Halme Construction, Inc. v. Dep't of Labor & Industries

FILED
FEBRUARY 15, 2022
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

HALME CONSTRUCTION, INC., )
) No. 38062-9-III
Respondent, )
)
v. )
)
WASHINGTON DEPARTMENT OF ) UNPUBLISHED OPINION
LABOR & INDUSTRIES, )
)
Appellant. )

SIDDOWAY, J. — The Department of Labor and Industries (Department) appeals a

superior court order reversing a decision of the Board of Industrial Insurance Appeals

(Board). Relying on a Department compliance officer’s testimony about the excessive

steepness of excavation sloping he observed at a Halme Construction, Inc. worksite and

related photographs, the Board had affirmed Halme’s citation for failing to protect

employees from possible cave-ins.
No. 38062-9-III
Halme Constr. v. Dep’t of Labor & Indus.

Halme asks us to reassess credibility, reweigh evidence, and accept its argument

that the Department’s failure to perform a simple and safe measurement and calculation

renders other evidence insubstantial. We disagree, reverse the trial court, and reinstate

the citation.

FACTS AND PROCEDURAL HISTORY

On July 16, 2018, Halme Construction, Inc. was conducting a trenching operation

for the purpose of installing piping in downtown Spokane. The Department received a

referral from the attorney general’s office about Halme’s activities. The referral included

video of the work site that depicted a trench and an individual moving a grade stick from

within the trench. Halme later stipulated that one of its employees, Joey Gonzalez, was

working in the trench at the time.

Upon receiving the referral, the Department sent Creston Grant, a compliance

safety and health officer, to inspect. Although Mr. Grant testified that the Department

received the referral at 11:02 a.m. and he had arrived at the site by 12:25 p.m., Halme

employees would later testify that by the time of Mr. Grant’s arrival, they had

commenced a backfill operation. No employees were in the trench when Mr. Grant

arrived.

During his site visit, Mr. Grant spoke with project superintendent Dwight

Heidegger and two other Halme employees. He also conducted a walk-around inspection

of the site that he estimated took about an hour. He took over two dozen photographs.

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Chapter 296-155 of the Washington Administrative Code (WAC) provides safety

standards for construction work. Part N of the chapter, WAC 296-155-650 through

-66411, deals with excavation, trenching and shoring. Except in circumstances not

present here, WAC 296-155-657(1)(a)1 provides that employers must “protect each

employee in an excavation from cave-ins by an adequate protective system.” The

protective system must be designed in accordance with the Part N regulations and

appendices. Appendix A, which can be found at WAC 296-155-66401, provides a

system under which the soil being excavated must be classified. It is undisputed that the

type of soil in the area of the Halme’s trench was type C soil, which is a “less cohesive

soil . . . more granule, [and] similar to a sand.” Administrative Record (AR) at 147;

WAC 296-155-66401(2) (defining type C soil). Appendix B, which can be found at

WAC 296-155-66403, contains the specifications for required sloping and benching

protective systems, depending on the classification of the soil.

Halme was relying on a trench box and sloping as its protective system for the

trenching operation. When a trench box is used as a protective system, its sides must

extend to a height at least 18 inches above the top of the vertical side of the excavation

(freeboard). E.g., Figure N-12, WAC 296-155-66403. The slopes above freeboard must

1
The regulation does not apply if the excavation is made entirely in stable rock, or
in excavations of less than four feet in depth where an “examination of the ground by a
competent person provides no indication of a potential cave-in.” WAC 296-155-
657(1)(a)(i), (ii).

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be equal to or less steep than the maximum allowable slope for the soil, which, in the

case of type C soil, is 1½ : 1; in other words, the slopes must cover one and a half feet of

horizontal distance for every foot of vertical rise. This is approximately a 34-degree

angle. The regulatory diagram for this type of protective system in type C soil is

provided by figure N-12 of appendix B:

Mr. Grant cited Halme for four violations following his site visit. The first,

citation item 1-1, was for violating the requirement to have an adequate protective system

in place; he found the slopes to be steeper than the maximum permitted. Another,

citation item 1-4, was that Halme did not have a competent person at the work site

conducting daily inspections of its protective systems. Two others, citation items 1-2 and

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1-3, were that Halme did not have a safe means of access and egress to its trench, and that

materials (spoils piles) were placed at the edge of the excavation, rather than two feet

back as required.

Halme informally challenged all the citations. It pointed out with respect to

citation items 1-2 and 1-3 that by the time Mr. Grant arrived at the work site, its

employees had begun a backfill operation. As a result, it had removed ladders and no

employee was in the trench. Based on that information, the Department reassumed

jurisdiction and issued a corrective notice that vacated those two citations. The

Department affirmed citations for items 1-1 and 1-4, concluding that the elements

necessary to establish those violations had been documented and supported.

Formal appeal, hearing, and proposed decision of the IAJ

Halme again appealed, and a hearing was conducted before an industrial appeals

judge (IAJ). The Department called as its sole witness Mr. Grant, and Halme called as its

sole witness Mr. Heidegger. Three exhibits were admitted. Exhibit 1 consisted of 27

color photographs taken of the work site during Mr. Grant’s site visit. Exhibit 2

consisted of 13 still pictures obtained from the video provided by the attorney general’s

office. Exhibit 3 reproduced several excavation configurations from appendix B,

including figure N-12, which we reproduce above.

Mr. Grant admitted during the hearing that the citation for not having a competent

person present daily might have been based on his misunderstanding of something Mr.

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Halme Constr. v. Dep’t of Labor & Indus.

Heidegger said to him during the site visit. Mr. Heidegger testified he had been

misunderstood, and that Halme was aware of and had complied with the requirement to

have a competent person present daily. The IAJ accepted Halme’s evidence and vacated

that citation. She affirmed the citation for a serious violation of WAC 296-155-

657(1)(a), with a penalty of $1,800.

Board review and decision

Halme appealed the IAJ’s decision to the Board. While the Board agreed with the

IAJ’s ultimate conclusions, it granted review because it found her findings to be

insufficient. It affirmed the citation of item 1-4 as modified.

The Board’s final decision and order observed that it was uncontested that the

Halme excavation was not made in stable rock and that the trench was more than 4 feet in

depth. It observed that no evidence conflicted with Mr. Grant’s assessment that the soil

was type C.

Mr. Grant’s testimony at the hearing before the IAJ was that the trench was 14

feet, 8 inches deep, based on the setting on a grade stick he had observed lying near the

trench. Mr. Grant testified that he had not taken measurements of his own because, “as a

safety inspector, I cannot put myself in a position where I would be exposed to the same

potential hazards that the employee would be exposed to.” AR at 115.

Halme challenged Mr. Grant’s inference from the grade stick during the hearing,

and in cross-examination, Mr. Grant conceded that the grade stick setting might have to

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Halme Constr. v. Dep’t of Labor & Indus.

be adjusted for the elevation of the laser it was set to detect. Halme offered no evidence

of the depth of the trench.

On the matter of the trench’s depth, the Board’s decision observed:

While the precise depth of the trench was not measured, the
numerous photographic exhibits clearly establish that the trench was close
to the 14 plus feet indicated by Mr. Grant. Halme had placed a trench
shoring box in the trench. The trench shoring box was, itself, 8 feet deep.
The distance between the street surface, as shown in the photographic
exhibits, and the top of the trench shoring box is very nearly that much
distance again.

Clerk’s Papers (CP) at 3.

The Board found that “[g]iven the depth of the trench and the soil type, employees

working inside the trench shoring box were at risk to be engulfed by unstable soil

sloughing or caving into the trench shoring box from the surrounding higher portions of

the excavation. Under these conditions Halme was required to provide additional safety

measures to protect its workers.” Id.

The Board noted that Mr. Grant had testified that the higher sides of the

excavation did not meet the amount of slope required by the Department’s regulations. It

described the following photograph—the first photograph in exhibit 1, AR at 161,—as

“giv[ing] credibility to Mr. Grant’s conclusion that the excavation was not properly

sloped to a ratio of one and a half to one.” Id.

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The Board also observed that “[t]he photograph shows excavation debris placed

immediately next to the excavation, thus making the total depth to the top of the trench

shoring box even higher than the surrounding street surface.” CP at 3-4.

The Board observed that the second and third photographs in exhibit 1 “show what

appears to be a sewer access point or vault to one side of the trench,” and, “[t]he slope on

that side of the trench, closest to the trench shoring box, is clearly steeper than the

opposite side of the trench.” CP at 4.

It held that “[t]hese evidentiary

exhibits support Mr. Grant’s

opinion that the excavation was

not properly sloped to prevent

workers from exposure to cave

in or sloughing of surrounding

Type C soil.” Id. The second

and third photographs in exhibit

1, AR at 162-63, are reproduced

to the right and below.

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Halme timely appealed the Board’s decision to superior court. It contended the

Board’s findings were not supported by substantial evidence, arguing that “[t]he slope of

the trench . . . was never measured or otherwise calculated” and that the Department

“easily and safely could have done so during the inspection.” CP at 10-11. It argued that

the finding that the slope was too steep was based on “a brand new inspector’s subjective

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‘belief,’” with the result that there was a “complete lack of objective evidence.” CP at

11.

The superior court reversed the Board and vacated citation item 1-1. The

Department appeals.

ANALYSIS

The Department appeals the superior court’s reversal, arguing that the court

improperly substituted its judgment for the Board’s under substantial evidence review.

A prima facie case of a serious violation of a regulation adopted under the

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

Department to prove that (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. J.E. Dunn

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

(quoting Wash. Cedar & Supply Co. v. Dep’t of Labor & Indus., 119 Wn. App. 906, 914,

83 P.3d 1012 (2004)).

In the event of a petition for review of an order of the Board, the findings of the

Board with respect to questions of fact, if supported by substantial evidence on the record

considered as a whole, shall be conclusive. RCW 49.17.150(1). Evidence is substantial

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when it would persuade a fair-minded person of the truth or correctness of the matter.

Erection Co., Inc. v. Dep’t of Labor & Indus., 160 Wn. App. 194, 202, 248 P.3d 1085

(2011); Frank Coluccio Constr. Co. v. Dep’t of Labor & Indus., 181 Wn. App. 25, 35,

329 P.3d 91 (2014).

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

agency. Legacy Roofing, Inc. v. Dep’t of Labor & Indus., 129 Wn. App. 356, 363, 119

P.3d 366 (2005). We do not reweigh evidence or revisit credibility determinations.

Ostrom Mushroom Farm Co. v. Dep’t of Labor & Indus., 13 Wn. App. 2d 262, 271, 463

P.3d 149 (2020); Potelco, Inc. v. Dep’t of Labor & Indus., 7 Wn. App. 2d 236, 243, 433

P.3d 513 (2018). We review the evidence and its reasonable inferences in the light most

favorable to the prevailing party—here, the Department—in the highest forum that

exercised fact-finding authority—here, the Board. Erection Co., 160 Wn. App. at 202;

see, e.g., Orca Logistics, Inc. v. Dep’t of Labor & Indus., 152 Wn. App. 457, 462-63, 216

P.3d 412 (2009). Unchallenged findings of fact are verities on appeal. Frank Coluccio

Constr., 181 Wn. App. at 35.

Evidence before the Board included Mr. Grant’s testimony that he spent

approximately an hour inspecting the work site and taking pictures. Based on his visual

inspection alone, he believed that the sides of the excavation were steeper than the

maximum permitted slope. He also explained that a common rule of thumb used by

Department inspectors is that if a slope on the side of a trench complies with a one and a

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Halme Constr. v. Dep’t of Labor & Indus.

half to one ratio, then a person should be able to walk up and out without using his or her

hands. He testified he could see that would not be possible with slopes on the jobsite.

Evidence before the Board also included the 27 pictures taken at the jobsite, including the

3 commented on by the Board’s decision that we reproduce above.

Halme’s contention that this is not substantial evidence is based on its argument

that WISHA regulations provide a simple formula, measurements for which can be safely

taken, that determine compliance. It argues that the failure to take those measurements

and do that math is enough, on its own, to make it unreasonable for the Board to have

relied on Mr. Grant’s testimony and photographs. For reasons set forth below, we

disagree.

The relevant regulation does not provide a formula

Halme argues that “[t]he regulation at issue provides a simple method to calculate

the angle of a trench for purposes of determining whether a trench is properly sloped,”

citing WAC 296-155-66403 (Figure N-12). Resp’t’s Resp. Br. at 12. The formula,

Halme argues, required Mr. Grant to “simply measure[ ] the total distance across the

trench[,] . . . divide[ ] the distance by two, and deduct[ ] the width of the trench box,”

thereby “easily determin[ing]” whether the horizontal distance was 1.5 the relevant depth.

Id. at 14-15.

Before the Board, Halme did not argue that WISHA regulations provide such a

formula or require that the Department use it. Under RCW 49.17.150(1), “[n]o objection

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that has not been urged before the board shall be considered by the court, unless the

failure or neglect to urge such objection shall be excused because of extraordinary

circumstances.” In any event, the relevant regulatory diagram and language is set forth in

its entirety at page four, above. Halme’s proposed formula does not appear in the

regulation.

The formula proposed by Halme can arrive, at best, at an average slope of the
sides of an excavation

Halme contends that sloping must be compliant if the following formula is

satisfied:

Excavation width > 2 x (1.5 x depth of excavation) + width of trench box.

See Resp’t’s Resp. Br. at 14-15. This assumes, however, that the slopes on either side of

the trench box are identical and even, rather than irregular. Only then will this

calculation of what is an “average” slope conform to the actual slopes on either side. If

the trench box is not centrally located and the slopes on either side are not identical,

Halme’s formula tells us nothing about their actual slope.2

2
Assuming a total depth of 14’ 8” and a trench box width of 4’, the relevant vertical
distance would be 98” (6’ 8” plus 18”) and what Halme contends is the “compliant” excavation
width would be 28’ 6” (342”). This supposedly “compliant” width could be achieved with either
of the following slope combinations, and many others:
Identical slopes on either side, with a horizontal base of 147” and a height of 98”, each
having an H/V ratio of 1½ to 1, and 34-degree slopes; or
A near slope having a horizontal base of 98” and a height of 98”, and a far slope having a
horizontal base of 196” and a height of 98”, having H/V ratios of roughly 1 to 1 and 2 to 1,
respectively, or 45 degrees and approximately 27 degrees. Obviously, the near slope in this
example would not be compliant.

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Mr. Grant’s photographs establish that the slopes on either side of Halme’s

excavation are not identical and regular. The Board even commented on the fact that the

slope on the side of the trench in which there appears to be a sewer access point “is

clearly steeper than the opposite side of the trench.” CP at 4. The formula is not a test

for compliance.

The record does not support Halme’s claim that Mr. Grant could have safely taken
useful measurements

The record does not support Halme’s claim that Mr. Grant could have safely and

accurately made useful measurements. Mr. Grant repeatedly testified that this was not

the case. See AR at 115 (“I cannot put myself in a position where I would be exposed to

the same potential hazards that the employee would be exposed to, so that’s why I can’t

take measurements or get any closer to that trench”), 132 (same), 134 (could not measure

from the top of the trench box because “I can’t put myself in a position . . . exposed to a

cave-in hazard”). He also testified that a calculation based on the depth of the trench

would not change the fact that portions of the excavation walls were visibly too steep.3

3
In cross-examining Mr. Grant, Halme sought his agreement that areas of
steepness could be “more vertical” as long as compensating areas of less steepness kept
the slope below a hypothetical straight 34-degree line running from freeboard to ground
level. AR at 136-42. Mr. Grant responded that this would be a form of benching which
is not permitted with type C soil. See WAC 296-155-66403. Even in type B soil, which
can be benched, the maximum vertical dimension is four feet. See id. Neither the IAJ
nor the Board accepted that construction of figure N-12, and that particular argument is
not renewed on appeal.

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First, it is undisputed, and the pictures make clear, that at the time Mr. Grant

arrived at the jobsite, Halme employees had moved soil (presumably type C soil) to the

edges of the excavation. Indeed, the reason Halme was able to obtain reversal of citation

items 1-2 and 1-3 was because it established to the Department’s satisfaction that it had

removed its ladders and moved piles of material to the excavation’s edges in the

beginnings of a backfill operation. Under WISHA regulations, neither Halme employees

nor Mr. Grant should have been entering the excavation or standing on the piles of

material at its perimeter.

It is hard to imagine how useful measurements could safely and reliably been

made. For instance, the slope on either side of the trench box was required to begin at or

below the 18 inch freeboard at the top of the box. Mr. Grant could not enter the trench to

take a measurement; he would have to rely on what he could see or photograph. He

would be doing that from a location 8 feet higher in elevation than the top of the trench

box and likely 12 feet, or more or less, from its side.

Since Mr. Grant suspected particular areas of slope were too steep, the most

meaningful horizontal measurement would be for him to stand at the edge above the

slope he believed was too steep and attempt to measure the distance to the near side of

the trench box—not all the way across the excavation, as suggested by Halme. But here

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again, no one could enter the trench to assist him, and the near side of the shoring box

was 8 vertical feet, and 12 horizontal feet (more or less) away.

We decline Halme’s invitation to reassess credibility and reweigh evidence

Halme leads its argument on appeal by emphasizing the words “when viewed in

light of the record as a whole” in RCW 49.17.150(1)’s provision that “[t]he findings of

the board . . . with respect to questions of fact, if supported by substantial evidence on the

record considered as a whole, shall be conclusive.” If Halme reads “considered as a

whole” to be an invitation to reargue the Board’s assessment of witness credibility and

evidentiary weight, it is mistaken.

Viewing the evidence in the light most favorable to the Department, Mr. Grant

testified to having spent approximately an hour doing a walk-around of the jobsite. He

would have had the opportunity to view the walls of the excavation from many angles.

He testified to having received nine weeks’ training in Olympia when hired, and field

training from supervisors or veteran compliance officers thereafter. More important for

purposes of his ability to estimate slope, however, was his human experience. We are

constantly exposed to the appearance and properties of inclines. If an adult who

understands the concept of a geometric angle and how it is measured was given several

minutes to examine and estimate the degree of an acute angle rising from a horizontal

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line, it would be the rare individual who would not be able to say whether the angle was

less than, more than, or close to 45 degrees. Board members could reasonably perceive

some of the slopes in the photographs as being greater than 45 degrees, and even near-

vertical.

It is commonly understood that lay witnesses may estimate size, weight, distance,

speed and time even when those quantities could be measured precisely. Strong v. Valdez

Fine Foods, 724 F.3d 1042, 1046 (9th Cir. 2013) (citing 7 JOHN HENRY WIGMORE,

EVIDENCE IN TRIALS AT COMMON LAW § 1977 (rev. ed. 1978)). In Washington, lay

witnesses may give opinions or inference based on rational perceptions that help the fact

finder understand the witness’s testimony. ER 701; State v. Montgomery, 163 Wn.2d

577, 591, 183 P.3d 267 (2008). In Strong, the Ninth Circuit reversed a district court’s

refusal to consider a plaintiff’s testimony that an access ramp’s slope exceeded the two

percent permitted by the Americans with Disabilities Act, because it was not based on

measurements. The Court held that the plaintiff’s life experience using such ramps was a

sufficient basis for his lay opinion testimony.

The Board found Mr. Grant’s photographs to lend support to his testimony. A

photograph is regarded as authenticated if a witness can testify that it is a reasonably

accurate portrayal of the subject depicted. State v. Sapp, 182 Wn. App. 910, 916-17, 332

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P.3d 1058 (2014). The photographic evidence included in exhibits 1 and 2 was admitted

without objection. After a photograph has been admitted, the opponent “may, of course,

attempt to show its flaws, inaccuracies, or alteration.” 5C KARL B. TEGLAND,

WASHINGTON PRACTICE: EVIDENCE LAW AND PRACTICE § 901.21, at 315 (6th ed. 2016).

In the hearing before the Board, however, Halme never questioned Mr. Grant about any

perceived flaws, inaccuracies, or alteration of his photographs.

Halme now argues that the photographs “are illustrative of why it is impossible to

accurately determine slope angles or distances in pictures” and laments that Board

members “apparently did not appreciate that it is problematic to rely on photographs” in a

case such as this one. Resp’t’s Resp. Br. at 16. The problem, it explains, is that items in

a foreground appear larger because they are in the foreground, and the relative size of

various subjects in the photograph is affected by their distance from the photographer.

Id. at 18-19.

The “problem” Halme identifies is a phenomenon of perception that a seeing

person experiences every moment of their waking life. Halme offers no reason Board

members would be incapable of adjusting for this phenomenon in considering the

evidence provided by the photographs.

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Halme asserts on appeal that “camera angles and focal lengths distort the angle of

the slope pictured in each of the Department’s photographic exhibits.” Id. at 18. It did

not establish any basis for that argument at the Board hearing, however, and offers no

other support for that argument on appeal.

Substantial evidence supported the Board’s final decision and order. We reverse

the superior court and reinstate the final decision and order of the Board.

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.

_____________________________
Siddoway, J.

WE CONCUR:

_____________________________
Pennell, C.J.

_____________________________
Staab, J.

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