Max J. Kuney Co. v. Wash. State Dep't of Labor & Indus.

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MAX J. KUNEY CO., Appellant, v. WASHINGTON STATE DEPARTMENT OF LABOR & INDUSTRIES, Respondent.

No. 38831-0-III

Court of Appeals of Washington, Division 3

August 1, 2023

UNPUBLISHED OPINION

SIDDOWAY, J.

After being cited by the Department of Labor and Industries (Department) for serious violations of two safety regulations covering elevating work platform operation, Max J. Kuney Company (Kuney) unsuccessfully appealed to the Board of Industrial Insurance Appeals (Board) and then to superior court. In this further appeal, Kuney argues that its employee's knowing violation, contrary to his training and work rules, should have caused the Board to find a lack of knowledge on its part or the affirmative defense of unpreventable employee misconduct.

The Board reasoned that management's knowledge that workers were having difficulty performing their work in a safety-compliant way required more diligence from Kuney than was shown. Evidence supports its findings. We affirm.

Procedural Note

Contrary to proper procedure on appeal, Kuney assigns error to every consequential finding of fact entered by the Board, without then identifying how or why most of those findings are unsupported by evidence. It devotes its briefing instead to rearguing evidence favorable to Kuney and asking us to weigh the evidence differently than did the Board.

"When making a substantial evidence challenge, '[t]he appellant must present argument to the court why specific findings of fact are not supported by the evidence and must cite to the record to support that argument,' or they become verities on appeal." Cantu v. Dep't of Lab &Indus., 168 Wn.App. 14, 22, 277 P.3d 685 (2012) (quoting Inland Foundry Co. v. Dep't of Lab &Indus., 106 Wn.App. 333, 340, 24 P.3d 424 (2001)). Unsupported arguments need not be considered. Id. (citing Bryant v. Palmer Coking Coal Co., 86 Wn.App 204, 216, 936 P.2d 1163 (1997)). To correct for Kuney's error and enforce proper appellate review, we treat the Board's enumerated findings of fact 2 through 6 as verities, since Kuney fails to argue why any of those findings are unsupported by substantial evidence. We then address the evidence presented that supports the Board's enumerated findings 7 through 9, which Kuney does contest, before undertaking our analysis of the issues on appeal.

FACTS AND PROCEDURAL BACKGROUND

On May 8, 2019, Anthony Adolph, an employee of Max J. Kuney Co., was working on the underside of an overpass being constructed on Freya Street for the extension of U.S. Highway 395 in Spokane County. Mr. Adolph was installing girder stop pads, which required him to chip at concrete to make them fit. To access the underside of the bridge, he was in a Genie man-lift. The basket of the man-lift did not fit between the girders. See Administrative Record (AR) at 9 (Finding of Fact (FF) 2).

Previously a worker had complained to a Kuney superintendent that there were issues accessing the work area where the girder stop pads were being installed. The workers needed to position themselves higher into the work space. The superintendent went up on the man-lift and concluded he was able to perform the work. He informed the workers they did not have issues and the work could be performed from the man-lift. Alternative methods for safely accessing the work area were not considered. See AR at 9 (FF 3).

On the date of the violations, Mr. Adolph was observed standing on the top rail of the man-lift basket performing his work duties. To climb to the top rail, Mr. Adolph had removed his safety harness and unclipped his safety lanyard from the manufacturer provided and approved attachment to the basket. By standing on the top rail of the man- lift basket, Mr. Adolph violated WAC 296-869-60040(1).^[1] By not wearing his safety harness, he violated WAC 296-869-60040(2).^[2] Each violation involved the risk of serious injury or death. See AR at 9 (FF 4).

At the time Mr. Adolph was standing on the top rail of the man-lift without fall protection, there was no superintendent at the jobsite. There was no employee on the jobsite who understood who was in charge in the absence of the superintendent. See AR at 10 (FF 5).

The Department issued a citation and notice, and later, a corrective notice of redetermination, citing Kuney for one serious violation of WAC 296-869-60040(1) and one serious violation of WAC 296-869-60040(2). It assessed a penalty of $1,600 for each violation. Kuney appealed the corrective notice of redetermination to the Board. See AR at 10 (FF 6).

At the time of the violations, two Kuney employees were working on the Freya project: Mr. Adolph and Joseph Herrera. Mr. Adolph, a carpenter, was a four-year Kuney employee with certification as an aerial lift operator. Mr. Herrera was a traffic control supervisor. That morning, Mr. Herrera had set out traffic cones to control the flow of traffic below the overpass and then went up to sweep the top of the bridge. About once an hour, he went down to check on his traffic closure and see if Mr. Adolph needed any water.

Mr. Adolph was seen working from the guardrail on that day by Levi Thomure, a safety compliance officer for the Department who happened to be traveling southbound along the U.S. Highway 395 corridor. He saw signs warning of construction ahead and slowed down to weave his way through the traffic cones. As he passed through the worksite, he saw that someone was standing on the Genie's guardrail. He turned around, parked, and as he walked back toward the man-lift, photographed the legs that could be seen below the girders. When he reached the man-lift, he yelled up at the worker, who turned out to be Mr. Adolph, asking him to come down.

Mr. Adolph stepped into the basket and lowered the Genie lift. As he did, Mr. Thomure could see that Mr. Adolph was not tied off and not wearing his safety harness. Mr. Thomure took photos of the violations and measured the vertical wall Mr. Adolph was standing above, which stood approximately nine feet and two to three inches tall. Mr. Thomure then went to the top of the bridge and spoke with Mr. Herrera, who contacted Kelly Wiese, Mr. Herrera's and Mr. Adolph's supervisor. When Mr. Wiese arrived, Mr. Thomure initiated an opening conference with him on the hazards he had observed, which led to the citations presently on appeal.

Testimony at the hearing before the Board revealed that Mr. Adolph and Jesse Marshall, a second carpenter assigned to the girder stop pad installation task, mostly worked without supervision. Mr. Wiese was overseeing a larger project installing stormwater containment tanks for the city of Spokane, so he only regularly stopped at the Freya project in the morning and at the end of the day, on the way to and from the city project. Mr. Wiese testified at the hearing that Mr. Herrera was "[p]robably" in charge in his absence, AR at 320, because he was a foreman and the most senior of the Freya project workers. Mr. Herrera denied being a foreman on the Freya project, however, and both Mr. Herrera and Mr. Adolph expressed uncertainty as to who, if anyone, was expected to supervise in Mr. Wiese's absence.

When the Freya project had begun in approximately 2015, a wooden walkway was installed over the girders to allow laborers to work on the underside of the bridge. The project temporarily shut down in 2017 due to construction design issues, however, and the walkway was removed. When the project reopened in 2018, laborers worked from the basket of the Genie lift to install the girder stop pads. The Genie lift basket did not fit in between the concrete girders, so employees worked with their arms extended overhead to chip at the concrete and position the stop pads.

Mr. Wiese admitted at the appeal hearing that he was informed by either Mr. Adolph or Mr. Marshall that they were having trouble accessing their workspace from the Genie basket. In its decision, the Board attached importance to the following testimony from Mr. Adolph:

We was sent up there to fix some mistakes on the bridge and I put the man basket in between the girders all the way to the abutment. When I got up there, there was no room to work, no room to work whatsoever. What I had to do was chip out some concrete and I knew I was in the wrong and I knew I had training, but I was-I had-I was knowingly doing what I knew I wasn't supposed to, but for me it was just to get the job done I guess. I had to take my harness off and I was chipping concrete at the moment and then I seen the WISHA guy below me and-yeah, I knew I was in the wrong. I don't know. I was trying to get the job done.

AR at 294. Later, he testified:

Like I said, I needed more room and I was just trying to-I guess rushed and I knew I was-I knew I was in the wrong, but I had girders on both sides of me and in front of me and a platform behind me. I figured there had was [sic] no way I could fall, I mean, like 50 or 40 feet. It was only going to be a few feet, so I was willing to take that risk.

AR at 298-99.

In response to the workers' complaints, Mr. Wiese went in the basket himself and determined it "wasn't convenient" to perform the work from that location, but he was able to do it. AR at 327. The Board noted that Mr. Wiese's response to the workers was that "'they didn't have issues. They just wanted to make it easier on themselves. The work was able to be done out of the man lift.'" AR at 7 (quoting AR at 327). The Board also cited Mr. Wiese's statement that Mr. Adolph made the decision to stand on the guardrail "'on his own. It could have been completed the other way. It just wasn't near as easy.'" AR at 7 (quoting AR at 317).

The Board upheld the citations. It found that Kuney "knew or with the exercise of reasonable diligence should have known of the...