                                                                    FILED
                                                            CORI OF APPEALS DIV I
                                                             STATE OF WASHINGTON

                                                             26113tiAR 12 All 8:38

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 NORTHWEST CASCADE INC.,
                                                       No. 76475-6-1
                     Appellant,
                                                       DIVISION ONE
              V.
                                                       UNPUBLISHED OPINION
WASHINGTON STATE DEPARTMENT
OF LABOR AND INDUSTRIES,
                                                       FILED: March 12, 2018
                     Respondent.

      APPELMCK, J. —The Board of Industrial Insurance Appeals fined Northwest
Cascade for exposing employees to an unsafe ladder. The trial court affirmed.

Northwest Cascade contends that the Department did not present a prima facie

case of a serious violation. However, the Board's findings reflect substantial

evidence of a serious violation. We affirm.

                                     FACTS

      In August 2014, Northwest Cascade Inc.(NWC) was upgrading the storm

drainage system for the city of Des Moines. For the project, NWC excavated a

trench that, on average, was between five and a half and six feet deep.

       David Lundeen, then a safety compliance officer for the Department of

Labor and Industries (Department), conducted an inspection of the construction

site on August 20, 2014. The Department cited NWC for three Washington

Industrial Safety and Health Act of 1973(WISHA), ch. 49.17 RCW, violations.
No. 76475-6-1/2


       NWC appealed to the Board of Industrial Insurance Appeals (Board). The

Board vacated two of the violations, but affirmed the third, violation of WAC 296-

876-30005(1), which requires employers to keep portable ladders in good, usable

condition.

       Then, NWC appealed the final order affirming the third violation to King

County Superior Court. The court found substantial evidence to uphold the implied

finding that the employees were exposed to the ladder hazard. NWC appeals.

                                  DISCUSSION

       NWC argues that the Board erred in finding that it committed a serious

violation of WAC 296-876-30005(1). Specifically, it contends that the Department

failed to meet its burden in establishing that employees were exposed to the

damaged ladder, or that any employee would need to use the ladder after it

became damaged at the jobsite.

  I.   Standard of Review

       This court reviews a decision by the Board directly, based on the record

before the agency. Express Constr. Co. v. Dep't of Labor & Indus., 151 Wn. App.

589, 595, 215 P.3d 951 (2009). We review findings of fact to determine whether

they are supported by substantial evidence. Id. at 595-96. The findings of fact are

conclusive if supported by substantial evidence when viewed in light of the record

as a whole. Id.; RCW 49.17.150(1); RCW 34.05.570(3)(e). Substantial evidence

is evidence in sufficient quantum to persuade a fair-minded person of the truth of

the declared premise. Express Const. Co., 151 Wn. App. at 596.




                                            2
No. 76475-6-1/3


 II.   Prima Facie Requirements of a Serious WISHA Violation

       The Department cited NWC for a serious violation of WAC 296-876-

30005(1), a specific WISHA regulation providing:

       You must keep portable ladders in good, usable condition. Good,
       usable condition includes, but is not limited to:

                (a) Joints between the steps or rungs and the side rails are
       tight.

                (b) Rungs, cleats, or steps are not bent, broken, or missing.

                (c) Side rails are not bent, broken, or split.

                (d) All bolts and rivets are in place and secure.

             (e) Hardware, fittings, and accessories are securely attached
       and working properly.

                (f) Ropes are not frayed or badly worn.

                (g) Moveable parts operate freely without binding or excessive
       play.

             (h) Safety feet and other auxiliary equipment are not
       excessively worn.

                (i) Metal components are not corroded.

                (j) There are no other faulty or defective components.

A "serious" violation exists

       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.
RCW 49.17.180(6).

       When the Department charges an employer with a WISHA regulation

violation, the Department bears the initial burden of proving the violation occurred.


                                                3
No. 76475-6-1/4


Pilchuck Contractors, Inc. v. Dep't of Labor & Indus., 170 Wn. App. 514, 518, 286

P.3d 383 (2012). If it charges a "serious" violation of a specific WISHA provision,

the Department must prove as part of its prima facie case:(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. Id.

       Out of the five requirements, NWC argues that substantial evidence fails to

support only the third—that employees were exposed to or had access to the

violative condition, a damaged ladder. It contends that the Department offered no

credible evidence that the ladder would be, had been, or was used in its damaged

condition.

       To determine whether a worker is exposed to a hazard in violation of

WISHA, the Department must show that the worker had access to the violative

conditions. Mid Mountain Contractors, Inc. v. Dep't of Labor and Indus., 136 Wn.

App. 1, 5, 146 P.3d 1212 (2006). To establish employee access, the Department

must show by reasonable predictability that, in the course of the workers' duties,

employees will be, are, or have been in the zone of danger. Id.

       In Mid Mountain Contractors, the Department cited Mid Mountain for

exposing employees to a cave-in hazard in a trench at the jobsite. Id. at 3. Mid

Mountain argued that the Department failed to show that employees were exposed

to the violation, because its employees were working in a portion of the trench that


                                            4
No. 76475-6-1/5


was less than four feet deep and more than five feet away from the zone of danger.

Id. at 5. This court rejected Mid Mountain's argument, noting that the proper

standard is whether the employees had access to the hazard posed by the

unprotected south wall that was subject to cave-in. Id. at 6. We found,

      Vern McCollaum, a Mid Mountain employee present the day of the
      citation, had access to the hazard, and it was within his normal duties
      to have access to this area.... Although 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. There was nothing to prevent
      entering the zone during the conduct of his normal duties.

Id. at 7. We concluded that Mid Mountain violated the WISHA standards and

affirmed the decision and order. Id. at 7-8.

       Here, NWC contends that there is no evidence that employees used the

damaged ladder, nor any evidence that employees intended to use it. But, as in

Mid Mountain Contractors, the proper standard is whether employees had access

to the hazard posed by the damaged ladder. When the hazard is equipment, there

must be evidence that it is located where employees could gain access to it and

use it in the course of their normal duties. See Adkins v. Aluminum Co. of Am.,

110 Wn.2d 128, 147-48, 750 P.2d 1257, 756 P.2d 142 (1988) (applying the

standard from the federal counterpart to WISHA and finding that a roofer was not

exposed to an unguarded machine beyond his work area).

       During his inspection, Lundeen observed a ladder next to the trench.

Lundeen testified that it was a twelve foot ladder that was part of an extension

ladder, with the other part of the ladder missing. The ladder had bent rails, making

it unsafe to use and a violation of WAC 296-876-30005(1)(c). Lundeen did not see


                                               5
No. 76475-6-1/6


any other ladders at the jobsite. Lundeen testified that, after speaking with the

foreman, he understood that the crew had used the ladder.

       The site foreman, James Hernandez,first testified that he did not remember

what he told Lundeen about the damaged ladder. Hernandez then testified that

he did not see anyone use the damaged ladder, and that he did not tell Lundeen

that anyone had used it. Hernandez testified that workers could use a ladder to

get in and out of the kind of trench box that was at the NWC jobsite. But, he stated

that he probably would not have used the ladder to get in and out of this particular

trench box, because there was a ramp to get out of the back of the trench.

Hernandez explained that to use the ladder, first the ladder would go in the trench,

then the worker would use it to go down, then the ladder would have to come out,

to facilitate bringing in the pipe.

       Robert Solis, a laborer working at the NWC site on the day of the inspection,

testified that he was the only one in the trench that day. Solis also testified that

there was no need for using a ladder that day. Solis described how he exited the

trench using the ramp, but did not testify how he entered the trench.

       As in Mid Mountain Contractors, Solis, the NWC employee present on the

day of the citation, had access to the hazard, and it was within his normal duties

to use the ladder. Although Lundeen did not see the damaged ladder inside the

trench box, it was within close proximity. And, Hernandez testified that, when using

the ladder, workers would have to take the ladder out of the trench box to bring in

the pipe. It is reasonably likely that the workers could have used the damaged

ladder to enter the trench box. The Board made a reasonable inference that NWC


                                            6
No. 76475-6-1/7


exposed workers to the unsafe ladder. Therefore, NWC violated the WISHA safety

standards.

      Further, in its decision affirming the Board, the trial court found that there

was a clear implication in the testimony from Hernandez and Solis that there were

occasions when workers used a ladder in the course of this project. It stated,

      Because the ladder was the only ladder on site, and because the job
      at times involved (and even required per Mr. Hernandez) use of a
      ladder, it is reasonably predictable that, in the course of their duties,
      [NWC] employees would use the defective ladder and, therefore,
      were exposed to the hazard in violation of WISHA.

We agree with the trial court's reasoning.

      We affirm the decision and order.



WE CONCUR:




                                             7
