Clark/lewis A Jv, V. Dept Of L & I Of Wa State

• Court: Court of Appeals of Washington
• Decided: September 30, 2024
• Docket: 85829-7
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

CLARK/LEWIS a JV, No. 85829-7-I

Respondent, DIVISION ONE

v. UNPUBLISHED OPINION

WASHINGTON STATE DEPARTMENT OF LABOR & INDUSTRIES,

Appellant.

FELDMAN, J. — The Department of Labor & Industries (L&I) appeals from

the superior court’s order vacating the citations issued to Clark/Lewis by the Board

of Industrial Insurance Appeals (Board) for several alleged violations of safety

provisions of the Washington Administrative Code (WAC) enacted pursuant to the

Washington Industrial Safety and Health Act of 1973 (WISHA), chapter 49.17

RCW. Upon review of the record, we affirm the Board’s decision and, accordingly,

reverse the superior court’s order vacating the citations on judicial review.

I

Clark/Lewis, a joint venture between Clark Construction Group and Lease

Crutcher Lewis, was the general contractor for the construction of the new addition

to the Washington State Convention Center. On the evening of September 10,

2020, Tower Crane 2, operated by one of Clark/Lewis’ subcontractors, collided No. 85829-7-I

with the jib of a mobile crane. Both cranes sustained only minor damage. L&I

investigated the crane collision. Following its investigation, L&I issued citations to

Clark/Lewis for three violations of WISHA, two of which were classified as serious

violations. The citation imposed a penalty of $2,100 for each of the two serious

violations, with no penalty on the third violation.

Clark/Lewis challenged the citations, asserting that it did not commit any of

the violations cited by L&I. The Industrial Appeals Judge upheld the citations as

well as the assessed penalty amounts. Clark/Lewis appealed the citations to the

Board, which affirmed all three citations and adopted the Industrial Appeals

Judge’s proposed decision and order as its own. Clark/Lewis appealed to the King

County Superior Court. The superior court reversed the decision of the Board,

determining that none of the citations was supported by substantial evidence. L&I

appeals.

II

The Board concluded that Clark/Lewis violated WAC 296-155-53900(40),

WAC 296-155-53401(5), and WAC 296-800-14005(1), each of which is quoted and

discussed below. L&I asserts that substantial evidence supports the Board’s

conclusion that Clark/Lewis violated these provisions and that the superior court

erred in determining otherwise. As to all three violations, we agree.

A. Applicable Law and Standard of Review

L&I is charged with the authority to impose citations and penalties against

employers for violating WISHA regulations. RCW 49.17.050, .120, .180. At the

administrative level, L&I bears the initial burden of proving the existence of the

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cited violations. WAC 263–12–115(2)(b); SuperValu, Inc. v. Dep’t of Labor &

Indus., 158 Wn.2d 422, 433, 144 P.3d 1160 (2006). To establish a violation of

a WISHA regulation, L&I must prove each of the following four 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; [and] (4) the employer knew or, through the exercise of reasonable diligence, could have known of the violative condition.”

Id.(alteration in original) (quoting Wash. Cedar & Supply Co. v. Dep’t of Labor &

Indus., 119 Wn. App. 906, 914, 83 P.3d 1012 (2003)). For serious violations, L&I

must additionally prove that “there is a substantial probability that death or serious

physical harm could result.” RCW 49.17.180(7); see also Wash. Cedar & Supply

Co., 119 Wn. App. at 917. The only element at issue here is the second element:

whether L&I proved that the requirements of the standard were not met.

When reviewing a decision of the board, we do so based on the record

before the agency. Cent. Steel, Inc. v. Dep’t of Labor & Indus., 20 Wn. App. 2d

11, 21, 498 P.3d 990 (2021). 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.” J.E. Dunn Nw., Inc. v. Dep’t of Labor & Indus., 139 Wn.

App. 35, 42-43, 156 P.3d 250 (2007) (citing Inland Foundry Co. v. Dep’t of Labor

& Indus., 106 Wn. App. 333, 340, 24 P.3d 424 (2001)). Evidence is substantial if

it is sufficient to convince a fair-minded person of the truth of the stated

premise. Cent. Steel, 20 Wn. App. 2d at 22. We do not reweigh evidence but

instead construe the evidence in the light most favorable to the party that prevailed

in the administrative proceeding. Id. Here, that party is L&I.

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B. Violations of WISHA Regulations

1. Violation of WAC 296-155-53900(40)

WAC 296-155-53900(40) states:

You must position tower cranes, in service, whereby they can slew 360 degrees without either the counterjib or jib/boom striking any building, structure, or other object, unless:

(a) Suitable anticollision devices are installed which will prohibit contact with such objects or;

(b) Direct voice communications are established between any operator of the tower crane(s) involved and a signal person so stationed where the boom and/or counterweight movement, and the object with which it may contact can be observed so that the operator(s) can be warned of imminent danger.

(i) You must establish a secondary means of positive communications as a back-up for possible direct voice communication failure.

(ii) Radio communication systems without tone coded squelch are prohibited. You must not use citizens band radios as a means of communications for tower cranes.

Clark/Lewis was cited for violation of this regulation on two bases: (1) that no

signal person was “so stationed where the boom and/or counterweight movement,

and the object with which it may contact can be observed,” and (2) that it did not

have a “secondary means of positive communications as a back-up for possible

direct voice communication failure.”

Aaron Simmons was the operator of Tower Crane 2 on the evening of

September 10, 2020 and the only eyewitness to the collision to testify at the

administrative hearing. Simmons testified that he was not given any signal to stop

the tower crane before it collided with the mobile crane. When asked why no signal

was given, Simmons testified as follows:

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A person that was directing me or acting as my signalman or bellman was about 35 feet from my tower and he was on a floor, I don’t know, maybe Floor 10. Where the contact happened was 258 to 262 feet from where I was sitting in the cab. So I’m not sure that the signalman would even have been able to see it in the first place . . . from where he was at.

Simmons further testified that he believed that had a designated spotter been

present for swing shift, this likely could have prevented the collision. This evidence

is sufficient to support the Board’s determination that Clark/Lewis did not have a

signal person so stationed where the boom and/or counterweight movement and

the object with which it may make contact can be observed.

Clark/Lewis asserts that it did not violate WAC 296-155-53900(40) because

it had a signal person on site to observe the operation of Tower Crane 2. But WAC

296-155-53900(40) requires not merely that a signal person be present, but also

that they be stationed so that they can observe the area where the Tower Crane

could make contact with another object. Simmons’ testimony establishes that his

signal person was not so positioned.

Additionally, Clark/Lewis was required to have direct voice communications

between the crane operator and the signal person, along with a secondary means

of positive communication as back-up in the event of direct voice communication

failure, as it did not have any anticollision devices in use on the cranes at its project

site. Patrick Austin Sheely, the compliance safety and health officer who

performed the inspection of Clark/Lewis’ project site, testified that the Multi-Crane

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Communication Plan (MCCP) 1 in place at the time of the collision was dated June

17, 2020. This version of the MCCP states:

Each crane shall have at a minimum one radio for their crane’s operations and one radio for crane to crane communications.

To ensure that crane operations are not disrupted, personnel not involved in the current operation must request a “break” and be granted permission to speak before talking on a crane channel.

Specific channels used may be modified to account for interference or other conditions.

The MCCP did not contain any provisions concerning the duties of signal persons,

nor did it say anything further about communication between crane operators and

signal persons. Simmons confirmed that the actual working conditions conformed

to the MCCP, as “[e]very crane has two radios, one for the . . . crane-to-crane

channel. And then the other radio would be for our bellmen or signalmen.”

Clark/Lewis asserts that its secondary means of communication at the time

of the collision was its radio channel shared by all crane operators at the site. 2

However, Clark/Lewis specifically prohibits anyone other than crane operators

from using the crane-to-crane radio channel. As such, the crane-to-crane channel

could not have operated as a backup in the event that the signal person’s radio

channel failed.

1 An MCCP is “a plan that describes the interaction between multiple cranes on a single site and

sets forth protocols on who is allowed to operate their cranes in what space freely, what’s the protocol for moving into another crane’s space, and what do you do at the end of shift to put your crane in a position so that other operations can continue or the tower cranes can weathervane, which means swing freely in the wind throughout the course of the night when the cranes are not in use.” 2 Although the August 15, 2020 MCCP contains a provision outlining the duties of spotters and calls

for spotters to carry air horns as a secondary means of communication in the event of radio failure, this version of the MCCP was not published and distributed until after the collision.

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Accordingly, the Board’s finding that Clark/Lewis did not have an

appropriately stationed signal person and did not have a secondary means of

communication between signal persons and crane operators, in violation of WAC

296-155-53900(40), is supported by substantial evidence.

2. Violation of WAC 296-155-53401(5)

WAC 296-155-53401(5) states, in relevant part, “The site supervisor’s

duties would include the following: . . . (c) Ensuring that a qualified person is

designated as the lift director. (d) Ensuring that crane operations are coordinated

with other job site activities that will be affected by or will affect lift operations.”

WAC 296-155-53401(1) defines a “lift director” as a person who “[d]irectly

oversees the work being performed by a crane and the associated rigging crew.”

Several witnesses described what it means for a lift director to be

“qualified.”3 Sheely testified that L&I determines whether a lift director is qualified

by assessing their “basic experience and knowledge of cranes and how cranes

operate and crane hazards, and then their understanding and knowledge of both

of the requirements of a lift director and their understanding and knowledge of their

responsibility to fulfill those requirements.” Mark Valgardson, a statewide crane

consultant with L&I, similarly testified that a qualified lift director is someone who

possesses knowledge, training, and experience in “rigging, load movement, the

crane movement, the choreography of the lift, and the conditions around the

crane.”

3 Neither WISHA nor the administrative code define “qualified” in this context.

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According to the testimony of Aaron Simmons, the operator of Tower Crane

2, the swing shift “never had any lift directors” and he was not aware of anyone

serving in that capacity on September 10, 2020. Simmons also did not know the

name of the person who was acting as his signal person on September 10, 2020.

Simmons further testified that no one person was specifically assigned to act as

his signal person; “[t]here was just different people all the time.”

David Barone, an employee of subcontractor American Bridge, was acting

as the lift director responsible for Tower Crane 2 at the time of the collision. Barone

did not usually serve in this capacity for the swing shift. Sheely testified that he

spoke to Barone and surmised he was not qualified to serve as a lift director. 4

Clark/Lewis argues that the only basis Sheely provided for this conclusion was his

observation that Barone was from out of state. Although Sheely considered

Barone’s out of state residence to be a “red flag,” Sheely also testified that Barone

did not have “any awareness of what his duties as a lift director were or, critically,

that he had any awareness at all of his responsibility to fulfill those duties or stop

crane operations if things were not correct.”

In addition to Barone’s lack of understanding of his duties, other evidence

further supports the Board’s finding that Clark/Lewis was not ensuring that a

qualified person was designated as the lift director, particularly for the swing shift.

Upon speaking to multiple employees at the project site, Sheely concluded that it

had not been made clear who the designated lift directors were on the evening of

4 Clark/Lewis argues that Sheely’s testimony constituted “inadmissible opinion testimony . . . based

on inadmissible hearsay.” Although Clark/Lewis objected to some of Sheely’s testimony on the basis of hearsay, the Industrial Appeals Judge admitted the testimony for non-hearsay purposes. Clark/Lewis did not challenge any evidentiary rulings in its appeal to the superior court.

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September 10, as he “received several different answers from everyone I

interviewed.” Sheely’s determination was corroborated by Simmons, who testified

that “I was concerned that on night shift I didn’t have bellmen or signalmen

assigned specifically to my crane; I just kind of got a random guy from random

different trades. And that’s not usual for me.”

Greg Groleau, vice president of Clark Construction, testified that although

Clark/Lewis required its subcontractors to “provide us a list of the names who were

acting as their lift directors,” it would only interview those individuals “in some

cases” as it was “really incumbent upon the contractor to determine the

qualifications for their people.” In congruence with Groleau’s testimony, the MCCP

in effect at the time of the collision stated that “[a]ny company having a crane on

site will be required to appoint a Lift Director (or Directors) for their activities. The

Lift Director is responsible for all crane activity conducted by that company and

must be present during crane operations.” According to Sheely, this was improper

because “[t]he Code specifically calls out that the site-wide supervisor is

responsible for designating the lift director. And so delegating the designation or

appointment of a lift director to the subcontractors is not allowed.” Additionally,

Sheely testified that “the [MCCP] doesn’t specifically call out lift directors as their

duty to ensure that site operations are – all hazards on-site are addressed before

the crane is allowed to operate.” Even if the MCCP did address the duty of lift

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directors, Barone, the lift director on September 10, was not provided a copy of the

MCCP until that very day. 5

All of this evidence, viewed in the light most favorable to L&I, supports the

Board’s finding that Clark/Lewis did not ensure that a qualified person was

designated as the lift director. The Board’s findings, in turn, amply support its

conclusion that Clark/Lewis violated WAC 296-155-53401(5).

3. Violation of WAC 296-800-14005(1)

WAC 296-800-14005(1) states, “You must develop a formal accident

prevention program that is outlined in writing. The program must be tailored to the

needs of your particular workplace or operation and to the types of hazards

involved.” The Board determined that Clark/Lewis violated this regulation because

its accident prevention program and MCCP “do not address the safety and

supervisor structure in a multicrane situation.” L&I explained that these documents

omitted critical information, including “the duties of the lift director, how Clark/Lewis

will ensure the lift director is qualified, the requirement for a superintendent to be

present on every job, or the requirement for spotters or signal people to be aware

of crane activities and assist in preventing crane collisions.”

Clark/Lewis’ core accident prevention program was a generalized

document that was not tailored to any particular project site. This core document

did not contain any “recognition of the hazard that multi-crane situations present.”

The MCCP, which was specifically tailored to the convention center project, was

5 Simmons similarly testified that the only times he received Clark/Lewis’ MCCP was during his

orientation and on September 11, 2020 – the day after the collision.

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considered part of the accident prevention program for purposes of the regulation.

As discussed supra, the MCCP in effect at the time of the collision did not call for

a back-up means of communication between signal persons and crane operators

and was thus deficient for a multi-crane project site. The MCCP also did not

address the duties of lift directors or signal persons. As Sheely testified, the

responsibilities of a lift director are something that he would expect to be in the

core portion of the accident prevention program and, if not there, they would be in

the MCCP. However, Sheely also testified that neither Clark/Lewis’ core accident

prevention program nor its MCCP contained provisions “outlining who has the

responsibilities for what training or experience [lift directors] need to have in order

to be able to appropriately supervise and enforce safety policy.”

Clark/Lewis asserts that the Board should have found that its accident

prevention program was sufficiently tailored to its project because it presented

evidence that it provided copies of WISHA regulations to its subcontractors and

regularly sought advice from Valgardson about what should be included in their

MCCP. The Board’s order reflects that it considered this evidence but concluded

that the citation was nevertheless warranted. We do not reassess the weight that

the Board gave to the evidence presented. Cent. Steel, 20 Wn. App. 2d at 22.

Viewed in the light most favorable to L&I, the evidence supports the Board’s

determination that Clark/Lewis’ accident prevention program was not tailored to

the hazards of the convention center project.

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III

Substantial evidence supports the Board’s determination that Clark/Lewis

committed serious violations of WAC 296-155-53900(40) and 296-155-53401(5),

and committed a general violation of WAC 296-800-14005(1). We affirm the

Board’s decision and, accordingly, reverse the superior court’s order vacating the

citations on judicial review.

WE CONCUR:

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