                                                                      FILED
                                                                  NOVEMBER 15, 2018
                                                               In the Office of the Clerk of Court
                                                              WA State Court of Appeals, Division III




         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                            DIVISION THREE

POWER CITY ELECTRIC INC.,   )
                            )                          No. 35676-1-III
               Appellant,   )
                            )
     v.                     )
                            )
WASHINGTON STATE DEPARTMENT )                          UNPUBLISHED OPINION
OF LABOR AND INDUSTRIES,    )
                            )
               Respondent.  )

       KORSMO, J. — Power City Electric (PCE) appeals from a decision of the Board of

Industrial Insurance Appeals that found it to have committed four serious violations of

the Washington Administrative Code (WAC). Concerned about the adequacy of the

Board’s factual findings, we remand for more detailed findings and clarification of the

standard applied by the Board in its ruling.

                                          FACTS

       An effort to reroute underground power cables in Pasco is the basis for this case.

PCE was hired to move the power cables and had to dig a hole on the side of Court Street

to do so. A Department of Labor and Industries (DLI) compliance officer, Reynaldo
No. 35676-1-III
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Gomez, was driving by the scene when he noticed only the helmeted head of a worker in

the hole. Concerned about the depth of the dig, he stopped to investigate.

       Two men stepped out of the excavation by use of a notch dug into the shallower

south side of the hole. Dirt from the dig was piled immediately next to the deep end of

the trench.1 The excavation measured about six feet wide by ten feet long. A one foot

section on the north side of the dig was measured to be six feet deep. The depth ranged

from 30 to 48 inches in the remainder of the dig. Gomez graded the sandy soil in the

excavation as Type C—unstable. There were no measures in place to prevent collapse of

either the hole or of the spoils pile. Photographs of the scene were taken.

       The two workers had been clearing fiber optic lines by shovel in the shallower side

of the trench. Their work zone was within 3.5 feet of the six foot deep section where the

backhoe was excavating.

       DLI issued four major infraction notices, fining PCE $7,200. The Industrial

Appeals Judge (IAJ) heard testimony from Mr. Gomez and the PCE foreman, Julian

McCarthy. The IAJ upheld the citation for failure to provide a safe means of ingress and

egress, but rejected the other citations. Both PCE and DLI appealed.

       The Board upheld all four citations and the $7,200 in total fines for the four

serious violations. The Board entered a decision that included an extensive discussion as



       1
           This is referred to as the “spoils pile.”

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well as findings of fact and conclusions of law. Clerk’s Papers (CP) at 5-12. The

superior court adopted the Board’s conclusions of law and affirmed its decision.

       PCE appealed to this court. A panel heard oral argument on the case.

                                        ANALYSIS

       This appeal challenges, for varying reasons, whether the record supports the

Board’s factual findings. PCE also alleges that the Board applied the wrong standard in

assessing the risk of danger to workers. In order to explain our uncertainty and the need

for clarification by the Board, we need to address some of the regulations at issue and the

corresponding findings.

       In order to establish a serious violation of state worker safety standards, RCW

49.17.180 requires proof that “death or serious physical harm could result” from an

existing condition. With respect to construction work, state safety standards are set out in

chapter 296-155 WAC. Washington adopted the federal standards governing the role of

likelihood of harm in assessing a violation of the state safety standards in Adkins v.

Aluminum Company, 110 Wn.2d 128, 750 P.2d 1257, 756 P.2d 142 (1988). A violation

of safety standards is established when an employee has “access” to the unsafe condition;

access is established when DLI shows “a reasonable predictability that, in the course of

their duties, employees will be, are, or have been in the zone of danger.” Id. at 147

(emphasis omitted). Accord, Mid Mountain v. Labor & Indus., 136 Wn. App. 1, 5, 146

P.3d 1212 (2006) (applying Adkins standard to an excavation setting).

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       WAC 296-155-657(1) requires that workers in an excavation be protected from

the dangers of cave-ins by either sloping the excavation or installing protective systems.

WAC 296-155-657(2), (3). No protection is needed if the excavation is less than four

feet and an examination reveals “no indication of a potential cave-in.” WAC 296-155-

657(1).

       Although the discussion segment of the Board’s decision addressed the facts in a

detailed manner similar to (but more extensive than) our brief recitation of them at the

beginning of this opinion, its formal findings of fact are more conclusory. Finding 2

states in part that PCE:

       exposed its employees to potential cave-ins in a trench excavation of four
       feet or more in depth. The workers had access to the hazard posed by the
       unprotected portion of the excavation while in the course of their normal
       duties.

CP at 10.

       This finding lacks detail allowing this court to understand how PCE exposed its

workers and how they had access to the hazard. Several possibilities exist in the record

that would support the Board’s ruling. The excavation was not sloped, nor were there

protective systems installed. Thus, if the workers were working in a portion of the trench

that was four feet or deeper, the violation would be clear. However, there is no fact

finding that the men were working in that area. Similarly, the south side of the trench

was described as 30 to 48 inches deep, with no clear finding that the men worked in that


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portion of the trench either. Moreover, the lack of sloping or protective equipment, in

combination with the Type C soil, may have been hazardous in and of itself. The Board’s

reasoning on this point is unclear.

        Instead, finding 2 simply says that the men had “access” to areas “four feet or

more in depth.” The word “access” is insufficiently descriptive to explain how the men

were endangered. Were they working in an area that was four feet deep? Was the soil in

danger of collapsing on them? Did the hole slope sufficiently that a worker might be

expected to tumble into the deep end? Were they working so close to the deeper portion

of the trench that they would have been endangered by a collapse occurring on the north

side?

        In contrast to these findings are the details in Mid Mountain. There the excavation

occurred in Type B soil that required an excavation of four feet six inches deep to have a

similar set back and that the “zone of danger” was an area within four feet six inches of

the south wall. 136 Wn. App. at 6. As in this case, the employer there argued that its

employees “were working in a portion of the trench that was less than four feet deep and

more than five feet away from the zone of danger.” Id. at 5. Based on the requirements

for Type B soil and the evidence of the dimensions of the excavation, the Mid Mountain

court was able to conclude that the worker was working within close proximity of the

zone of danger and it was reasonably likely that he could have walked into that zone

during the normal course of his work. Id. at 7.

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       The Board’s findings in this case are not sufficiently detailed to allow this court to

analyze the contentions in the same manner as Mid Mountain. We do not know what

facts the Board relied on in making its determination and thus cannot discern why the

Board considered the workers within the “zone of danger”. We also do not know

whether, assuming the area to which the workers were exposed was under four feet, an

examination revealed “no indication of a potential cave-in.”

       Similarly, the findings related to spoils pile do not suggest why the pile constituted

a hazard to the workers. The presence of the pile within two feet of the excavation

constituted a violation of WAC 296-155-655(10)(b), but why it constituted a major

violation due to the risk it imposed to the workers is not explained in the Board’s

findings. Did the pile threaten to collapse the north end of the trench? Was it likely to

slide into the trench of its own accord?

       Thus, we remand to the Board for entry of more detailed findings of fact that

explain its determination that the PCE workers had access to the zone of danger. Because

PCE argues that the Board applied the wrong standard in making its determination, we

also direct the Board to ascertain that it applied the Adkins “reasonable predictability”

standard to its determination that the workers had access to the zone of danger.

       This court will retain jurisdiction over the appeal. Upon entry of appropriate

findings, they shall be transmitted to the clerk of this court. The panel will determine



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whether additional briefing is necessary, but will remain open to a request from either

party to file a supplemental brief concerning the supplemental findings.

      Remanded.

      A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to

RCW 2.06.040.




WE CONCUR:




      Fearing,J.




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