     IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

POTELCO, INC.,
                                            )        No. 72845-8-1                       CJ~
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                       Appellant,                                                        CO
                                            )        DIVISION ONE                        —1
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                v.                                                                       C".   T~- *x: r'
                                            )        UNPUBLISHED OPINION                 TTf
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DEPARTMENT OF LABOR AND                                                                        .•.it
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INDUSTRIES,
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                       Respondent.           )       FILED: October 5, 2015


          Trickey, J. — The Washington State Department of Labor and Industries issued a

$700 citation to Poteico, Inc., following Potelco's efforts to replace a damaged utility pole

in Issaquah, Washington. Poteico appealed the citation to the Board of Industrial

InsuranceAppeals (Board) where it unsuccessfully argued that the citation was as a result

of "unpreventable employee misconduct." The Board upheld the citation. The King
County Superior Court affirmed the Board on administrative appeal. Finding no error, we

affirm.

                                             FACTS

          Poteico provides services related to power lines.1 At approximately 10:00 p.m. on

August 4, 2011, a Poteico crew responded to a report ofa broken power pole along Tiger
Mountain Road in Issaquah. An automobile collision had caused the pole to break, which

had left high voltage power lines, as well as the damaged pole, either on or in close
proximity to the ground. In response, Puget Sound Energy asked Poteico to replace the
damaged pole and to move the wires from the damaged pole to a replacement pole.


1"BR" indicates citation to the certified appeal board record. When citation to witness testimony
is made, the witness's last name will follow "BR."
No. 72845-8-1 / 2


      The responding Poteico crew consisted of foreman Bill Enger, linemen Jeff

Richartz and James Waters, and apprentice Scott Hendrickson.          After arriving, the

Poteico crew held a safety meeting where they reviewed the work to be performed. Enger

and Richartz then placed tags on poles to the south and north of the worksite to indicate

that the crew was working on the section of power line between the tagged poles.

Subsequently, Waters and Hendrickson installed bracket grounds on the power line both

north and south of the damaged pole.       Known as "bracket grounding," this process

connects power lines to the ground for the purpose of directing any electrical current

through the bracket grounds and into the ground so that any current would not make
contact with members of the repair crew.2 Once the "bracket grounding" was completed,

Waters and Richartz began untying the power line from the damaged pole.3
       At that point, Enger and Hendrickson returned to their trucks, which were parked
near the damaged pole. Enger planned to reposition his truck so that he could shine his
headlights on the damaged pole to improve visibility. As Enger drove by the worksite,
Waters, who was untying the power line, lost his balance and fell backward onto the road.
Enger's vehicle struck Waters. Unfortunately, Waters' injuries were fatal.
       Following an investigation of the worksite, the Washington State Department of
Labor and Industries (Department) issued Poteico a citation for a "serious violation" of
WAC 296-45-345(3) for failing to establish an "equipotential zone" (EPZ).4 WAC 296-45-
345(3) is as follows: "Equipotential zone. Temporary protective grounds shall be placed
at such locations and arranged in such a manner as to preventeach employee from being



2 Clerk's Papers (CP) at 3.
3 CP at 3.
4 BR at 42.
No. 72845-8-1 / 3


exposed to hazardous differences in electrical potential." The Department assessed a

$700 citation for the violation.

       On May 7, 2012, Poteico appealed the citation to the Board of Industrial Insurance

Appeals (Board). There, Poteico conceded that its crew had failed to establish an EPZ

at the worksite as required by WAC 296-45-345(3), but asserted the affirmative defense

of "unpreventable employee misconduct" under RCW 49.17.120(5),5 arguing that it
should not be held responsible for the misconduct of its employees.

       On August 27, 2013, the Board issued a proposed decision and order affirming the
citation, wherein it rejected Potelco's affirmative defense.

       Poteico filed a timely petition for review. On October 15, the Board issued a final
decision, including findings of fact and conclusions of law and an order affirming the
citation. The Board made two findings offact concerning the affirmative defense asserted

by Poteico; each finding is at issue in this appeal:
       7.      On August 4, 2011, and August 5, 2011, Potelco's safety program
               was not thorough, and equipment necessary to implement the
               required protective grounding was not provided to all workers.
        8.     On August 4, 2011, and August 5, 2011, Potelco's safety program
               and its rules were not adequately communicated to its employees.161
In conclusion of law 5, the Board rejected Potelco's affirmative defense, concluding that


5This provision is as follows:
              (5)(a) No citation may be issued under this section if there is unpreventable
        employee misconduct that led to the violation, but the employer must show the
        existence of:
                (i) Athorough safety program, including work rules, training, and equipment
        designed to prevent the violation;
                (ii) Adequate communication ofthese rules to employees;
                (iii) Stepsto discover and correct violations of its safety rules; and
                (iv) Effective enforcement of its safety program as written in practice and
        not just in theory.
6 BR at 3.
No. 72845-8-1/4


"[t]he violation of WAC 296-45-345(3) that occurred on August 4, 2011, and August 5,

2011, was not the result of unpreventable employee misconduct within the meaning of

RCW 49.17.120(5)."7

       Poteico appealed to the King County Superior Court, as permitted in the

Washington Industrial Safety and Health Act (WISHA), chapter 49.17 RCW. The court

found that substantial evidence supported the Board's findings. The court adopted the

findings and the Board's conclusions of law.       The court entered findings of fact,
conclusions of law, and judgment against Poteico, and ordered it to pay the penalty ofthe

citation, which amounted to $700, as well as a statutory attorney fee of $200.

       Poteico appeals.

                                       ANALYSIS

       On appeal, Poteico assigns error to the superior court's adoption of the Board's
findings of fact 7 and 8, arguing that these findings are not supported by substantial
evidence. Poteico further assigns error to the court's adoption ofthe Board's conclusion
of law 5, arguing that the challenged findings do not support the conclusion. We disagree.
       In a WISHA appeal, we review a decision by the Board directly, based on the
record before the agency. Mowat Constr. Co. v. Dep't of Labor &Indus., 148 Wn. App.
920, 925, 201 P.3d 407 (2009). The Board's findings of fact are conclusive if supported
by substantial evidence when viewed in light of the record as a whole. RCW 49.17.150(1);
RCW 34.05.570(3)(e); Mt. Baker Roofing. Inc. v. Dep't of Labor &Indus., 146 Wn. App.
429, 433, 191 P.3d 65 (2008). "Substantial evidence" is evidence in sufficient quantum to
persuade a fair-minded person of the truth of the declared premise. Mowat Constr., 148


  BR at 4.
No. 72845-8-1 / 5


Wn. App. at 925. All evidence is viewed in the light most favorable to the prevailing party

and all reasonable inferences are drawn in favor of the same.      Frank Coluccio Constr.

Co. v. Dep't of Labor & Indus.. 181 Wn. App. 25, 35, 329 P.3d 91 (2014). If the Board's

findings of fact are supported by substantial evidence, we will then review the Board's

conclusions of law to determine whether they are appropriate based on the findings of

fact and whether the findings support the conclusions. Mt. Baker Roofing, 146 Wn. App.

at 433.

          "The Department bears the initial burden of proving a WISHA violation." Frank

Collucio Constr., 181 Wn. App. at 36. However, under WISHA, an employer may choose

to assert an affirmative defense to liability by claiming that a violation was caused by

"unpreventable employee misconduct," rather than any wrongdoing by the employer.
RCW 49.17.120(5); Wash. Cedar &Supply Co.. Inc. v. Dep't of Labor &Indus., 119 Wn.
App. 906, 911, 83 P.3d 1012 (2003). "The defense," we have said, "addresses situations
in which employees disobey safety rules despite the employer's diligent communication
and enforcement." Asplundh Tree Export Co. v. Dep't of Labor & Indus., 145 Wn. App.

52, 62, 185 P.3d 646 (2008). When the defense is asserted successfully, it defeats the
Department's claim, even though the Department has proved all the elements of a
violation. Asplundh Tree Export, 145 Wn. App. at 62. An employer that asserts this

defense has the burden of proving all four elements of the defense. Asplundh Tree

Export, 145 Wn. App. at 62.

          The four elements of the defense are as follows:

                (5)(a) No citation may be issued under this section if there is
          unpreventable employee misconduct that led to the violation, but the
          employer must show the existence of:
No. 72845-8-1 / 6


              (i) A thorough safety program, including work rules, training, and
       equipment designed to prevent the violation;
             (ii) Adequate communication of these rules to employees;
              (iii) Steps to discover and correct violations of its safety rules; and
              (iv) Effective enforcement of its safety program as written in practice
       and not just in theory.

RCW 49.17.120.

       In finding of fact 7, the Board found that "Potelco's safety program was not
thorough, and equipment necessary to implement the required protective grounding was
not provided to all workers."8 In finding of fact 8, the Board found that "Potelco's safety
program and its rules were not adequately communicated to its employees."9
        In its merits briefing, Poteico argues that neither one of these findings was
supported by substantial evidence in the record.          However, at oral argument on
September 17, 2015, counsel for Poteico conceded that a reasonable trier of fact could
find, based on the record, that the training provided by Poteico was insufficient insofar as
it concerned EPZ zones. For this reason, and for the reasons set forth below, we
conclude that both findings are, in fact, supported by substantial evidence in the record.
        By the plain language of RCW 49.17.120(5)(a), a "thorough safety program" must
include "equipment designed to prevent the violation," and it must be adequately
communicated to employees.           If these directives are not met, the defense of
"unpreventable employee misconduct" cannot be successfully asserted.
        Potelco's safety manual, which was designated as part of the record on appeal,
directs that, in dealing with downed power lines, "personal protective grounds must be
installed on both sides of the work location, and all workers must wear approved rubber



 8 BR at 3.
 9 BR at 3.
No. 72845-8-1 / 7


gloves or stand on conductive mats."10 Notably, though, rubber gloves may only be used

"on 5,000 volts or less between phases," WAC 296-45-325(9), and the voltage at the

Tiger Mountain worksite was 12,470 phase to phase.11

       Moreover, Larry Rupe, Potelco's safety director, testified that gloves cannot be

used as the primary protection in Washington and that the Tiger Mountain crew "should

have had a mat," though he was not certain if the crew actually had a mat.12 According

to Bill Enger, the foreman of the Tiger Mountain crew, the crew did not have an EPZ mat

that night; he also noted that mats were not made available to employees at that time by
Poteico. This evidence suggests that Poteico did not have a thorough safety program.

       Other evidence indicates that Poteico failed to adequately communicate its safety

program to its employees. While Poteico offered evidence of its efforts to communicate
to employees its work rules, including information regarding the use of EPZs, testimony
elicited from its employees suggests that these efforts were inadequate. For instance,
both Enger—the foreman of the crew13—and Richartz mistakenly believed that the use of
"bracket grounding" was appropriate under the circumstances. Notably, Enger had been
employed by Poteico for 11 years and Richartz for 7 years. And yet, neither one was
aware that use of an EPZ was required under the circumstances.

       We conclude that substantial evidence supports the challenged findings of fact.

Consequently, we conclude that these findings support the challenged conclusion of law,


10 Exhibit 1 at 11-14; BR Rupe at 17.
11 BR Richartz at 56.
12 BR Rupe at 20, 82.
13 "In cases involving negligent behavior by a supervisor orforeman which results in dangerous
risks to employees under his or her supervision, such fact raises an inference of lax enforcement
and/or communication of the employer's safety policy." Brock v. L.E. Myers Co., High Voltage
Div., 818F.2d 1270, 1277 (6th Cir. 1987V see generally Wash. Cedar. 119Wn. App. at 911-13
(affirming a Board decision that "specifically followed . . . Brock").
No. 72845-8-1 / 8


wherein the Board rejected Potelco's defense of "unpreventable employee misconduct."

In view of this, we hold that the superior court did not err in adopting the Board's findings

of fact and conclusion of law.14

       Affirmed.




                                                          TVs* c/£<c y              J"
WE CONCUR:




14 Poteico assigns error to the superior court's award of statutory attorney fees to the Department
as the prevailing party on administrative appeal. We decline to grant Poteico appellate relief with
regard to the award of attorney fees.
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