IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 POTELCO INC.,
                                                   No. 78433-1-1
                      Appellant,
                                                   DIVISION ONE
               V.
                                                   UNPUBLISHED OPINION
 WASHINGTON STATE,
 DEPARTMENT OF LABOR AND
 INDUSTRIES,

                      Respondent.                  FILED: June 10, 2019


       APPELWICK, C.J. — The Department cited Potelco for failing to ensure that
a crane was certified and proof load tested. The Board of Industrial Insurance

Appeals and the trial court affirmed the citation. Potelco argues that WAC 296-

155-52901 does not apply because it reasonably believed it was operating a digger

derrick and not a crane, and it was not performing "construction work" as statutorily

defined. It argues alternatively that this court should downgrade the violation from

general to de minimis. We affirm. ,

                                      FACTS

       In November 2015, Potelco Inc., a utility contractor, was performing utility

maintenance work on an existing utility line on NE 116th Street in Bellevue. On

November 6, Ronald Solheim, a crane safety supervisor with the Department of

Labor and Industries (Department), drove by the worksite on his way to work.

Solheim noticed some peculiarities with the equipment the workers were using.
No. 78433-1-1/2


He notified Potelco that he was going to visit the jobsite for an inspection the

following morning.

      Solheim went to the site the next day and photographed the equipment'

Potelco had been using the day before. A company called Elliott Equipment

Company manufactured the equipment, and its model number was 30105. The

equipment had a nylon hoist line at its base, which Solheim testified was "very

unusual on this type of crane."

      Potelco line crew foreman Dean Davis was present at the jobsite when

Solheim did his inspection. Davis testified that he believed the equipment that

Potelco was using was a digger derrick, not a crane.

      Of his inspection, Solheim stated,

      [W]hat caught my attention was that yellow hoist rope or hoist line. I
      wanted to see exactly what it was because I'd only heard of one other
      mobile boom truck in the entire industry that had been approved to
      use the nylon type line for hoisting and that was manufactured by
      Grove.
      Solheim also photographed the manufacturer's plate, which was attached

to the base of the boom near the operator station. This plate identifies the

machine's serial number, load charts, manufacture date, whether it has an

insulating boom, and the standard under which it was manufactured. Solheim

testified that the Elliott 30105 complied with the ANSI/ASME-B30.5 standard.2

ASME B-30.5 is a national standard that applies specifically to all mobile cranes.



       I The Department refers to the equipment as a "crane," while Potelco refers
to the same piece of equipment as "equipment," "vehicle" or "digger derrick."
       21'ASME" is an acronym for the American Society of Mechanical Engineers.
"ANSI" is an acronym for American National Standards Institute.

                                           2
No. 78433-1-1/3


Solheim testified that all of the digger derricks that he has seen have been

manufactured under a different standard. Solheim also testified that the load chart

attached to the operation station for the equipment indicated that it met the ASME

B30.5 requirements. He stated that if the crane had been manufactured under the

digger derrick standard, the load chart "would definitely be different."

       Describing how the piece of equipment that he inspected differed from a

digger derrick, Solheim stated,

       [I]t doesn't have the right number, D115, on the boom or on the load
       charts. [A digger derrick] has a different size hoist line on the load
       chart than the one that 1 inspected. And so the [Load Moment
       Indicator (LMI)] would be -- information being put out by the LMI
       would be definitely different and require some modification to the
       computer, possibly.

            The outriggers on a Digger Derrick are allowed to be extended
       at three different positions which changes the load charts. The one
       [I inspected] is not allowed to be at three different positions.

Solheim further explained that the different standards under which the two

products are manufactured is a "definite indication in determining whether it's a

Digger Derrick." Solheim testified that Potelco had both digger derricks and cranes

in their fleet.

        Based on his investigation, Solheim determined that the Elliott 30105 was

a "mobile crane with attachments," and not a digger derrick. Solheim testified that

he asked Potelco for documents establishing that the equipment in question was

a digger derrick as they claimed, but never received that information. Following

Solheim's inspection, the Department cited Potelco for failing to ensure the Elliott

30105 was certified and proof load tested, as required by WAC 296-155-52901.



                                              3
No. 78433-1-1/4


       Potelco appealed the citation. Potelco argued that WAC 296-155-52901

did not apply because (1) it was performing "utility work," and not "construction

work," and (2) it reasonably believed it was operating a digger derrick and not a

crane. In a proposed decision and order, the Board of Industrial Insurance Appeals

(Board) rejected Potelco's argument that it was not engaged in construction work.

But, it concluded that Potelco, through exercising reasonable diligence, could not

have known that the equipment was a crane subject to WAC 296-155-52901, and

vacated the citation.

       The Department petitioned for review of the proposed order. The Board

found that Potelco's work replacing utility poles was "construction," as statutorily

defined. The Board also found the equipment Potelco used was a crane as defined

by WAC 296-155-52902. Finally, the Board found that Potelco, through exercising

reasonable diligence, could have known that the Elliott 30105 was a crane. The

Board affirmed the citation. Potelco appealed the Board's decision and order to

the superior court, which also affirmed. Potelco appeals.

                                  DISCUSSION

       Potelco makes three arguments. First, it argues that, because it reasonably

believed it was operating a digger derrick and not a crane, WAC 296-155-52901

does not apply. Second, it argues that, because Potelco was not performing

"construction work" as statutorily defined, this court should vacate the citation.

Third, it argues alternatively that this court should downgrade the violation from

general to de minimis.




                                            4
No. 78433-1-1/5


  I.   Standard of Review

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

before the agency. Pilchuck Contractors, Inc. v. Dep't of Labor & Indus., 170 Wn.

App. 514, 517, 286 P.3d 383 (2012). We review findings of fact to determine

whether they are supported by substantial evidence and, if so, whether the findings

support the conclusions of law. Id. Substantial evidence is evidence in sufficient

quantum to persuade a fair-minded person of the truth of the declared premise.

Id. We review questions of law de novo, including an agency's construction of a

regulation, but substantial weight is given to an agency's interpretation of a

regulation. Id. Proposed decisions and orders are not the decisions and orders of

the Board—they do not become the official Board decision until the Board formally

adopts them. Stratton v. Dep't of Labor & Indus., 1 Wn. App. 77, 79,459 P.2d 651

(1969).

 II.   Type of Equipment

       Potelco asserts first that it reasonably believed it was operating a digger

derrick and not a crane, and, therefore, WAC 296-155-52901 does not apply.

       All cranes and derricks covered in WAC 296-155-52900 and not exempt in

subsection (3) of that section must be certified and proof load tested annually by

an accredited crane certifier recognized by the Department. WAC 296-155-52901.

The crane statutes and regulations define "crane" as "power-operated equipment

used in construction that can hoist, lower, and horizontally move a suspended

load." RCW 49.17.400(5); WAC 296-155-52902.




                                            5
No. 78433-1-1/6


       The Board found that the Elliot 30105 was a mobile crane.3 Potelco asserts

that the "equipment at issue has all of the characteristics of a digger derrick, and

the evidence presented would lead a rational, fair-minded person to find that

Potelco reasonably believed it was operating a digger derrick." It claims that it

ordered a digger derrick, was told that it had received a digger derrick, and

"operated the equipment only as a digger derrick." And, Potelco contends that,

other than the data plate, nothing suggested that the equipment was anything other

than a digger derrick.

       Citing Erection Co., Inc. v. Department of Labor and Industries, 160 Wn.

App. 194, 248 P.3d 1085(2011), Potelco asserts that the Department fails to show

how Potelco did not exercise reasonable diligence. In Erection Co., the court

stated,

              "Reasonable diligence involves several factors, including an
       employer's obligation to inspect the work area, to anticipate hazards
       to which employees may be exposed, and to take measures to
       prevent the occurrence." Constructive knowledge of a violative
       condition may be demonstrated by the department in a number of
       ways, including evidence showing that the violative condition was
       readily observable or in a conspicuous location in the area of the
       employer's crews.

160 Wn. App. at 206-07 (citations omitted) (quoting Kokosing Constr. Co. v.

Occupational Safety & Hazard Review Comm'n, 232 F. App'x 510, 521, 2007 WL

1544150, at *2)(6th Cir. 2007)).



        3 Potelco assigns error to the trial court's adoption of the Board's finding that
the equipment was a crane, but does not argue this issue in its brief. This court
will not consider an assignment of error where there is no argument in the brief to
support it. DeHeer v. Seattle Post-Intelligencer, 60 Wn.2d 122, 126, 372 P.2d 193
(1962).

                                               6
No. 78433-1-1/7


      The Board found that Potelco, through exercising reasonable diligence,

could have known that the equipment was in fact a crane that was not certified

prior to being used in 'crane operations. The Elliott 30105's load chart stated that

the equipment was a crane. The data plate and load chart both showed that the

Elliott 30105 complied with the ASME B-30.5 standard, which applies specifically

to all mobile cranes, but not digger derricks. Elliott's company website identified

the 30105 model as a "boom truck," which is a mobile crane.

       Furthermore, when Potelco first received the Elliott 30105, it had a metal

wire hoist line. The wire line was then switched to a nylon one at Potelco's request.

Both Potelco's fleet manager and foreperson understood that companies use

digger derricks to conduct high voltage work because they "generally have nylon

ropes for winch lines, whereas cranes have steel winch lines."

       Potelco points to its employee's testimony to argue that it reasonably

believed that the equipment was a digger derrick. It argues that "the truck had all

of the unique characteristics of a digger derrick, such as an auger, the nylon hoist

line, and pole claw attachment." But, we do not reweigh the evidence on appeal.

Zarala v. Twin City Foods, 185 Wn. App. 838, 867, 343 P.3d 761 (2015). Instead,

we view this evidence in the light most favorable to the party that prevailed before

the Board—here, the Department. Frank Coluccio Constr. Co. v. Dep't of Labor &

Indus., 181 Wn. App. 25, 35, 329 P.3d 91 (2014).

       Substantial evidence supports the Board's finding that Potelco, through

exercising reasonable diligence, could have known that the equipment was in fact

a crane and not a digger derrick.


                                             7
No. 78433-1-1/8


 III.    Construction Work

         Potelco argues second that, because it was performing utility work and not

construction work, WAC 296-155-52901 does not apply.

         The Washington Industrial Safety and Health Act of 1973(WISHA), chapter

49.17 RCW, certification rule applies to "[p]ower-operated cranes and derricks

used in construction that can hoist, lower and horizontally move a suspended

load."       WAC 296-155-52900(1)(a) (emphasis added).         WAC 296-155-52902

defines "construction work" as,

         [A]ll or any part of excavation, construction, erection, alteration,
         repair, demolition, and dismantling of buildings and other structures
         and all related operations; the excavation, construction, alteration,
         and repair of sewers, trenches, caissons, conduits, pipelines, roads,
         and all related operations; the moving of buildings and other
         structures, and the construction, alteration, repair, or removal of
         wharfs, docks, bridges, culverts, trestles, piers, abutments, or any
         other related construction, alteration, repair, or removal work.
         Construction work does not include the normal day-to-day activities
         at manufacturing facilities or powerhouses.

         Potelco states that on November 6 and 7, 2015, it was replacing existing

poles to raise power lines. It argues that this work does not qualify as construction

work. And, it asserts that the work it was performing is more similar to the activities

covered under WAC 296-155-52900(4)(t), which provides an exemption from the

crane certification requirements for "[d]igger derricks when used for activities that

are covered under chapter 296-45 WAC,[4]Safety standards for electrical workers."




         WAC 296-45 applies to "the operation, maintenance, and construction of
         4
electric power generation, control, transformation, transmission, and distribution
lines and equipment." WAC 296-45-015(1).

                                              8
No. 78433-1-1/9


       The Board found that Potelco's work replacing existing utility poles

constitutes construction as defined by the WAC. Potelco ultimately argues that it

was exempt from the certification and load testing requirements because it

"reasonably believed" that it was using a digger derrick for activities covered by

WAC 296-45, which applies to safety standards for electrical workers. But, this

exception does not apply to cranes:"Cranes other than digger derricks when used

for activities that are covered under chapter 296-45 WAC, Safety standards for

electrical   workers,   or    chapter   296-32   WAC,     Safety    standards    for

telecommunications are NOT exempt." WAC 296-155-52900(4)(t). We found

above that substantial evidence supports the Board's finding that the Elliott 30105

was a mobile crane. Thus, we do not reach the issue of whether Potelco was

performing construction work, because it would not be exemptfrom WAC 296-155-

52900 regardless.

 IV.   Violation Classification

       Alternatively, Potelco argues that this court should downgrade the violation

from general to de minimis.

       There are several classifications of WISHA citations: willful, serious,

general, and de minimis. See RCW 49.17.180(1)-(3); WAC 296-900-14010.

Under RCW 49.17.180(3),

       Any employer who has received a citation for a violation . . . where
       such violation is specifically determined not to be of a serious nature
       as provided in subsection (6) of this section, may be assessed a civil
       penalty not to exceed seven thousand dollars for each such violation,
       unless such violation is determined to be de minimis.




                                             9
No. 78433-1-1/10


       WAC 296-900-14010 provides that a general violation occurs where there

are "[c]onditions that could cause injury or illness to an employee but would not

result in serious physical harm." Under RCW 49.17.120(2), the Department may

develop procedures under which it will issue "a notice in lieu of a citation with

respect to de minimis violations which have no direct or immediate relationship to

safety or health."

       Potelco asserts that "there were no injuries, accidents, or incidents involved

in this inspection." But, actual injury is not required for the Department to cite an

employer. See, e.q., Mowat Constr. Co. v. Dep't of Labor & Indus., 148 Wn. App.

920, 931, 201 P.3d 407 (2009) ("Nor is the Department required to wait for

someone to go deaf before citing the employer.").

      "The legislature intend[ed] to promote the safe condition and operation of

cranes used in construction work by establishing certification requirements for

construction cranes and qualifications for construction crane operators." RCW

49.17.400; LAWS OF 2007, ch. 27, § 1.          Potelco's argument that the crane

certification violation has no direct relationship to employee health and safety fails.

       We affirm.




WE CONCUR:
                                           6 ge-4ee'; evci
     r d.a-iti g_C-1..



                                             10
