Dawson Construction, Llc, V. Wa State Dept Of Labor & Industries

• Court: Court of Appeals of Washington
• Decided: August 14, 2023
• Docket: 84506-3
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DAWSON CONSTRUCTION, LLC, No. 84506-3-I

Appellant, DIVISION ONE

v. UNPUBLISHED OPINION

WASHINGTON STATE DEPARTMENT OF LABOR AND INDUSTRIES,

Respondent.

FELDMAN, J. — Dawson Construction, LLC, appeals a Board of Industrial

Insurance Appeals (Board) Decision and Order affirming a Department of Labor

and Industries (Department) Corrective Notice of Redetermination No.

317958834 following a workplace accident. We reject Dawson’s arguments and

affirm.

I

In July 2019, Dawson was working on what was known as the Mahogany

Project in Bellingham, Washington, constructing and installing wet utilities such

as storm drains, pipes, sidewalks, and parking. Part of this work involved Tucker

Rojas, a laborer, setting up a laser to check the grade and elevation while

another worker, Dean Teskey, used an excavator to move or add material based

on Mr. Rojas’s directions. Mr. Teskey would then load the excess material into a No. 84506-3-I/2

dump truck operated by Skyler Isaacson, 1 who would take the material to a

dumpsite.

On July 23, 2019, while driving a dump truck without an operable reverse

alarm, Skyler backed into Mr. Rojas, killing him. When the accident occurred,

Skyler was relying on Mr. Teskey honking the excavator horn to tell him when to

stop backing up because the dump truck did not have a backup camera or other

equipment besides mirrors to see behind it. Skyler was 18 at the time and had

been recently hired by Dawson. While he had received some on-the-job training

from his father Joshua, he was not aware that the truck was required to have an

operable backup alarm.

Relevant here, the Department cited Dawson for violating WAC 296-155-

610(2)(f)(i), which requires employers to ensure their dump trucks have an

operable backup alarm (violation 1-1); WAC 296-155-035(2), which requires

employers to permit only employees qualified by training or experience to

operate equipment and machinery (violation 1-2); and WAC 296-155-610(2)(l),

which requires employers to inspect all vehicles at the beginning of each shift to

ensure all parts and accessories, including safety devices, are in safe operating

condition (violation 1-3).

Dawson appealed to the Board, but did not dispute violations 1-1 and 1-3.

Instead, Dawson disputed violation 1-2 and argued that violations 1-1 and 1-3

should be grouped to avoid duplicative citations. The industrial appeals judge

(IAJ) upheld violation 1-2, finding that Skyler did not meet the definition of

1 Because both Skyler Isaacson and his father, Joshua Isaacson, will be discussed, we refer to each by their first name. -2- No. 84506-3-I/3

“qualified” in WAC 296-155-012. The IAJ also rejected Dawson’s argument that

violations 1-1 and 1-3 should be grouped, as well as its arguments regarding the

admissibility of evidence of Mr. Rojas’s death and expert witness testimony

describing commercial driver’s license (CDL) standards relating to backup

alarms. Dawson petitioned for review by the Board, which adopted the IAJ’s

decision and findings. Dawson then appealed to the superior court, which

affirmed the citation. Dawson now appeals to this court.

II

A. Violation 1-2

Dawson argues that the Board’s finding that Skyler was not qualified to

operate a dump truck (violation 1-2) is not supported by substantial evidence. We

disagree.

This issue is governed by the definition of “qualified” in WAC 296-155-012,

which defines a “qualified” employee as “[o]ne who, by possession of a

recognized degree, certificate, or professional standing, or who by extensive

knowledge, training, and experience, has successfully demonstrated their ability

to solve or resolve problems relating to the subject matter, the work, or the

project.” We review the Board’s decision regarding this issue based on the record

before the agency; we will not reweigh evidence. Dep’t of Labor & Indus. v.

Tradesmen Int’l, LLC, 198 Wn.2d 524, 534, 497 P.3d 353 (2021). We review

findings of fact to determine whether substantial evidence supports them. Id.

“Substantial evidence is evidence in sufficient quantum to persuade a fair-minded

person of the truth of the declared premise.” Mowat Constr. Co. v. Dep’t of Labor

& Indus., 148 Wn. App. 920, 925, 201 P.3d 407 (2009). -3- No. 84506-3-I/4

Substantial evidence supports the Board’s finding that Skyler was not a

“qualified” employee. Skyler lacked a recognized degree, certificate, and

professional standing. He had no prior construction experience, and the only

relevant driving experience he had was driving a truck during summer vacation

and intermittent experience with heavy farm vehicles. His only on-the-job training

lasted about an hour. His father Josh showed him how to operate the dump truck

and explained the differences between it and the other trucks Skyler had

operated. Skyler then observed Josh operate the dump truck for a few loads, and

Josh observed Skyler for two or three loads. At the time of the accident, Skyler

had been working for about a week, making about 30 trips a day, and lacked

knowledge of the relevant WISHA 2 regulations that governed how he was

supposed to operate the truck. Together, these facts can convince a fair-minded

person that Skyler was not a “qualified” employee as defined in WAC 196-155-

012 because his knowledge, training, and experience were not extensive and he

had not shown his ability to solve or resolve problems arising during the

operation of the dump truck.

Dawson argues that the Board’s reliance on the fact that Skyler did not

know that backup alarms were required on dump trucks is legally erroneous

because knowledge of a backup alarm is not specifically required by WAC 296-

155-035(2) nor is it an industry standard to require this knowledge. This

argument misinterprets the Board’s decision. The Board explained that “[t]he

purpose of the WAC provision at issue is to at least in part accomplish the goal of

2 As used herein, “WISHA” refers to the Washington State Industrial Safety and Health Act of 1973, ch. 49.17 RCW. -4- No. 84506-3-I/5

WISHA to enhance worker safety.” The Board was concerned with Skyler’s ability

to operate the dump truck safely, which required knowing and following the

relevant WISHA regulations. His lack of knowledge that the dump truck needed

an operable backup alarm is therefore evidence that he did not have enough

knowledge of the safety requirements to be qualified.

Dawson also faults the Board for giving insufficient weight to the evidence

that Skyler did have some prior experience and training. The Board’s decision

explains why the evidence of Skyler’s previous experience did not persuade it

that Skyler was qualified, stating, “it is apparent Skyler could physically operate a

dump truck. . . . However, this is not the issue here. . . . Rather, the issue is

whether Skyler was qualified to operate the dump truck in a safe manner.” The

Board’s reasoning makes it clear that it did not give great weight to evidence of

Skyler’s previous experience because the evidence did not speak directly to

Skyler’s ability to operate the dump truck safely. There is substantial evidence to

support the Board’s finding that Skyler was not a “qualified” employee, and we do

not reweigh that evidence against evidence the Board found less persuasive.

B. Grouping of Violations 1-1 and 1-3

Next, Dawson argues that the Board abused its discretion when it did not

group violations 1-1 and 1-3. We disagree.

To determine whether violations should be grouped, the Board used the

analytic framework set forth in In re Walkenhauer & Assocs., No. 91 W088, 1993

WL 453607 (Wash. Bd. of Indus. Ins. Appeals Sept. 7, 1993). 3 In deciding

3 Both parties agree that the analytical framework in Walkenhauer governs the grouping issue here. -5- No. 84506-3-I/6

whether to group violations, the Board in Walkenhauer explained that “[i]t is

useful to consider the problem from various perspectives to determine whether

the second violation . . . is necessarily included in the first.” Id. The Board then

identified the following three considerations:

[1] Do the two violations allegedly committed by the employer arise out of the same incident?

[2] Do the violations address the same hazard?

[3] Does the violation of the first standard . . . logically incorporate a violation of the second standard . . . ? In other words, by violating the first standard will the second standard, by definition, be violated as well? Are the conditions that gave rise to multiple violations one and the same?

Id. As these considerations make clear, the purpose of grouping is to avoid

penalizing an individual or entity multiple times for what is essentially “one and

the same” violation. Id. We review the Board’s decisions regarding penalties for

abuse of discretion. Potelco, Inc. v. Dep’t of Labor & Indus., 7 Wn. App. 2d 236,

253, 433 P.3d 513 (2018).

The Board did not abuse its discretion when it determined that violations

1-1 and 1-3 did not address the same hazard—failing the second Walkenhauer

consideration. WAC 296-155-610(2)(l) (violation 1-1) is meant to address many

general hazards and has broad application beyond any one hazard or

circumstance, while WAC 296-155-610(2)(f)(i) (violation 1-3) addresses the

specific hazard of backing the dump truck into or over someone. The difference

in scope and specificity between the two regulations shows that they address

different hazards and can therefore be treated as separate violations under the

Walkenhauer framework. This, by itself, provides a tenable basis to conclude, as

-6- No. 84506-3-I/7

the Board did, that grouping was not required.

Dawson focuses on the third Walkenhauer consideration and argues that

grouping is required because curing violation 1-1 would necessarily cure violation

1-3. Stated differently, Dawson claims that if there had been an operable backup

alarm, then it would necessarily have performed an adequate safety test. But the

relevant consideration in Walkenhauer asks whether violating one standard

definitionally violates the second standard. In this case, violating WAC 296-155-

610(2)(l) does not definitionally violate WAC 296-155-610(2)(f)(i) because a

safety inspection could still be inadequate even if there is an operable backup

alarm. Dawson’s argument thus misapplies the third Walkenhauer consideration.

And even if Dawson were correct with regard to this consideration, the second

Walkenhauer consideration—which Dawson largely ignores—is sufficient to

establish that the Board did not abuse its discretion when it did not group

violations 1-1 and 1-3.

C. Evidentiary Rulings

Lastly, Dawson argues that the Board abused its discretion when it (i)

admitted evidence of Mr. Rojas’s injury and death and (ii) did not admit the

testimony of Wesley Curtis, Dawson’s expert witness regarding CDL standards.

The Board’s evidentiary decisions are reviewed for abuse of discretion and “will

not be disturbed on review except on a clear showing of abuse of discretion, that

is, discretion manifestly unreasonable, or exercised on untenable grounds, or for

untenable reasons.” Bayley Constr. v. Dep’t of Labor & Indus., 10 Wn. App. 2d

768, 795-96, 450 P.3d 647 (2019) (quoting Wilson v. Horsley, 137 Wn.2d 500,

505, 974 P.2d 316 (1999)). There is no such abuse of discretion here. -7- No. 84506-3-I/8

The Board did not abuse its discretion by admitting evidence of Mr.

Rojas’s injury and death because background information is relevant and

admissible. Background information “complete[s] the story . . . by proving its

immediate context of happenings near in time and place” and is generally both

relevant and admissible. State v. Grier, 168 Wn. App. 635, 646, 278 P.3d 225

(2012) (quoting State v. Tharp, 27 Wn. App. 198, 204, 616 P.2d 693 (1980), aff’d,

96 Wn.2d 591, 637 P.2d 961 (1981)), see also Relevant evidence defined—

Stipulations and undisputed issues, 5 KARL B. TEGLAND & ELIZABETH A. TURNER,

WASHINGTON PRACTICE: EVIDENCE LAW AND PRACTICE § 401.6 (6th ed.) (“it is clear

that undisputed background information is within the definition of [relevant

evidence in] Rule 401”). The Department investigation that led to Dawson’s

citation occurred because of Mr. Rojas’s death; thus, his death is necessary

background information to complete the story of the violations.

Dawson also argues that even if evidence of Mr. Rojas’s death was

relevant, it should have been excluded because it was unfairly prejudicial. See

ER 403. The danger of unfair prejudice is reduced when a judge serves as the

fact finder. This is because “a trial judge, due to his or her experience and

training, is in a better position than jurors to identify and focus on the probative

quality of evidence . . . and to disregard the prejudicial aspects” of the evidence.

State v. Jenkins, 53 Wn. App. 228, 236-37, 766 P.2d 499 (1989); see also State

v. Majors, 82 Wn. App. 843, 848-49, 919 P.2d 1258 (1996) (court in bench trial is

presumed to give evidence its proper weight). Just as a judge is presumed to

focus on the probative value of evidence, it is logical to presume that the Board

would not be unfairly influenced by evidence that could arouse a strong -8- No. 84506-3-I/9

emotional response. The Board did not abuse its discretion by admitting this

evidence.

Nor did the Board abuse its discretion by excluding the testimony of

Dawson’s expert witness, Wesley Curtis, regarding the industry standards for

CDLs. Dawson argues that because WAC 296-155-035(2) does not provide any

specific guidance on what training, knowledge, and experience are required to

show that a worker is “qualified,” the CDL standards can provide guidance by

analogy and should have been considered. But the term “qualified” is specifically

defined in WAC 196-155-012, which is quoted above. Because WISHA provides

the relevant safety regulations, Mr. Curtis’s testimony regarding CDL standards

was irrelevant. The Board’s decision was not based on untenable grounds nor

made for untenable reasons; therefore, there was no abuse of discretion.

III

We affirm the Board’s decision and, accordingly, affirm the trial court’s

decision on judicial review.

WE CONCUR:

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