                                                                                                   FILED
                                                                                            CC1U Or APPEALS


                                                                                           2013 OCT -8   AM 9: 26
      IN THE COURT OF APPEALS OF THE STATE OF W

                                                 DIVISION II

PILCHUCK CONTRACTORS, INC.,                                 I               No. 433,


                                       Appellant,

        V.



DEPARTMENT                 OF          LABOR        AND               UNPUBLISHED OPINION
INDUSTRIES,

                                        Respondent.

        Penoyar,       J. —   Pilchuck appeals the Board of Industrial Insurance Appeals' (Board)

decision that the Department of Labor and Industries (Department) proved two violations by
Pilchuck. Pilchuck argues that (1) Department did not prove a prima facie case because it did
                                  the
not show that Pilchuck violated the Washington Administrative Code (WAC) standards or that
Pilchuck knew of the violations, ( )even if the Department proved a prima facie case, the
                                 2
affirmative defense of employee misconduct applied, and (3) Department erred in calculating
                                                          the
Pilchuck's   penalty.' There is substantial evidence that Pilchuck violated the applicable WACs
and that it could have known of the violations through the exercise of reasonable diligence.

Additionally, the Board did not err by finding that the employee misconduct defense did not
apply because Pilchuck failed to establish that it had taken steps to discover and correct
violations and that it       effectively enforced     its   safety program in practice. The Board correctly




1
   The Department correctly states that Pilchuck did not assign error to any of the Board's
findings of fact. Under Division II's general order 98 2,an appellant does not have to separately
                                                         -
assign error to each challenged finding of fact as RAP 10. (g) 3 requires, but the appellant must
still provide the verbatim text of the finding of fact. Pilchuck did not do so here;Labor & all of
                                                                                     therefore,     Indus.,
the   findings   are   verities   on   appeal. Mid Mountain Contractors, Inc. v. Dep't of
136 Wn. App. 1,4, 146 P. d 1212 (2006).This would effectively negate Pilchuck's appeal, but
                       3
we exercise our discretion under RAP 1. ( address the issues Pilchuck raised.
                                     c)
                                      2 and
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      - -



affirmed the Department's penalty calculation because there was. substantial evidence that the

Department considered all of the mitigating factors. We affirm.
                                                 FACTS


         The Department received an anonymous complaint about possible safety hazards at a
Pilchuck   jobsite. On June 16, 2009, a safety compliance officer for the Department, John

Korzenko, visited the jobsite. When he arrived, he saw three Pilchuck employees working in a

trench. The trench varied in depth, but the area where the employees were working appeared to

be over eight feet deep. The employees were using a single hydraulic cylinder and Finn boards
                                                                            A
to shore the   sides of the trench. There      were "   spoils pile[ ] along the edge of the trench.
                                                                   s

Clerk's Papers (CP)at 166.

         Korzenko inspected the site and spoke with the foreman, Jeff Heaton. Korzenko issued
Pilchuck a citation with three serious violations based on his observations at the jobsite on June

16. He issued the first violation, 1. ,because the trench lacked a safe exit. He issued the second
                                    1

violation, 1. ,because the spoils piles were not at least two feet away from the edge of the trench
            2
as WAC 296-155-
              b) He issued the third violation, 1. ,because the trench was
              655( 0)(
                 1 requires.                     3
not adequately protected from cave ins as WAC 296 -155-657( )(
                                    -                  a) 1 requires. Trenches over six

2
    The record also refers to the   cylinder        pump jack." CP
                                                  a "
                                               as -                             at 259.   The cylinder extends
horizontally across the trench to keep the soil on the sides of the trench from caving in.
3
 Finn boards are fiberglass coated plywood boards that vertically line the walls of the trench.
The hydraulic cylinders push up against the boards to shore the sides of the trench.
4
    A spoils pile"is a pile of material excavated from the trench. CP at 165.
      "
5
 A violation is " erious"if there is a substantial probability that death or serious physical harm
                s           "
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." RCW
180(
49. 7.
   6).
   1
                                                        2
43327 3 II
      - -




feet deep require two hydraulic cylinders for shoring, and this trench, which was at least eight
feet   deep, only   had   one   cylinder. The Department penalized Pilchuck $
                                                                            9, 3, per
                                                                              450— 150
                                                                                   $

violation.


         Pilchuck appealed the violations to the Board. At the hearing, Pilchuck's safety director

testified that Pilchuck ensures compliance with its trenching and excavation safety program by

holding safety meetings, providing safety trainings and orientations, providing the proper tools

and techniques, and conducting field inspections. He also testified about Pilchuck's disciplinary

policy, explaining that the method of discipline varied by circumstances and that it could be
anything from a written or verbal warning to termination. He stated that Heaton was given a
written warning for the violations at issue here.

         Korzenko also testified and explained how he reached the penalty amount for each
violation.   He stated that he considered the condition of the soil, the amount of time the

employees were exposed to the hazards, the sloughing of materials on the trench walls, and the
lack of adequate shoring. He said that he also considered the employees' training, Pilchuck's
safety program, the presence on the jobsite of a competent person, and the adequate shoring in
some parts of the trench.

         After the hearing, the industrial appeals judge (IAJ)vacated violation 1. and affirmed
                                                                                 1
violations 1. and 1. .
            2      3            The IAJ found that the spoils piles were too close to the trench, the

shoring in the trench was not adequate for the depth, and Pilchuck could have known of the
violations "with the exercise of reasonable diligence." CP at 51 (FF 6). IAJ also rejected
                                                                       The

Pilchuck's affirmative defense of employee misconduct, finding that it was not taking adequate

6
    A competent person is "an individual who is capable of identifying existing and predictable
hazards or working conditions that are hazardous, unsanitary, or dangerous to employees, and
who has authorization to take prompt corrective measures to eliminate them."CP at 379.
                                                      3
43327 3 II
      - -




steps   to discover    safety   violations   or   effectively enforcing   its   safety program. The Board

adopted the IAJ's decision and order. Pilchuck appealed to the superior court, which affirmed
the Board. Pilchuck now appeals to this court.

                                                   ANALYSIS


I.        STANDARD OF REVIEW


          We review the Board's decision directly, based on the record before the agency. Mowat
                                                                                          407 (2009). We
Constr. Co.     v.   Dep't of Labor & Indus.,148 Wn. App. 920, 925, 201 P. d
                                                                         3


review the Board's findings to determine if they are supported by substantial evidence in the
record.    RCW       49. 7. Substantial evidence is evidence sufficient to persuade a fair-
                     150(
                        1
                        1 ).

minded person of the truth of the declared premise. Mowat Constr. Co., Wn.App. at 925..
                                                                     148
H.        VIOLATIONS


          Pilchuck first argues that the Board erred by finding that the Department proved two

serious violations. It argues that the Department failed to show that it violated the standards for

spoils piles and shoring requirements and that it knew or could have known of the violations.
Because there is substantial evidence that Pilchuck violated both standards and that it could have

known of the violations with the exercise of reasonable diligence,we affirm the Board.

                                                                                     12-
                                                                   violation. WAC 263-  b).
                                                                                        115( To
                                                                                           2)(
          The   Department has the burden of proving           a




prove a serious violation, the Department must show that

          1) cited standard applies; 2) requirements of the standard were not met;
             the                     ( the
          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."




                                                         rd
43327 3 II
      - -



 E           Inc.
J. . Dunn Nw.,          v.   Dep't of Labor & Indus.,139 Wn. App. 35; 44 45, 156 P. d 250 (2007)
                                                                         -        3

quoting   Wash. Cedar &                 Inc. v. Dep't of Labor & Indus.,
                              Supply Co.,                              119 Wn. App. 906, 914, 83

P. d 1012 (2004)).
 3

       A.       Violation of WAC Standards


       The Board found that the Department proved that Pilchuck failed to meet the

requirements                       655( 0)( WAC 296 -155-
                                   b)
               of both WAC 296 -155-  1   and           a).1)( findings
                                                        657( These

are supported by substantial evidence in the record.

       WAC 296 -155-655( 0)(
                    b) that employees shall be protected from excavated
                       1   states

materials by placing and keeping the materials at least two feet from the edge of excavations or
by using retaining devices sufficient to prevent material from falling or rolling into excavations.
Pilchuck argues that there is not substantial'evidence that the spoils piles were less than two feet
from the edge of the trench. We. disagree.

        The safety officer, Korzenko, testified that the spoils piles were right on the edge of the
excavation. Heaton, the foreman in charge on June 16, testified that he knew the spoils piles
were not two feet from the edge of the trench. Pilchuck asserts that the Finn boards extended
above the    height   of the trench and   provided protection   from the   spoils piles. But, Korzenko

stated that the spoils piles reached higher than the Finn boards in the area where the employees
were   working.       Thus, the boards were not sufficient to protect the employees from falling

material, and there is substantial evidence to support the Board's finding that Pilchuck violated
WAC 296-155-
           b).
           655( 0)(
              1

          There is also substantial evidence to support the Board's finding that Pilchuck did not

meet the shoring requirements. WAC 296 -155-657( )( that employees in an excavation
                                            a) 1 states
shall be protected from cave ins by adequate protective systems designed in accordance with the
                              -
                                                    5
43327 3 II
      - -



manufacturer's tabulated    data. Here, the tabulated data for the hydraulic cylinders Pilchuck

used provided that for trenches over six feet deep, two cylinders were needed in each vertical

plane. Pilchuck agrees that it was using only one cylinder in the trench, but it contends that the
trench was not over six feet deep.

          There is substantial evidence in the record that the trench was over six feet deep.

Korzenko estimated the depth of the area where the employees were working at over eight feet

deep. He based his estimate on the height of the Finn boards, which are eight feet high, and on
the height of a ladder inside the trench. He testified that the spoils piles on the edge of the trench
made it even deeper. Heaton testified that the trench had to be over eight feet deep for the work
they were doing and that a crew member had measured the depth of the trench at eight and a half
feet earlier that day.. Board did not err by concluding that the Department proved violations
                      The
of both WAC 296 -155-
                    b)
                    655( 0)( WAC 296 -155-
                       1 and             a).
                                         657( )(
                                            1

          B.     Employer Knowledge

          Pilchuck next argues that the Board erred by finding that Pilchuck could have known of
the violations. Because there is substantial evidence in the record that the hazards were in plain

view and Pilchuck could have discovered them with reasonable diligence, this argument fails.

          In order to prove a violation, the Department must show that the employer knew or,
through the exercise of reasonable diligence, could have known of the violation. J. . Dunn Nw.,
                                                                                  E
Inc.,139 Wn. App.        at 45. "`Reasonable diligence involves several factors, including an

employer's obligation to inspect the work area, to anticipate hazards to which employees may be
 7 "[
     T] data"is the data that explains the proper use of shoring devises to prevent cave -
      abulated
 ins. CP at 169.

 8
     Korzenko did not actually measure the depth of the trench because he felt that it was unsafe to
 do so.
                                                   6
43327 3 II
      - -




exposed, and       to take   measures   to   prevent the   occurrence. "'   Erection Co.,Inc. v. Dep't ofLabor

  Indus.,160 Wn. App. 194, 206 07, 248 P. d 1085 (2011) quoting Kokosing Constr. Co. v.
                               -        3               (

Occupational Safety & Hazard Review Comm'n, Fed. App'x.
                                          232          510, 512 (6th Cir. 2007)).
                                                                               The

Department may prove constructive knowledge of a violative condition in many ways, including
evidence that the condition was readily observable. Erection Co.,Inc.,160 Wn. App. at 207.

Knowledge or constructive knowledge may be imputed to an employer through a supervisory
agent. New York State Elec. &           Gas Corp. v. Sec'y ofLabor, 88 F.d 98, 105 (2d Cir. 1996).
                                                                        3

        Pilchuck argues that the Board erred because it automatically imputed Heaton's

knowledge to Pilchuck. But the Board did not base its finding on imputed knowledge. Rather, it
stated that Pilchuck knew of the potential for trenching hazards and it could have known of the
actual hazards in this instance through the exercise of reasonable diligence. These statements are

supported by       the record.    There is evidence that Pilchuck was aware of the potential cave in
                                                                                                   -

hazards its employees faced. Pilchuck's safety manager testified that, to protect against cave in
                                                                                                -
hazards, Pilchuck trained employees on safety techniques, provided proper tools for excavating,
held safety meetings, and inspected j obsites for compliance.

        Additionally, there is evidence that the actual hazards were in plain view and that
Pilchuck could have known of them through the exercise of reasonable                     diligence. See Austin

Bldg.   Co.   v.   Occupational Safety & Health Review Comm'n,647 F.d 1063, 1068 (10th Cir.
                                                                   2

 1981) an employee welding in a precarious spot was easily observable and a diligent employer
       (
checking the safety of his workers would have discovered the hazardous conduct). The trench
was in a conspicuous location; Korzenko testified that he could see the jobsite from the road.
 Once he entered the jobsite, it was obvious that the spoils piles were right at the edge of the
 excavation and that the trench was over six feet deepgiven the length of the Finn boards and
                                                      —
                                                              7
43327 3 II
      - -




the ladder and had only one cylinder. Further, Pilchuck had time to discover the violations —
           —

the trench had been open for about two days before Korzenko came to inspect the jobsite.

Because Pilchuck knew of the possible hazards facing its employees and because the hazards

would have been readily apparent if Pilchuck had inspected the jobsite, the Board did not err by

finding that Pilchuck could have known of the violations through the exercise of reasonable
diligence.

III.      UNPREVENTABLE EMPLOYEE MISCONDUCT DEFENSE

          Next, Pilchuck argues that, even if there was substantial evidence to support the

violations, the Board erred by finding that the unpreventable employee misconduct defense did
not    apply    here.      Because Pilchuck did not carry its burden of proving that it took steps to

discover and correct safety violations and that it was effectively enforcing its safety program, we
affirm the Board.


          Under RCW 49. 7. employer may avoid liability for a violation by showing
                    a),
                    120(
                       5 an
                       1 )(

1)a thorough safety program, 2)adequate communication of the program to employees, 3)
                             (                                                     (
steps to discover and correct violations of the safety program,. (4)effective enforcement of
                                                               and
the    safety   program in      practice    and not   just   in   theory. The burden of proving the affirmative

defense is      on   the   employer.   BD   Roofing, Inc. v. Dep't of Labor & Indus.,139 Wn. App. 98, 111,

161 P. d 387 (2007). Here, the Board found that Pilchuck had a thorough safety program in
     3
place and was adequately communicating the program to employees but it was not taking
adequate steps to discover safety violations and was not effectively enforcing its safety program.
          There is substantial evidence that Pilchuck was not taking adequate steps to discover and

correct violations of its         safety    program.     In Legacy Roofing, Inc. v. Department of Labor &
                                                                                     that
Industries, 129 Wn. App. 356, 365, 119 P. d 366 (2005), affirmed the Board's finding
                                        3             we
11-
43327-
     3



the employer's steps to discover and correct safety violations were inadequate because its

inspections were infrequent and employees were not consistently counseled or fined. Similarly,
here, the Board stated that Pilchuck had not shown a sufficient system of safety checks or that its
disciplinary system was clear to workers and strictly enforced. The record supports the finding
that Pilchuck did not have       a   sufficient system of     safety   checks.   The site superintendent who

supervised   the   project   walked off the   job   and   was   not    replaced. The general superintendent,

Marvin LaRue, who was managing three to four other projects at the same time, visited the

jobsite only two to three times per week. Further, the safety manager testified that the discipline
for violations depended on the circumstances, but he did not give any information that would
clarify for workers what type of discipline would accompany certain actions. And, other than the
written warning Heaton received because of the citation at issue here, Pilchuck did not provide
any documentation that it inspected and disciplined employees for rule violation. If employees
do not know what discipline, if any, will result, then the disciplinary process does not provide an
effective tool for preventing violations.

          There is also substantial evidence that Pilchuck was not effectively enforcing its safety

program in practice. As discussed above, Pilchuck did not have frequent safety checks in place
and its   disciplinary system     was   unclear.    The Board also noted that it was unclear who was

responsible for disciplining employees when they violated safety rules.
          There is evidence that Pilchuck was not taking adequate steps to discover violations of its

safety program and was not effectively enforcing its safety program in practice. Therefore, the
Board did not err by finding that Pilchuck failed to carry its burden of proving employee
misconduct.




                                                          E
43327 3 II
      - -



IV.     PENALTY CALCULATION


        Finally, Pilchuck challenges      the    penalty   calculations for the violations.   Specifically, it

argues that the Department did not consider all of the relevant factors when calculating the

probability rate. Because the Department considered all of the factors, the Board did not err by
affirming the Department's penalty calculations.

        We review a penalty calculation to determine whether it was manifestly unreasonable or
based   on   untenable   grounds   or reasons.   Danzer    v.   Dep't of Labor & Indus.,104 Wn.App. 307,

326, 16 P. d 35 (2000).The Department calculates penalties for violations by multiplying the
         3
violation's severity rate a measure of how serious of an injury may resultby its probability
                          —                                               —
rate the likelihood of an injury occurring. WAC 296 -900 -14010. Here, Pilchuck challenges
     —
only the Department's calculation of the probability rate. The Department considers a number of
factors in determining the probability rate: frequency and amount of exposure, number. of
employees exposed, number of times the hazard is found in the workplace, employee proximity
to hazards, working conditions, employee skill level and training, employee awareness of the
hazard, the nature of the work, protective equipment use, and other mitigating or contributing
circumstances.      WAC 296 -900 -14010.          Based on these factors, the Department assigns each

violation a rate from one to six,with six indicating the highest probability of injury.

         Here, Korzenko determined that the probability rate for both violations was three, which
is a low-
        medium probability rate. The Board found that the penalty calculations were reasonable
and correct.


         Pilchuck argues that the Board erred by affirming the Department's probability
calculations because Korzenko failed to lower the probability rate based on the employees'

training, Pilchuck's safety orientations, the presence of a competent person, and the use of
                                                           10
43327 3 II
      - -



shoring. But Korzenko testified that he considered all of those mitigating factors in determining

the probability rate. He also testified that the rate "could have been higher"because of the soil

condition, evidence of a fault line, and inadequate shoring. CP at 187. Therefore, the Board did

not err by finding that the Department reasonably considered all of the factors and reduced the

probability rate accordingly.

       NUMI as


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

Washington Appellate Reports, but will be filed for public record in accordance with RCW

040,
2.6.it is so ordered.
 0


                                                                  jt


We concur:
                                                     Y            ar, J.




       Bj or.; n J.
            g, .




                                                11
