous proximity to the descending

component.38 The OSHRC easoned that the Secretary of Labor's argument

required impermissible speculation without evidence.39

       The second case, Secretary of Labor v. RGM Construction Company,

concerned a violative condition similar to that in this case.4° The Secretary of

Labor had cited RGM Construction Company for, among other violations,

exposing employees to the [Inguarded edge of an open-sided floor or plafform on

part of a bridge.41

       The OSHRC explained that it was the Secretary's burden to prove

exposure by:

      showing that, during the course of their assigned working duties,
      their personal comfort activities on the job, or their normal ingress-
      egress to and from their assigned workplaces, employees have
      been in a zone of danger or that it is reasonably predictable that
      they will be in a zone of danger. . . The zone of danger is
      determined by the hazard presented by the violative condition, and
      is normally that area surrounding the violative condition that
      presents the danger to employees which the standard is intended
      to prevent.(421




      37 Id.

      38   Id.
      89 Id.
      40 17 O.S.H. Cas.(BNA) 1229 (1995).

      41   Id. at 4.

      42   Id. at 5.


                                        12
No. 76301-6-1/13


The OSHRC went on to conclude that the Secretary had failed to prove exposure

where the surface in question was wide enough to provide "ample room to walk

along the bridge surface without being in danger of falling off the edge."43

Without evidence that employees had walked or engaged in other dangerous

conduct by the edge, exposige was not shown."

       These cases are unpersuasive for two reasons. First, we will not take

persuasive guidance from the OSHRC when there is contrary Washington

precedent that controls. As we held in Mid Mountain Contractors, Inc., the

Department meets its burden if it shows that an employee "was working within

close proximity, and it is reasonably likely that he could have walked the short

distance and been within the zone of danger."45 The key inquiry under

Washington law is whether anything "prevent[ed the employee from] entering the

zone during the conduct of his normal duties."46 We have already analyzed the

application of this rule to th s case.

       Furthermore, the OSHRC standard would not change our conclusion.

Unlike in Rockwell International Corporation, there was no speculation here,

given the circumstantial ev dence we already discussed. And unlike in RGM

Construction Company, that evidence demonstrated that employees were within

the zone of danger. As Reardon testified, employees had to lay the pump hose


       43   Id. at 6.
       44   id.

       45   136 Wn. App. at 7.
      46    Id.



                                         13
No. 76301-6-1/14


after the pit had been excavated. Employees also had to use the staircase and

stood around its top unguarded. Thus, they were within the zone of danger.

Under both Rockwell International Corporation and RGM Construction Company,.

exposure was proven.

      In its reply brief, IMCO raises additional arguments concerning the identity

of the employees who left tt-e footprints. We decline to reach these as

untimely.47

      We affirm the superior court's judgment and order.
                                                                          I




WE CONCUR:



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      47Deutsche Bank Nat. Trust. Co. v. Slotke, 192 Wn. App. 166, 177, 367 •
P.3d 600, review denied, 185 Wn.2d 1037 (2016).


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