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From the desk of Gordon C. Klug: To prevail on a claim of wrongful citation for violation of regulations under Washington’s Industrial Safety and Health Act of 1973 (“WISHA”), ch. 49.17.73 RCW, a plaintiff must provide substantial evidence that is sufficient to persuade a “fair-minded person” of the truth of the subject premise. In this opinion, the Washington Court of Appeals clarified that a previous finding properly based on substantial evidence, provides sufficient evidence of a violation and thus does not need to be re-weighed for value.
Claims Pointer: The Washington Court of Appeals reviewed the Board’s decision in a WISHA appeal based on the record presented before the agency, without re-weighing the evidence, but instead construing the evidence in the light most favorable to the prevailing party. Further reiterating that the Board’s findings of fact are conclusive if supported by substantial evidence and providing greater clarity to the construal of substantial evidence.
McClure & Sons, Inc. v. State of Wash., Dep’t of Labor & Indus., No. 80588-6-1, 2021 Wash. (May 5 2021)
In this case, the plaintiff, McClure & Sons, Inc. (“MSI”), was cited for five violations of WISHA regulations by the Department of Labor and Industries (“the Department”). The Department grouped three of the five citations and issued one penalty. The safety citations were: (1) MSI violated WAC 296-155-53401(5)(i) because it allowed crane operations near power lines without first meeting the requirements of WAC 296-155-53408; (2) MSI violated WAC 296-155-53408(2)(a)(i)(A) because it did not clearly define a work zone near hazardous power lines and prohibited a crane from operating past those boundaries; and (3) MSI violated WAC 296-155-53408(2)(b) because it did not take encroachment precautions to prevent electrocution. The Department also cited MSI for one serious violation of WAC 296-800-14005 for failing to have an adequate accident protection program (“APP”), specifically relating to cranes operating near power lines, as well as violated WAC 296-155-52901 for operating an uncertified crane. MSI received a fine of $3,600 for the power line violations, $3,600 for the certification violation, and $1,800 for the APP violation.
MSI appealed these violations before an Industrial Appeals Judge (“IAJ”), who ruled character evidence MSI was trying to introduce regarding the Department’s conduct during the investigation – in an attempt to discredit the investigation – to be irrelevant and affirmed all citations and penalties. Additionally, dismissing MSI’s claims that it had “complied” with WISHA, just in a different fashion. This provided an initial decision for the Board, containing findings of fact and conclusions of law. RCW 51.52.104. MSI then filed a petition for review to the Board, who also affirmed all the IAJ’s rulings, but corrected the findings of facts to clarify the distinction between demarcating the work zone’s boundaries and erecting an elevated warning line. MSI then petitioned for review to Snohomish County Superior Court. The court determined that substantial evidence supported the contested facts and affirmed the Board’s final order and decision. The court further ordered MSI to pay a civil penalty of $9,000, $200 in attorney fees, and interest from the date of entry of the judgement.
MSI appealed which brings this opinion from the Court of Appeals in the State of Washington.
To review an appeal of the Board’s decision in a WISHA application, the court must do so based on the record before the agency. Shimmick Constr. Co., Inc. v. Dep’t of Labor & Indus., 12 Wn. App. 2d 770, 778 460 P.3d 192 (2020). Accordingly, a Board’s findings of fact are conclusive if supported by substantial evidence. Erection Co. v. Dep’t of Labor & Indus., 160 Wn. App. 194, 202, 248 P.3d 1085 (2011). To determine if evidence presented is substantial, a court must find that the evidence is sufficient to persuade a fair-minded person of the truth of the stated premise. Mowat Constr. Co. v. Dep’t of Labor & Indus., 148 Wn. App. 920, 925, 201 P.3d 407 (2009). The Court of Appeals looked to the precedent set forth in Shimmick, that a court may not re-weigh evidence on appeal, but rather shall construe the evidence in the light most favorable to the prevailing party. Shimmick, 12 Wn. App. 2d at 778. Furthermore, questions of law must be reviewed de novo and interpretation of agency regulations shall be done consonant to the procedure for statutes. Id. Accordingly, “WISHA statutes and regulations are to be interpreted liberally in order to achieve their purpose of providing safe working conditions for every worker in Washington.” Erection Co., 160 Wn. App. At 202.
Though the Court of Appeals has the option to look to federal decisions that interpret WISHA’s federal analogue (OSHA), here it chose not to rely on federal case law since there is controlling Washington case law. See generally, Shimmick, 12 Wn. App. 2d 770
Ultimately, the court determined that the IAJ did properly exclude the evidence MSI had previously tried to introduce, regarding the Department’s behavior during the inspection. This determination was based on the court’s analysis for abuse of discretion of an administrative law judge’s evidentiary decision. King Cty. Pub. Hosp. Dist. No. 2 v. Wash. State Dep’t of Health, 178 Wn. 2d 363, 372, 309 P.3d 416 (2013). In order for a court to find there was an abuse of discretion, it would have to determine that the IAJ’s decision was improper because it was unreasonable or because it was based on untenable grounds/reasons. Bayley Constr. v. Wash. State Dep’t of Labor & Indus.,10 Wn. App. 2d 768, 795-96, 450 P.3d 647 (2020). Here, the evidence MSI had tried to introduce was not relevant to the overall scope of the matter at issue; whether MSI had violated the WISHA statutes and regulations and were the applied fines and fees appropriate. Thus, the IAJ’s reasoning for exclusion of this evidence was proper.
Additionally, the court found that all of the Board’s findings were supported by substantial evidence. This led the court to its determination that it did not need to re-weigh the value of the evidence on appeal. Therefore, if the Board’s findings are supported by substantial evidence, the court will determine that this is sufficient to support the alleged violations and will not go through the process of re-weighing the value of each piece of evidence on appeal. Shimmick, 12 Wn. App. 2d at 778.
THE BIG PICTURE
In this case, the Court of Appeals for the State of Washington explicitly rejected re-weighing evidence presented to the Board of Industrial Insurance Appeals when it found sufficient evidence to support a claim for violation of WISHA regulation. This opinion illustrates just how difficult it is to overturn a decision of the Department of Labor and Industries when there is substantive evidence to support a WISHA violation. MSI attempted to discredit the Department’s investigation by attempting to introduce character evidence of a WISHA investigator, and then arguing that there were no “violations” of safety regulations as MSI “complied” with WISHA (albeit in a haphazard fashion). Ultimately, MSI was required to pay $9,200 in fines/fees, as well as probably triple that amount in attorney fees and costs.