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HALME CONSTRUCTION, INC., ) ) No. 38062-9-III Respondent, ) ) v. ) ) WASHINGTON DEPARTMENT OF ) UNPUBLISHED OPINION LABOR & INDUSTRIES, ) ) Appellant.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.
2 No. 38062-9-III Halme Constr. v. Dep’t of Labor & Indus.
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).
3 No. 38062-9-III Halme Constr. v. Dep’t of Labor & Indus.
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
4 No. 38062-9-III Halme Constr. v. Dep’t of Labor & Indus.
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.
5 No. 38062-9-III 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
6 No. 38062-9-III 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.
7 No. 38062-9-III Halme Constr. v. Dep’t of Labor & Indus.
8 No. 38062-9-III Halme Constr. v. Dep’t of Labor & Indus.
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.
9 No. 38062-9-III Halme Constr. v. Dep’t of Labor & Indus.
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
10 No. 38062-9-III Halme Constr. v. Dep’t of Labor & Indus.
‘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
11 No. 38062-9-III Halme Constr. v. Dep’t of Labor & Indus.
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
12 No. 38062-9-III 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
13 No. 38062-9-III Halme Constr. v. Dep’t of Labor & Indus.
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.
14 No. 38062-9-III Halme Constr. v. Dep’t of Labor & Indus.
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.
15 No. 38062-9-III Halme Constr. v. Dep’t of Labor & Indus.
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
16 No. 38062-9-III Halme Constr. v. Dep’t of Labor & Indus.
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
17 No. 38062-9-III Halme Constr. v. Dep’t of Labor & Indus.
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
18 No. 38062-9-III Halme Constr. v. Dep’t of Labor & Indus.
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.
19 No. 38062-9-III Halme Constr. v. Dep’t of Labor & Indus.
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.