Howard S. Wright Constructors Lp v. Wa State Department Of Labor & Industries

till JUL 10 r,:\ 0- O"

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DEPARTMENT OF LABOR &
INDUSTRIES OF THE STATE OF DIVISION ONE
WASHINGTON,
No. 73943-3-1
Respondent,

v. UNPUBLISHED OPINION

HOWARD S. WRIGHT
CONSTRUCTORS LP,

Appellant. FILED: July 18, 2016

Dwyer, J. — The Department of Labor and Industries cited general

contractor Howard S. Wright for violating a safety regulation enacted pursuant to

the Washington Industrial Safety and Health Act (WISHA), chapter 49.17 RCW,

in overseeing its subcontractor's employees. The Board of Industrial Insurance

Appeals vacated the alleged violation, a decision that the Department herein

disputes. Because we conclude that the Board committed an error of law in its

interpretation of the pertinent regulation and that the Department properly

established its prima facie case for a serious violation, we reverse the Board's

decision.
No. 73943-3-1/2

Howard S. Wright Constructors LP (Wright) is a general contractor

construction company. During 2013, Wright supervised the construction of a

four-story administrative building on behalf of the Experience Music Project

(EMP). Employees of both Wright and its subcontractors worked on the

building's construction.

In March 2013, the Department of Labor and Industries inspected the

EMP work site and found two employees of a subcontractor welding more than

four feet off the ground on a narrow concrete ledge without fall protection. The

ledge was created by a wooden guardrail that Wright's employees placed near

the edge of a concrete surface that comprised the first floor of the building. The

ledge afforded the workers a narrow surface upon which they could stand while

using an arc welder to weld lintels onto the building's side.

As a result of this inspection, the Department issued Wright a citation and

notice of assessment related to its oversight of its own employees, as well as its

subcontractor's employees, on the EMP jobsite. The citation was issued for an

alleged violation ofWISHA safety regulation WAC 296-155-100(1 )(a),1 which
required employers to establish, supervise, and enforce a safe and healthful

working environment or, in the alternative, for an alleged violation of WAC 296-

155-505(5)2 and -505(6),3 which required employers to provide fall protection for

1WAC 296-155-100(1 )(a) (2012) as it existed on March 15, 2013, was repealed effective
April 1, 2013. All citations to former WAC 296-155-100(1 )(a) are to the 2012 version.
2WAC 296-155-505(5) (2012) as it existed on March 15, 2013, was repealed effective
April 1, 2013. All citations to former WAC 296-155-505(5) are to the 2012 version.
3WAC 296-155-505(6) (2012) as it existed on March 15, 2013, was repealed effective
April 1, 2013. All citations to former WAC 296-155-505(6) are to the 2012 version.

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workers to guard against temporary conditions involving wall openings or open-

sided surfaces. The Department designated the alleged violation as a serious

violation.

The citation provided, in pertinent part:

As the controlling contractor, the employer did not establish,
supervise, and enforce, in a manner which was effective in practice
a safe and healthful working environment by allowing 2 employees
of its subcontractor... to be subjected to hazards in violation of the
Washington Administrative Code in the following instance:

The employer did not ensure that a fall protection system was used
on every open-sided floor located four feet or more above adjacent
floors or ground level. The first floor had an open-sided surface
about the ground level exposing three employees to a fall hazard of
approximately 6 feet to compacted dirt below.

Two employees were exposed to a fall hazard of approximately 6
feet, which could potentially result in injuries requiring
hospitalization.

The Department issued a corrective notice of redetermination affirming the

citation in September 2013. Wright thereafter appealed the redetermination to

the Board of Industrial Insurance Appeals. After a hearing, an Industrial Appeals

Judge (IAJ) issued an initial proposed decision and order that vacated the

citation. In its Conclusion of Law 2, the IAJ concluded, "The Department failed to

present a prima facie case that Howard S. Wright Constructors committed a

serious violation of WAC 296-155-100(1 )(a) on March 15, 2013."

The Department petitioned for review of the lAJ's decision, but the Board

affirmed.
No. 73943-3-1/4

The Department appealed to the King County Superior Court, which

reversed the Board's final order and affirmed the Department's corrective notice

of redetermination.

This appeal followed.

II

The Department contends that the Board committed an error of law by

misconstruing the open-sided walking or working surface regulations and further

contends that substantial evidence supports the Department's citation of Wright

for a serious violation of WISHA regulations. We agree with both contentions.

A

We review a decision by the Board directly, based on the record before

the agency. Frank Coluccio Constr. Co. v. Dep't of Labor & Indus.. 181 Wn. App.

25, 35, 329 P.3d 91 (2014).4

We review the Board's interpretation of statutes and regulations de novo.

Prezant Assocs.. Inc. v. Dep't of Labor & Indus., 141 Wn. App. 1, 7, 165 P.3d 12

(2007). 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. RCW 49.17.150(1): Coluccio Constr., 181 Wn.App. at 35. The Board's

findings of fact are conclusive ifsupported by substantial evidence when viewed

in light of the record as a whole. RCW 49.17.150(1); RCW 34.05.570(3)(e); MJd

Mountain Contractors, Inc. v. Dep't of Labor & Indus., 136 Wn.App. 1,4, 146

4Wright, on numerous occasions, argues that the superior court erred in its findings of
fact and conclusions of law. Because we review the record before, and the decisions of, the
Board, Wright's contentions regarding the superior court's actions need not be addressed.
Coluccio Constr., 181 Wn. App. at 35.
No. 73943-3-1/5

P.3d 1212 (2006). Substantial evidence is evidence "in sufficient quantity to

persuade a fair-minded person of the truth of the declared premise." Coluccio

Constr., 181 Wn. App. at 35. Unchallenged findings of fact are verities on

appeal. Coluccio Constr., 181 Wn. App. at 35.

B

The Department asserts that the Board committed an error of law by

construing the regulations governing open-sided walking or working surfaces as

inapplicable to the narrow ledge created by a guardrail's placement near the

edge of a concrete slab. The Department is correct.

As set forth above, "[w]e review the [Board's] interpretation of statutes and

regulations de novo." Prezant Assocs., 141 Wn. App. at 7. "We accord

substantial weight to an agency's interpretation within its area of expertise and

uphold that interpretation if it reflects a plausible construction of the regulation

and is not contrary to legislative intent." Coluccio Constr., 181 Wn. App. at 36
(citing Roller v. Dep't of Labor & Indus., 128 Wn.App. 922, 926-27, 117 P.3d 385

(2005)). "But we retain ultimate responsibility for interpreting a regulation."

Coluccio Constr., 181 Wn. App. at 36 (citing Children's Hosp. & Med. Ctr. v.

Dep't of Health, 95 Wn. App. 858, 864, 975 P.2d 567 (1999)).

Agency regulations are interpreted as if they were statutes. Laser
Underground & Earthworks. Inc. v. Dep't of Labor & Indus., 132 Wn. App. 274,

278, 153 P.3d 197 (2006) "As in statutory interpretation, where a regulation is
clear and unambiguous, words in a regulation are given their plain and ordinary
meaning unless a contrary intent appears." Silverstreak. Inc. v. Dep't of Labor &
No. 73943-3-1/6

Indus., 159 Wn.2d 868, 881, 154 P.3d 891 (2007). "When determining a

statute's plain meaning, we consider 'the ordinary meaning of words, the basic

rules of grammar, and the statutory context to conclude what the legislature has

provided for in the statute and related statutes.'" Darkenwald v. State Emp't

Sec. Dep't, 183 Wn.2d 237, 245, 350 P.3d 647 (2015) (quoting In re Forfeiture of

One 1970 Chevrolet Chevelle, 166 Wn.2d 834, 838-39, 215 P.3d 166 (2009)).

The purpose of WISHA, as explicitly set forth therein, is to "assure, insofar

as may reasonably be possible, safe and healthful working conditions for every

man and woman working in the state of Washington." RCW 49.17.010. Asa

remedial statute, WISHA is liberally construed to carry out its purpose. Prezant

Assocs., 141 Wn. App. at 7-8 (citing Adkins v. Aluminum Co. of Am.. 110 Wn.2d

128, 146, 750 P.2d 1257, 756 P.2d 142 (1988)). Regulations promulgated

pursuant to WISHA are also construed in light of WISHA's stated purpose.5

Prezant Assocs., 141 Wn. App. at 8 (quoting Adkins, 110 Wn.2d at 146).

To effectuate WISHA's purpose, an employer must comply with

corresponding regulations. RCW 49.17.060(2). The pertinent WISHA

regulations establish that "[i]t shall be the responsibility of management to

establish, supervise, and enforce, in a manner which is effective in practice: (a) A

safe and healthful working environment." WAC 296-155-100(1 )(a). This

responsibility includes guarding against temporary conditions "where there is

danger of employees or materials falling . . . from . . . open sided floors, open

5The WAC regulations under which Wright was cited were promulgated pursuant to
WISHA.

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No. 73943-3-1/7

sides of structures ... or other open sided walking or working surfaces."6 WAC

296-155-505(1)7

When the surface at issue is an open-sided walking and working surface,

the employer must guard such a surface with a guardrail or its equivalent to

protect against the danger of falling. A surface is an open-sided surface when it

is an "open sided floor, platform or surface four feet or more above adjacent floor

or ground level." WAC 296-155-505(6)(a).8 A surface is a walking or working

surface when it is an "area whose dimensions are forty-five inches or greater in

all directions, through which workers pass or conduct work." WAC 296-155-

24503.9

The Board's Decision and Order concluded that the Department failed to

present a prima facie case of a violation of WAC 296-155-100(1 )(a). The Board's

Finding of Fact 2 stated that the placement of a guardrail established a new

surface "so that the area between the guardrail and the edge was less than 45

inches wide." From this, in its Conclusion of Law 2, the Board concluded that

6Wrightargues that the Department failed to establish that fall protection was required,
stating that WAC 296-155-24510, a fall protection regulation for heights greater than ten feet,
exclusively governs fall protection under WISHA and the employees did not work at heights
greater than ten feet. We disagree. WAC 296-155-24510 is not the sole provision mandating fall
protection be provided to employees. Indeed, this argument ignores both WAC 296-155-505(1)
("This part applies to temporary . . . conditions where there is danger of employees or materials
falling.") and WAC 296-155-505(6)(a) ("Every open sided floor, platform or surface . . . shall be
guarded by a standard railing, or the equivalent, ... on all open sides."). WAC 296-155-24510
(2012) as it existed on March 15, 2013, was repealed effective April 1, 2013. All citations to
former WAC 296-155-24510 are to the 2012 version.
7WAC 296-155-505(1 )(a) (2012) as it existed on March 15, 2013, was repealed effective
April 1, 2013. All citations to former WAC 296-155-100(1 )(a) are to the 2012 version.
8 The full text of WAC 296-155-505(6)(a) provided: "Guarding of open sided surfaces, (a)
Every open sided floor, platform or surface four feet or more above adjacent floor or ground level
shall be guarded by a standard railing, or the equivalent, as specified in subsection (7)(a) of this
section, on all open sides . . . ."
9WAC 296-155-24503 (2012) as it existed on March 15, 2013, was repealed effective
April 1, 2013. All citations to former WAC 296-155-24503 are to the 2012 version.
No. 73943-3-1/8

"[t]he Department failed to present a prima facie case that Howard S. Wright

Constructors committed a serious violation of WAC 296-155-100(1 )(a)." In

reaching this conclusion, the Board committed an error of law.

First, the ordinary meaning of WAC 296-155-100(1 )(a) and, by implication,

WAC 296-155-24503, cannot be construed to support the Board's interpretation.

The Board's interpretation erroneously assumes that the text of the safety

regulation permitted a guardrail to establish new dimensions for measuring an

open-sided walking or working surface. However, such language is

conspicuously absent from the regulation.

Indeed, the defining elements of a walking or working surface under WAC

296-155-24503 are those that are plainly stated in the WAC itself, and it has long

been understood that "it is safer always not to add to, or subtract from, the

language of the statute unless imperatively required to make it a rational statute."

McKay v. Dep't of Labor & Indus., 180 Wash. 191, 194, 39 P.2d 997 (1934);

accord Cobra Roofing Serv.. Inc. v. Dep't of Labor & Indus., 122 Wn. App. 402,

417, 97 P.3d 17 (2004) ("We will not add language to an unambiguous statute."),

aff'd, 157 P.2d 90, 135 P.3d 913 (2006). We see no occasion to add language to

the already rational safety regulations herein at issue.10

Furthermore, the Board's interpretation runs contrary to WISHA's statutory

context, namely, WISHA's stated purpose to assure "safe and healthful working

10 Wright, citing to the discussion section of the Board's Decision and Order, argues that
the guardrail "changed the nature of the surface" from a "walking/working" surface to one that
does not require fall protection. However, the phrase "changed the nature of the surface" does
not appear in the text of the applicable regulations and we decline Wright's invitation to add such
language and thereby facilitate a result inconsistent with WISHA's purpose.
No. 73943-3-1/9

conditions for every man and woman working in the state of Washington." RCW

49.17.010. If it were otherwise, employers would be allowed to place a guardrail

by the edge of an elevated working surface and, in effect, provide employees

working on a narrow ledge less safe working conditions than all other employees

working and walking on the other side of the guardrail. Such a reading is directly

contrary to WISHA's purpose.

Lastly, WISHA, as a remedial statute directed toward worker safety, must

be construed to achieve its purpose. Adkins. 110 Wn.2d at 146. Because the

Board's interpretation leaves workers less safe, it constitutes a misconstruction of

the regulation.

Accordingly, the Board erred in reaching its Conclusion of Law 2 by

construing the underlying WISHA regulation in a manner contrary to its plain

meaning and its purpose.

C

The Department next contends that, considered under the proper legal

framework, substantial evidence supports its citation of Wright for a serious

violation. We agree.

Under WISHA, an employer's duty is twofold. Goucherv. J.R. Simplot

Co., 104 Wn.2d 662, 671, 709 P.2d 774 (1985). These duties are enumerated in

RCW 49.17.060, which contains both a general duty clause and a specific duty

clause. J.E. Dunn Nw.. Inc. v. Dep't of Labor & Indus., 139 Wn. App. 35, 43, 156

P.3d 250 (2007). "The general duty clause obligates employers to 'furnish to

each of his employees a place of employment free from recognized hazards that
No. 73943-3-1/10

are causing or likely to cause serious injury or death to his employees."' J.E.

Dunn, 139 Wn. App. at 43-44 (quoting RCW 49.17.060(1)). "The specific duty

clause obligates employers to 'comply with the rules, regulations, and orders

promulgated under [WISHA].'" J.E. Dunn, 139 Wn. App. at 44 (quoting RCW

49.17.060(2)).

In addition to the general and specific duties under WISHA and its

regulations, "RCW 49.17.180(2) mandates the assessment of a penalty against

an employer when a proven violation is 'serious.'" J.E. Dunn. 139 Wn. App. at

44. A "serious" violation of a WISHA regulation is defined as follows:

[A] serious violation shall be deemed to exist in a workplace 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 alleging a violation of WISHA regulations against an employer, the

Department bears the initial burden of proving the existence of that violation.
WAC 263-12-115(2)(b); J.E. Dunn, 139 Wn. App. at 44. When an alleged

violation is designated "serious," the Department bears the burden of proving not
only the existence of the elements of the violation itself, but also the existence of
those additional elements of a "serious" violation enumerated in RCW

49.17.180(6). J.E. Dunn, 139 Wn. App. at 44 (citing SuoerValu. Inc. v. Dep't of
Labor & Indus.. 158 Wn.2d 422, 433 n.7, 144 P.3d 1160 (2006V. Wash. Cedar &

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No. 73943-3-1/11

Supply Co. v. Dep't of Labor & Indus.. 119 Wn. App. 906, 914, 83 P.3d 1012

(2004)).

Accordingly, to establish its prima facie case in regard to a serious

violation of a WISHA regulation, the Department must prove each of the following

elements:

"(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."

Wash. Cedar, 119 Wn. App. at 914 (quoting D.A. Collins Constr. Co. v. Sec'v of

Labor. 117 F.3d 691, 694 (2nd Cir. 1997)).

The parties' contentions herein are regarding elements (1) and (5). We

address each in turn below.

i

The Department first asserts that the cited standard applies to the alleged

violation. As discussed above, the WISHA safety regulation cited by the

Department created an overarching duty that required that employers establish a

"safe and healthful working environment." WAC 296-155-100(1 )(a). This duty

extended to providing fall protection in the form of a guardrail or its equivalent in

working environments with temporary conditions such as open-sided walking or

working surfaces more than four feet off the ground with dimensions greater than

forty-five inches in all dimensions.11 See WAC 296-155-505(1), -505(6)(a), -

11 Wright asserts that it was not feasible to erect a second guardrail. The employer
carries the burden to prove the affirmative defense of infeasibility. Coluccio Constr., 181 Wn.
App. at 37. Because this argument is not supported by any reference to the record or citation to

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24503. Further, as construed herein, WAC 296-155-505(6)(a) and -24503 do not

permit an interpretation that allows a guardrail adjacent to an open-sided walking

or working surface to impact the Department's measurement of the underlying

surface's dimensions.

The Board's Finding of Fact 2 stated:

The surface where [the subcontractor's employees] were working
was more than four feet off the ground, and no fall protection
system was installed. The surface was part of a larger area that
was more than 45 inches in all dimensions, but a guardrail had
been placed parallel to the edge, so that the area between the
guardrail and the edge was less than 45 inches wide.

Considering the proper construction of WAC 296-155-24503 and the

Board's Finding of Fact 2, it is evident that the WAC regulations cited by the

Department apply here. Accordingly, the Department proved the first element of

its prima facie case.12

ii

The Department next asserts that the Board erred by concluding that the

violation did not constitute a serious violation. To constitute a serious violation,

there must be "a substantial probability that death or serious physical harm could

result" from that violation. RCW 49.17.180; Mowat Constr. Co. v. Dep't of Labor

authority, we do not consider it. Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809,
828 P.2d 549 (1992).
12 Wright contends that the Department failed to establish that the surfaceat issue was a
walking orworking surface, arguing that "the undisputed testimony" demonstrates that the
workers "were not walking to pass from one portion of the building to another" and that, instead,
the workers were welding on the outside of the guardrail. This argument misconstrues the
pertinent regulation and misstates the record. WAC 296-155-24503 establishes a walking or
working surface as one "through which workers pass or conduct work." (Emphasis added.)
Because this element of the regulation is framed in the disjunctive, the Department must show
that workers either passed through the surface orconducted work on the surface. Here, the
Department satisfied both, demonstrating that workers passed through and conducted work on
the surface at issue.

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No. 73943-3-1/13

& Indus.. 148 Wn. App. 920, 932, 201 P.3d 407 (2009). "'[Substantial

probability' does not refer to the probability that harm will occur on a particular

work site. Instead, what it refers to is 'the likelihood that, should harm result from

the violation, that harm could be death or serious physical harm.'" Mowat

Constr.. 148 Wn. App. at 932 (quoting Lee Cook Trucking & Logging v. Dep't of

Labor& Indus.. 109 Wn. App. 471, 482, 36 P.3d 558 (2001)). The harm resulting

from a risk of falling may constitute the basis for a serious violation under

WISHA. See, e.g.. Wash. Cedar. 119 Wn. App. at 916-17 (holding that testimony

indicating that a fall could result in "broken or sprained limbs and temporary

hospitalization" satisfies the requirement for a serious injury).

In its Conclusion of Law 2, the Board stated that the Department failed to

establish that the underlying violation was a serious violation of the WISHA

safety regulations. This is so, the Board found, because "[n]o substantial
probability existed that the [subcontractor's] employees exposed to the risk of
falling . . . would be injured" and, alternatively, if harm resulted, "[n]o substantial
probability existed . . . that it would be serious physical harm." Because the
Board misapplied the law to the first half of this finding offact and because the
Board's alternative finding was not supported by substantial evidence, its

conclusion is in error.

With regard to the first half of the finding, as stated above, the proper

inquiry is not into the probability that harm will occur but, rather, into the
likelihood that the magnitude of any resulting harm "could be death or serious

physical harm." Lee Cook, 109 Wn. App. at 482.

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No. 73943-3-1/14

With regard to the second half of the finding, the Board's evaluation goes

against the weight of the record. Indeed, a substantial probability existed that

serious physical harm could result from Wright's failure to provide adequate fall

protection to its subcontractor's employees. Here, the Department established

that the workers were welding using arc welders—an activity that presents its

own degree of risk—on a one-foot-wide ledge, that the workers were subjected to

a potential fall from five feet to seven feet, and that, should they fall, the workers

could sustain broken bones and require hospitalization. Accordingly, the

Department demonstrated that the violative condition created by Wright

presented a substantial probability of serious physical injury to its subcontracting

employees.

Thus, the Department established a prima facie case of a serious violation

of a WISHA regulation.13

Ill

On appeal, Wright argues that it did not owe a duty to provide a safe and

healthful working environment for the subcontractor's employees here at issue.

Wright's contention fails.

"RCW 49.17.060(2) imposes on general contractors a nondelegable

specific duty to ensure WISHA compliance for the protection of all employees on

13 Wright asserts that the Departmentfailed to demonstrate that it did not provide a safe
and healthful working environmentto its subcontractor's employees, referencing the adequacy of
Wright's safety manual, safety orientation, written safety plans, disciplinary program, and hourly
safety inspections. Nonetheless, because the Department demonstrated that Wright failed to
provide fall protection to the subcontractor's employees on the surface here at issue, the
Department met its burden of demonstrating Wright's failure to provide a safe and healthful
working environment.

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No. 73943-3-1/15

thejobsite." Neil v. NWCC Invs. V. LLC. 155 Wn. App. 119, 125-26, 229 P.3d

837 (2010) (emphasis added) (citing Stute v. P.B.M.C. Inc.. 114 Wn.2d 454,

463-64, 788 P.2d 545 (1990)); accord J.E. Dunn, 139 Wn. App. at 48 ("[T]he

general contractor at a construction site has a duty to comply with WISHA

regulations in regard to its oversight of all employees on the site, not just its own

employees."). "The Stute court imposed the per se liability as a matter of policy."

Kamla v. Space Needle Corp.. 147 Wn.2d 114, 122, 52 P.3d 472 (2002). This

per se liability follows from the general contractor's per se control over the

workplace. Stute. 114 Wn.2d at 464.

Because Wright was the supervising general contractor on the EMP

jobsite, it was required to comply with WISHA regulations as to all employees on

its jobsite, not just its own employees.14 Accordingly, Wright owed a duty to the

subcontractor's employees who were found working on the unguarded space that

was the subject of the underlying violation. It did not comply with its duty.

IV

The Board erred by misconstruing pertinent WISHA safety regulations and

by concluding that the Department did not establish its prima facie case to

support a serious violation citation against Wright. Accordingly, we affirm the

superior court, and reverse the Board's decision.

14 Wright further asserts that itowed no duty to the subcontractors on the work site,
arguing that it did not retain control over the jobsite or, alternatively, that the surface in question
was not a common work area. Both assertions fail. Wright's argument regarding its control of the
jobsite conflates the standard applicable to matters that involve jobsite owners with matters that
involve jobsite generalcontractors. Although the person or entity owning the jobsite is not
necessarily always liable forWISHA violations, general contractors do have a duty to comply with
WISHA regulations. Afoa v. Port of Seattle, 176 Wn.2d 460, 471, 296 P.3d 800 (2013); accord
Stute. 114Wn.2dat464.

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No. 73943-3-1/16

Affirmed.

We conciur:

y_o, iUiLflj&v.

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