Halme Constr. v. Wash. Dep't of Labor & Indus.

HALME CONSTRUCTION, INC., Respondent, v. WASHINGTON DEPARTMENT OF LABOR & INDUSTRIES, Appellant.

No. 38062-9-III

Court of Appeals of Washington, Division 3

February 15, 2022

UNPUBLISHED OPINION

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.

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.

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 be equal to or less steep than the maximum allowable slope for the soil, which, in the case of type C soil, is VA : 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 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. 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 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.

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.

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...