IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II

SEFNCO COMMUNICATIONS, INC., No. 55458-5-II

Appellant,

v.

DEPARTMENT OF LABOR AND 

INDUSTRIES,

UNPUBLISHED OPINION

Respondent.

BASSETT, JPT.

1

– SEFNCO Communications, Inc. appeals two citations issued by the 

Department of Labor and Industries (DLI) under the Washington Industrial Safety and Health Act 

of 1973

2

(WISHA) following the injury to one of its employees when he contacted an energized 

power line during the installation of a telecommunications line. The Board of Industrial Insurance 

Appeals (Board) upheld the citations, one for a violation of former WAC 296-32-220(10)(a) 

(2007), a serious violation, for allowing the injured employee to come too close to energized power 

lines, and the other for a violation of former WAC 296-32-230(4)(c) (2014), a general violation,

for having an employee at the job site who did not have the required first aid training.

 

1

Judge Jeffrey Bassett is serving as a judge pro tempore of the court pursuant to RCW 2.06.150.

2 Chapter 49.17 RCW.

Filed

Washington State

Court of Appeals

Division Two

April 19, 2022
No. 55458-5-II

2

SEFNCO argues that the citation for the serious violation was improper because the 

findings that the employee was a supervisor and that SEFNCO had constructive knowledge of the 

serious violation are not supported by substantial evidence. SEFNCO further argues that even if 

the constructive knowledge finding was supported by substantial evidence, SEFNCO established 

the defense of unpreventable employee misconduct under RCW 49.17.120(5)(a). SEFNCO also 

argues that the evidence was insufficient to support the citation for the general violation because 

the DLI failed to prove that the employee at issue was required to have first-aid training. 

We hold that (1) substantial evidence supports the finding that the injured employee was a 

supervisor, (2) substantial evidence supports the Board’s constructive knowledge finding, (3) the 

Board’s findings are inadequate to allow review of its conclusion that the unpreventable employee 

misconduct defense did not apply, and (4) SEFNCO’s argument that the DLI failed to prove that 

the employee who was the subject of the general violation was required to have first aid training 

under former WAC 296-32-230(4)(c) has no merit. Accordingly, we remand this matter to the 

Board to make the necessary factual determinations and to determine whether SEFNCO’s 

unpreventable employee misconduct defense applies. We otherwise affirm.

FACTS

I. CITATIONS AND CORRECTIVE NOTICE OF REDETERMINATION

On July 11, 2017, Kenneth Nelson, a SEFNCO employee, was injured when he contacted 

an energized power line while working on a nearby telecommunications line. The DLI investigated 

the incident and issued four citations, two of which are relevant in this appeal. 

The first relevant citation was for a violation of former WAC 296-32-220(10)(a), a 

“[s]erious” violation, based on SEFNCO’s failure to ensure that Nelson “did not approach or take 
No. 55458-5-II

3

any conductive objects, to include the employee, closer to any electrically energized overhead

lines” than allowed under Table 1 of chapter 296-32 WAC. Clerk’s Papers (CP) at 39. The second 

relevant citation was for a violation of former WAC 296-32-230(4)(c), a general violation, based 

on SEFNCO’s failure to provide first aid training to the employee who was assisting Nelson at the 

time of the incident. 

The DLI issued corrective notices of redetermination (CNRs) rejecting the assertion that 

the DLI had not established the knowledge element and SEFNCO’s unpreventable employee 

misconduct defense. SEFNCO appealed to the Board. 

II. PROPOSED DECISION AND ORDER AND BOARD’S DECISION

Following a hearing at which evidence and testimony was taken, an industrial appeals 

judge (IAJ) issued a proposed decision and order affirming the CNRs for the violations of former 

WAC 296-32-220(10)(a) and former WAC 296-32-230(4)(c).3

The introduction of the IAJ’s proposed decision and order stated:

SEFNCO Communications, Inc. filed an appeal from a [CNR] that found 

two serious violations and one general violation. The first serious violation is for 

failing to ensure that an employee not come in contact with an energized power line 

and the second is for not maintaining the scene of the accident so that it could be 

adequately inspected by the [DLI]. . . . The general violation is because an 

employee did not have first aid/CPR training at the time an employee was injured. 

The employer’s defense to the first violation is that this was an unforeseen accident 

and secondarily that there was employee misconduct. The [DLI] has proven this 

violation with the employer’s constructive knowledge of the hazard and the 

misconduct defense does not apply. . . . The general violation has been adequately 

proven because Mr. James, Mr. Nelson’s co-worker on the day of accident, did not 

have the proper first aid training. The CNR is AFFIRMED AS MODIFIED.

 

3 We note that although the parties did not present closing argument at the hearing before the IAJ, 

they did submit post-hearing briefing. In their post-hearing briefing, both parties discussed the 

reasonable diligence standard that we apply below. 
No. 55458-5-II

4

Id. at 48 (emphasis added).

In the “discussion” section of the proposed decision and order, the IAJ summarized the 

testimony and discussed the issues.4Id. (capitalization omitted). The IAJ’s summary of the 

testimony stated that on July 11, 2017, Nelson, a “splicer/aerial technician for SEFNCO,” 

sustained a burn injury after contacting a high voltage electrical wire. Id.

Nelson testified that on the day of the accident, he was “build[ing] a new strand of cable 

and connect[ing] it to a business.” Id. When Nelson arrived at the work site, he photographed an 

area of the work zone in which he had concern about his ability to perform the job safely due to 

ground clearance issues. After sending a photograph to his supervisor Timothy Lundell and 

speaking with Lundell, Nelson proceeded with the work.

As this work progressed, Nelson “used a lasher to put the new line of fiber optics onto the 

existing line.” Id. During this process, Nelson was in an elevated bucket truck and was working 

with a “ground hand, Nathan James.” Id. at 49. The IAJ summarized the accident as follows:

The accident occurred when the lasher got hung up in the trees and Mr. Nelson then 

got into the bucket of the boom truck and raised it to try to maneuver the lasher.[5]

When the cable with the lasher freed the bucket on the boom bounced, causing the 

power line to make contact with his right shoulder. Mr. Nelson fell into the bucket 

and Mr. James lowered it to the ground.

Id. at 49.

 

4 SEFNCO does not challenge the IAJ’s summary of the testimony. In fact, SEFNCO largely relies 

on the IAJ’s summary of testimony in its opening brief. And our review of the record shows that 

the summary is accurate. Where necessary, we have included footnotes noting additional relevant 

testimony.

5 Nelson also testified that he “didn’t realize how far [he] had boomed up with the cable laying on 

[his] basket instead of in a rope.” CP at 266.
No. 55458-5-II

5

Lundell, a construction manager on the project, testified that before the work started on 

this project, a SEFNCO engineer had reviewed the site and developed a construction plan. “This 

report could include hazards of the job.” Id.

Lundell also “described the minimum approach distance (MAD) for working around 

electrical wires.” Id. Lundell stated that SEFNCO “[e]mployees are trained to supply sufficient 

space away from the power lines because the electricity will take the path of least resistance, which 

can be the human body.” Id. Lundell testified that Nelson was the only person to have been injured 

in this way that Lundell was aware of. 

Lundell further “described the bucket truck used by Mr. Nelson and how the bucket will 

bounce.” Id. Lundell stated that he had spoken with Nelson on the phone before Nelson started 

working and was aware of the sag in the lines. But Lundell stated that the sag in the lines that 

Nelson was concerned about was common and that he (Lundell) “did not believe that there would 

be a problem with MAD in doing this work,” even though running the new line through the trees 

in the area “could be a challenge.” Id. Lundell also testified that Nelson was “in charge on this job 

site,” but that Nelson “did not have the authority to perform tasks such as hiring or firing.” Id.

Rod Julian, “the statewide telecom health and safety officer for the [DLI],” testified that 

following an inspection of the site after the accident, the DLI “cited SEFNCO with a serious 

violation of WAC 296-32-220(10)(a) because the employer failed to ensure that a SEFNCO 

employee not come into contact with an energized power line.” Id. at 49, 50.Julian also determined 

that there were 7200 volts in the line, which allowed him to establish the proper distances for 

MAD. 
No. 55458-5-II

6

Julian also testified that the DLI issued “[a] general violation of WAC 296-32-230(4)(c) . 

. . because of the lack of first aid/CPR training for Mr. James.” Id. at 50. Julian testified that he 

examined SEFNCO’s records and, although James was “slated” to have the training soon, there 

was no record of James having received first aid-CPR training by the time of the accident. Id.

Julian agreed that “Nelson was not a company supervisor,” but Julian testified that Nelson 

had been in charge of James when this accident occurred. Id. at 51. Julian stated that “[h]e believed 

that Mr. Nelson was a competent worker at this site and that the employer could rely on his abilities 

and that under the company plan no work was to be performed near the power line.”6Id.

Rocky Wallace, SEFNCO’s safety and compliance officer, testified about SEFNCO’s 

training, disciplinary program, safety audits, and accident prevention programs. Wallace 

“reviewed the work Mr. Nelson was to perform on July 11, 2017 and, [stated that] if the trees seen 

in [the photograph Nelson had taken] were trimmed, he did not see a hazard in performing this 

work.” Id. at 51. Wallace also “identified the lasher and described how [ ]it works.” Id.

Additionally, “Wallace agreed that Mr. Nelson was the competent person on site and responsible 

for getting the job done and directing the crew.” Id.

Chris McBride, a lead for SEFNCO, testified that he and his crew were assigned “to secure 

the work area” after the accident. Id. McBride had worked with Nelson “on numerous occasions,” 

and was “well aware of MAD and has received training on it.” Id. McBride also reviewed Nelson’s 

photograph and stated that “he did not observe any issue with power line difficulties if the trees 

were trimmed.” Id.

 

6

Julian also acknowledged that “[a]nybody who works in a bucket knows that it bounces.” Id. at 

346.
No. 55458-5-II

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The IAJ then discussed the issues in light of this testimony:

There is no question that Mr. Nelson sustained injuries when he came within 

the MAD while stringing a fiber optic line while he was in the elevated bucket 

attempting to extricate the lasher from the trees. The employer would like me to 

classify this situation as an unforeseeable mishap with their highly experienced 

lineman momentarily entering the MAD when the bucket unexpectedly bounced. 

The [DLI] believes that they have shown all of the elements necessary to sustain 

these alleged violations for which the employer had actual or constructive 

knowledge. Constructive knowledge comes from the view of the project prior to the 

commencement of work. Mr. Nelson took a photograph from the first pole and spoke 

with his supervisor about ground clearance, with it being known that the trees 

would have to be trimmed in order to string the new line. Mr. Nelson could have 

performed all of his necessary work outside the MAD, but with this tree situation it 

was foreseeable that the lasher could become tangled in the limbs and become 

necessary that the boom truck with its bucket be used to untangle the equipment. 

The witnesses all agree that it is known that the bucket will bounce and with the 

addition of the lasher’s weight the bucket can bounce more. This is what occurred 

to Mr. Nelson and caused the violation with electrical contact within the MAD. . . . 

The employer put forth the defense of unpreventable employee misconduct 

and noted that while Mr. Nelson was the supervisor on this job he did not have the 

power to hire and fire. They would like me to use these facts and the Board’s recent 

decision in In re Tyson Fresh Meats, [No. 17 W1079 (Bd. of Indus. Ins. Appeals 

Dec. 17, 2018)]

[7]

to determine that the violations should be vacated. I do not find 

that the facts in the present case meet those necessary for me to accept the 

employer’s position. The supervisor’s conduct in Tyson go way beyond what was 

done by Mr. Nelson. As such, I rely more on the Board’s analysis in In re Jornada 

Roofing 1, Inc., [No. 08 W1050 (Bd. of Indus. Ins. Appeals Jan. 27, 2010)];

[8]

and 

In re Greater American Construction, [No. 12 W1058 (Bd. of Indus. Ins. Appeals 

Aug. 16, 2013)],

[9]

and believe that the supervisor’s participation in the safety 

violation weighed heavily in favor of assessing that unpreventable employee 

misconduct did not occur. A similar stance was taken by the Court of Appeals in 

Potelco, Inc. v. Department of Labor and Indus., 194 Wn. App. 428[, 377 P.3d 251] 

(2016). I do not believe that this defense is applicable to SEFNCO in this case 

because of Mr. Nelson’s supervisory tasks and the facts presented.

. . . . 

 

7

http://www.biia.wa.gov/SDPDF/17W1079.pdf.

8

http://www.biia.wa.gov/DO/08W1050_ORD_20100127_DO.PDF.

9

http://www.biia.wa.gov/DO/12W1058_ORD_20130816_DO.PDF.
No. 55458-5-II

8

The [DLI] believes that SEFNCO did not contest the fact that Nathan James, 

Mr. Nelson’s ground hand, did not have first aid training prior to engaging in this 

work and therefore violated [former] WAC 296-32-230(4)(c). SEFNCO indicates 

that he was scheduled to have this training and does not believe it was appropriate 

for Mr. James to have this training in order to work in the field with Mr. Nelson, 

who had the proper first-aid training. Mr. James had only worked for the employer 

for a matter of days, but this does not alleviate the need for him to be properly 

trained before going into the field to assist Mr. Nelson. He needed the first aid 

training prior to doing so in order to be trained to assist if an injury occurred, 

which happened here, to his co-worker. This violation is affirmed.

Id. at 53-54 (emphasis added).

In addition, the proposed decision and order included brief “findings of fact” and 

“conclusions of law” sections that stated:

FINDINGS OF FACT

. . . . 

2. On July 11, 2017 in Fife, Washington, Kenneth Nelson, an employee of 

SEFNCO Communications, Inc. entered the [MAD] for working around 

electrical wires, a serious violation of [former] WAC 296-32-220(10)(a), and 

sustained significant burning injuries.

3. At the time of the July 11, 2017 accident, Mr. Nelson was the supervisor in 

charge of conducting the necessary work.

. . . .

5. On July 11, 2017, Nathan James, an employee of SEFNCO Communications, 

Inc., was working with Kenneth Nelson and had not yet received first aid 

training in violation of [former] WAC 296-32-230(4)(c).

. . . . 

CONCLUSIONS OF LAW

. . . .

2. On July 11, 2017, SEFNCO Communications, Inc. committed a serious 

violation of [former] WAC 296-32-220(10)(a) as alleged in Item 1-1 of [CNR] 

No. 317946524. . . . 
No. 55458-5-II

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3. The violation of [former] WAC 296-32-220(10)(a) committed on July 11, 

2017 was not the result of unpreventable employee misconduct as the term is 

used in RCW 49.17.120(5).

. . . . 

5. By July 11, 2017, Nathan James had not received first aid training and 

SEFNCO Communications, Inc., committed a general violation of [former] 

WAC 296-32-230(4)(c).

Id. at 54-55. The IAJ affirmed the serious and general violations. 

SEFNCO petitioned for review of the IAJ’s decision. The Board granted review and 

concluded that the IAJ’s proposed decision and order was “supported by the preponderance of the 

evidence and [was] correct as a matter of law.” Id. at 67. The Board adopted the IAJ’s proposed 

decision and order by reference. 

SEFNCO appealed the Board’s decision to the superior court. The superior court affirmed 

the Board’s decision. SEFNCO appeals. 
No. 55458-5-II

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ANALYSIS

I. SERIOUS VIOLATION: VIOLATION OF MAD

SEFNCO first challenges the finding of a serious violation of former WAC 296-32-

220(10)(a).10 We affirm that finding.

A. LEGAL PRINCIPLES

We review [the Board’s] decisions directly based on the record before the 

agency. W. Oilfields Supply v. Dep’t of Labor & Indus., 1 Wn. App. 2d 892, 900, 

408 P.3d 711 (2017). We review challenged 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, 156 P.3d 250 (2007). Substantial evidence is “evidence ‘in sufficient 

quantum to persuade a fair-minded person of the truth of the declared premise.’ ” 

J.E. Dunn Nw., 139 Wn. App. at 43, 156 P.3d 250 (quoting Holland v. Boeing Co., 

90 Wn.2d 384, 390-91, 583 P.2d 621 (1978)).

We do not reweigh the evidence on appeal. Potelco, Inc.[,194 Wn. App. at 

434]. In determining whether substantial evidence supports [the Board’s] findings, 

we view the evidence in the light most favorable to the party that prevailed before 

the [Board]. Potelco, 194 Wn. App. at 434, 377 P.3d 251. Unchallenged findings 

of fact are verities on appeal. Mid Mountain Contractors, Inc. v. Dep’t of Labor & 

Indus., 136 Wn. App. 1, 4, 146 P.3d 1212 (2006). If substantial evidence supports 

the findings of fact, we decide if those findings support the [Board’s] conclusions 

of law. Potelco, 194 Wn. App. at 434, 377 P.3d 251.

Potelco, Inc. v. Dep’t of Labor & Indus., 7 Wn. App. 2d 236, 243-44, 433 P.3d 513 (2018).

 

10 Former WAC 296-32-220 provided, in part:

(10) Power exposures.

(a) The employer shall ensure that no employee approaches or takes any 

conductive object closer to any electrically energized overhead power lines and 

parts than prescribed in Table 1 unless:

(i) The employee is insulated or guarded from the energized parts 

(insulating gloves rated for the voltage involved shall be considered adequate 

insulation), or 

(ii) The energized parts are insulated or guarded from the employee and any 

other conductive object at a different potential, or 

(iii) The power conductors and equipment are deenergized and grounded.
No. 55458-5-II

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B. SUPERVISOR FINDING

The Board found that Nelson was a supervisor. SEFNCO argues that the evidence did not 

support this finding because Nelson did not have the authority to hire or fire workers, set wages, 

or approve vacation. We disagree.

An employee does not have to hold the official title of foreman or supervisor to be 

considered a supervisor for the purposes of imputing knowledge onto the employer. See Mountain 

States Contractors, LLC v. Perez, 825 F.3d 274, 284-85 (6th Cir. 2016).11 It is sufficient that the 

employee had significant control over the actual work in practice and the ability to stop work when 

faced with clear safety hazards. See id.

Here, it was undisputed that Nelson was in charge of the work being done and that he had 

the ability to stop this work if the team encountered any safety hazards. Lundell, Julian, Wallace, 

and McBride testified that Nelson was in charge on the job site, that it was his job to direct the 

crew doing the work, that he was responsible for identifying hazards, and that he could terminate 

the work if he discovered any hazards. This testimony is substantial evidence that Nelson was 

acting as a supervisor and supports the Board’s finding. Accordingly, this argument fails.

 

11 Federal decisions interpreting the federal Occupational Safety and Health Administration Act, 

29 U.S.C. §§ 651-678, may inform us when interpreting WISHA. Shimmick Constr. Co, Inc. v. 

Dep’t of Labor & Indus., 12 Wn. App. 2d 770, 778, 460 P.3d 192 (2020).
No. 55458-5-II

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C. CONSTRUCTIVE KNOWLEDGE

To establish a prima facie case of a serious WISHA safety violation, the DLI is required 

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.

Ostrom Mushroom Farm Co. v. Dep’t of Labor & Indus., 13 Wn. App. 2d 262, 272, 463 P.3d 149 

(2020); see also RCW 49.17.180(7).12

SEFNCO argues that the Board’s finding that SEFNCO had constructive knowledge of the 

violative condition was not supported by substantial evidence. We disagree.13

Again, to establish a prima facie case of a serious WISHA safety violation, the DLI is 

required to prove, in part, that “the employer knew or through the exercise of reasonable diligence 

could have known of the violative condition.” Ostrom Mushroom Farm, 13 Wn. App. 2d at 272.

“ ‘Reasonable diligence’ includes the obligation of an employer to inspect the work site, anticipate 

 

12 RCW 49.17.180(7) provides: 

For the purposes of this section, a serious violation shall be deemed to exist in a 

workplace if there is a substantial probability that death or serious physical harm 

could result from a condition which exists, or from one or more practices, means, 

methods, operations, or processes which have been adopted or are in use in such 

workplace, unless the employer did not, and could not with the exercise of 

reasonable diligence, know of the presence of the violation. 

At the time of the incident, this subsection was numbered as subsection (6). See former RCW 

49.17.180(6) (2010). Because the content of the subsection has not changed, we cite to the current 

version of the statute.

13 SEFNCO also argues that the DLI failed to establish that SEFNCO had actual knowledge of the 

violative condition. But as SEFNCO acknowledges, the Board did not find that the DLI had 

established actual knowledge of the violative condition. 
No. 55458-5-II

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hazards that employees may be exposed to, and take measures to prevent the occurrence of a 

violative condition.” Bayley Constr. v. Dep’t of Labor & Indus., 10 Wn. App. 2d 768, 783, 450 

P.3d 647 (2019) (quoting Erection Co., Inc. v. Dep’t of Labor & Indus., 160 Wn. App. 194, 206-

07, 248 P.3d 1085 (2011)).

Constructive knowledge may be proved through evidence that a violation was in 

plain view. Such knowledge is established where the violation was ‘readily 

observable or in a conspicuous location in the area of the employer’s crews.’

Moreover, when a supervisor has actual or constructive knowledge of a safety 

violation, such knowledge can be imputed to the employer. 

Potelco, 194 Wn. App. at 439-40. (internal citations omitted) (quoting Erection Co., 160 Wn. 

App. at 207); see also Bayley Constr., 10 Wn. App. 2d at 783. Notably, “the applicable standard 

here is whether [the employer] knew or [c]ould have known of the violative condition—not

whether the behavior that led to the violation was foreseeable.” Potelco, 194 Wn. App. at 440 

(emphasis altered).

Although not expressly designated as a finding of fact or conclusion of law, the discussion 

section of the Board’s decision contains a constructive knowledge finding:

Constructive knowledge comes from the view of the project prior to the 

commencement of work. Mr. Nelson took a photograph from the first pole and 

spoke with his supervisor about ground clearance, with it being known that the trees 

would have to be trimmed in order to string the new line. Mr. Nelson could have 

performed all of his necessary work outside the MAD, but with this tree situation 

it was foreseeable that the lasher could become tangled in the limbs and become 

necessary that the boom truck with its bucket be used to untangle the equipment. 

The witnesses all agree that it is known that the bucket will bounce and with the 

addition of the lasher’s weight the bucket can bounce more. This is what occurred 

to Mr. Nelson and caused the violation with electrical contact within the MAD.

CP at 52 (emphasis added).

The Board’s application of foreseeability standard when determining whether SEFNCO 

had constructive knowledge of the violative condition was error. To establish constructive 
No. 55458-5-II

14

knowledge, the DLI was not required to prove that the behavior that caused the violation was 

foreseeable. Potelco, 194 Wn. App. at 440. Rather, it was required to show that SEFNCO, with 

the exercise of reasonable diligence, knew or could have known of the violative condition, here 

that Nelson was conducting his work in a way that risked violating the MAD and coming too close 

to the energized line. Id. But we can still affirm the Board if substantial evidence supports the 

constructive knowledge finding under the proper standard. Erection Co., 160 Wn. App. at 205.

The employer has constructive knowledge if, had it exercised reasonable diligence, it could 

have known of the violative condition. Id. “ ‘Reasonable diligence’ includes the obligation of an 

employer to . . . anticipate hazards that employees may be exposed to, and take measures to prevent 

the occurrence of a violative condition.” Bayley Const., 10 Wn. App. 2d at 783. And, as previously 

noted, “when a supervisor has actual or constructive knowledge of a safety violation, such 

knowledge can be imputed to the employer.” Potelco, 194 Wn. App. at 440. Nelson was a 

supervisor. His constructive knowledge of a violative condition could be imputed to SEFNCO.

Nelson’s proximity to the energized line combined with the bucket’s bouncing created the 

violative condition; with the exercise of reasonable diligence, he should have anticipated this 

hazard and taken measures to prevent the occurrence of this condition. The testimony established 

that “[a]nybody who works in a bucket knows that it bounces.” CP at 346. A reasonable person 

would know that if the weight of the lasher and cable was suddenly removed from the bucket, the 

bucket would bounce. Further, Nelson testified that he “didn’t realize how far [he] had boomed 

up,” and was therefore unaware of how close to the charged lines he was, while trying to extricate 

the lasher. Id. at 266.
No. 55458-5-II

15

Taking this evidence in the light most favorable to the DLI, Nelson, with the exercise of 

reasonable diligence, could have known how close to the energized lines he was, could have 

anticipated that the bucket would bounce into the MAD once the lasher was released, and thus 

could have anticipated the existence of a violative condition and should have taken measures to 

prevent the violative condition. Thus, the Board’s constructive knowledge element is supported by 

substantial evidence.

D. UNPREVENTABLE EMPLOYEE MISCONDUCT DEFENSE

SEFNCO argues that the evidence did not support the Board’s conclusion that SEFNCO 

failed to establish its unpreventable employee misconduct defense. The Board’s findings are 

insufficient to allow for our review of this issue.

RCW 49.17.120(5)(a) provides,

No citation may be issued under this section if there is unpreventable employee 

misconduct that led to the violation, but the employer must show the existence of:

(i) A thorough safety program, including work rules, training, and 

equipment designed to prevent the violation;

(ii) Adequate communication of these rules to employees;

(iii) Steps to discover and correct violations of its safety rules; and

(iv) Effective enforcement of its safety program as written in practice and 

not just in theory.

Proof of this defense is “more rigorous” and more difficult when a supervisor is involved 

in the violation because a supervisor’s involvement in the violation “raises an inference of lax 

enforcement and/or communication of the employer’s safety policy.” Potelco, 194 Wn. App. at 

437. But a supervisor‘s participation in or failure to enforce a safety rule does not preclude the 

defense of unpreventable employee misconduct, it merely “weighs against it.” Id.

“[F]indings must be made on all material issues in order to inform the appellate court as 

to ‘what questions were decided by the trial court, and the manner in which they were decided’ ” 
No. 55458-5-II

16

Federal Signal Corp. v. Safety Factors, Inc., 125 Wn.2d 413, 422, 886 P.2d 172 (1994) (internal 

quotation marks omitted) (quoting Daughtry v. Jet Aeration Co., 91 Wn.2d 704, 707, 592 P.2d 

631 (1979)). In the absence of findings on all material issues, the remedy is not for us make our 

own findings, but, rather, to remand the matter to the Board to make the necessary factual 

determinations and to determine whether SEFNCO’s unpreventable employee misconduct 

defense applies. See id. at 444-45.

The Board’s decision states that the Board did “not believe that this defense is applicable 

to SEFNCO in this case because of Mr. Nelson’s supervisory tasks and the facts presented.” CP at 

52. But the only finding of fact relevant to this defense was the finding that Nelson was a supervisor 

at the time of the incident. Although the Board’s references to Joranda Roofing 1 and Greater 

American Construction suggest that the Board understood that Nelson’s supervisory status did not 

alone preclude this defense, nothing in the Board’s decision addressed any of the statutory 

elements of the defense. Because Nelson’s supervisory status is not dispositive, the statutory 

elements are clearly material to whether the defense applies. Without additional findings related 

to the elements of the defense, we cannot determine whether the Board’s conclusion that the 

defense did not apply was supported by the evidence. Accordingly, we remand this matter back to 

the Board to make the necessary factual determinations and to determine whether SEFNCO’s 

unpreventable employee misconduct defense applies. See Federal Signal, 125 Wn.2d at 423, 444-

45.
No. 55458-5-II

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II. GENERAL VIOLATION: FIRST AID TRAINING

SEFNCO argues that the DLI failed to establish the general violation. SEFNCO contends 

that the DLI failed to prove that James was required to have first aid training under former WAC 

296-32-230(4)(c). We disagree.

The resolution of this issue requires us to interpret former WAC 296-32-230. We review 

WAC regulations de novo with the goal of determining and giving effect to the intent of the 

regulation. Erection Co., 160 Wn. App. at 201; Dep’t of Ecology v. Campbell & Gwinn, LLC, 146 

Wn.2d 1, 9, 43 P.3d 4 (2002).

“If an administrative rule or regulation is clear on its face, its meaning is to be derived 

from the plain language of the provision alone.” Dep’t of Licensing v. Cannon, 147 Wn.2d 41, 55, 

50 P.3d 627 (2002). We “will neither read matters into a [regulation] that are not there nor modify 

a [regulation] by construction.” Rushing v. ALCOA, Inc., 125 Wn. App. 837, 840, 105 P.3d 996 

(2005).

Former WAC 296-32-230, provided in part, 

Training. (1) Employers shall provide training in the various precautions and safe 

practices described in this section and shall insure that employees do not engage in 

the activities to which this chapter applies until such employees have received 

proper training in the various precautions and safe practices required by this 

section. . . .

(2) Where training is required, it shall consist of on-the-job training or 

classroom-type training or a combination of both.

. . . .

(4) Such training shall, where appropriate, include the following subjects:

(a) Recognition and avoidance of dangers relating to encounters with 

harmful· substances, and animal, insect, or plant life.

(b) Procedures to be followed in emergency situations, and

(c) First-aid training, including instruction in artificial respiration.

(Emphasis added).
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SEFNCO contends that former WAC 296-32-230(4)(c) required first aid training only 

“where appropriate” and that first aid training was not “appropriate” here because there was no 

evidence that James was required at the job site and, therefore, “there could be no reliance on his 

first-aid skills in the event of an accident.” Br. of Appellant at 36. But the plain language of the 

rule states that employees engaging in activities covered by this chapter must have the required 

training, and we will not read an additional requirement into the rule that is not there. Former WAC 

296-32-230(1); Rushing, 125 Wn. App. at 840. Regardless of whether James was required at this 

job site, there is no dispute that he was there, that he was engaging in work covered by these rules, 

and that he had not yet received his first aid training. Accordingly, this argument fails.

SEFNCO further argues that the DLI did not prove that all workers at a site, especially 

trainees, must be trained. The plain language of the rule states that it applies to employees engaging 

in the type of work in which James was engaging. The rule does not say that only some of the 

employees at the site must be trained; nor does it differentiate between trainees, probationary 

employees, or permanent employees. Again, we will not read language into a rule that is not there.

Rushing, 125 Wn. App. at 840. Accordingly, this argument fails.

Finally, SEFNCO argues that the DLI failed to prove that first aid training was 

“appropriate” because there was no proof that the job site was far from medical care. Br. of 

Appellant at 36. The rule does not state that first aid training is required only when the employees 

are working far from medical care, and we will not read such a requirement into the rule. Rushing, 

125 Wn. App. at 840. The need for emergency care could be instantaneous, so it is irrelevant how 

far away medical assistance is located. Again, this argument fails. SEFNCO does not show that 
No. 55458-5-II

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the Board erred when it concluded that SEFNCO had violated former WAC 296-32-230(4)(c). 

Accordingly, we affirm the citation for this violation.

CONCLUSION

We hold that (1) substantial evidence supports the finding that Nelson was a supervisor, 

(2) substantial evidence supports the Board’s constructive knowledge finding, (3) the Board’s 

findings are inadequate to allow review of its conclusion that the unpreventable employee 

misconduct defense did not apply, and (4) SEFNCO’s argument that the DLI failed to prove that 

James was required to have first aid training under former WAC 296-32-230(4)(c) has no merit. 

Accordingly, we remand this matter to the Board to make the necessary factual determinations and 

to determine whether SEFNCO’s unpreventable employee misconduct defense applies. We 

otherwise affirm.

A majority of the panel having determined that this opinion will not be printed in the 

Washington Appellate Reports, but will be filed for public record in accordance with RCW 

2.06.040, it is so ordered.

BASSETT, J.P.T.

I concur:

PRICE, J.
No. 55458-5-II

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MAXA, J. (dissenting in part) – To establish a serious violation of the Washington 

Industrial Safety and Health Act of 1973 (WISHA), chapter 49.17 RCW, the Department of 

Labor and Industries (DLI) must prove that “the employer knew or through the exercise of 

reasonable diligence could have known of the violative condition.” Ostrom Mushroom Farm 

Co. v. Dep’t of Labor & Indus., 13 Wn. App. 2d 262, 272, 463 P.3d 149 (2020). This 

requirement necessarily means that the violative condition must exist before an accident occurs. 

An employer cannot have actual or constructive knowledge of a violative condition that does not 

yet exist.

Here, the only violative condition occurred at the instant that Kenneth Nelson was 

injured. DLI has not alleged or proved that any safety violations existed until the bucket jumped 

and Nelson hit the energized power line. Therefore, SEFNCO (through its supervisor Nelson) 

did not know and could not have known of the violative condition before Nelson was injured. 

This means that DLI cannot satisfy the knowledge requirement.

The purpose of WISHA is to “assure, insofar as may reasonably be possible, safe and 

healthful working conditions for every [person] working in the state of Washington.” RCW 

49.17.010. Here, SEFNCO provided a safe workplace. Nelson’s injury did not occur because 

SEFNCO knew or should have known of an existing violative condition and failed to correct that 

condition. A violative condition did not cause the accident. Instead, the accident caused the 

violative condition. The injury occurred because Nelson made a mistake that caused a violation 

of a safety regulation. SEFNCO could not have been aware of the violation until after it had 

occurred.
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I would hold that DLI did not prove that SEFNCO had constructive knowledge of a 

violative condition before Nelson was injured. Therefore, I dissent regarding violation of former 

WAC 296-32-220(10)(a) (2007). I agree that DLI has shown a violation of the first aid training 

requirement, former WAC 296-32-230(4)(c) (2014).

MAXA, P.J.