IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

No. 73735-0-1

DIVISION ONE

UNPUBLISHED OPINION

FILED: March 7, 2016

POTELCO, INC.,

v.

Appellant,

WASHINGTON STATE DEPARTMENT

OF LABOR & INDUSTRIES,

Respondent.

era c/V<5 .; "•"tt2 cr> 3>*i

—«_j

rnrn

1

—1 ••cor"" i^-oft) 3» %g& :rs~ \0 GS$j| **

CO d$*W-'''-'• vO 2S:f5i\

Leach, J. — Poteico Inc. challenges a Board of Industrial Insurance

Appeals (Board) decision affirming its citation for two serious violations. After an

employee was injured in a work site accident, the Department of Labor and

Industries (Department) cited Poteico for allowing two unqualified employees to

work near a high-voltage transmission line and failing to hold a safety meeting

when work site hazards changed. The Board found facts supporting those

citations, and the trial court found that substantial evidence supported the

Board's findings. Because we agree, we affirm.

Background

Poteico Inc. appeals a trial court order affirming a Department citation.

The Department cited Poteico after an accident that occurred in June 2012 as

Poteico replaced a high-voltage transmission line for Puget Sound Energy.

Poteico was dismantling an existing 115,000-volt transmission line, Baker line 2,
No. 73735-0-1 / 2

from the generating plant at Baker Dam to a substation 24 miles away in Sedro

Woolley. This required taking down and rebuilding the structures that supported

the line. A second line, Baker line 1, ran parallel to Baker line 2 and during the

project remained energized with 115,000 volts. For most of their length, the lines

ran parallel, about 60 feet apart. Where the lines turned, however, they came

closer together.1

Before beginning work on the project, Poteico surveyed the area. It knew

where to build each of the new structures because Puget Sound Energy had

designated the locations of the structures and their anchor points. Some

structures were inaccessible by road, so Poteico had to arrange for a helicopter

to fly in materials for constructing the new structures. It used the services of

Salmon River Helicopters on two days, June 25 and June 26, 2012.

On June 26, a Poteico civil crew was building "structure 4/3" at a point

where Baker lines 1 and 2 turned. To do so, the crew had to build three anchors

to support the structure. This required digging three anchor holes by hand and

filling them with gravel and concrete. The helicopter flew these materials in at

the end of a "long line." The long line carried concrete in an aluminum hopper.

The last hole to be filled, anchor hole A, was so close to the energized Baker line

1 that the long line would come within five feet four inches of it. This was the

1 The Board's unchallenged findings of fact are verities on appeal. See

Robelv. Roundup Corp., 148 Wn.2d 35, 42, 59 P.3d 611 (2002).

-2-
No. 73735-0-1 / 3

closest to Baker line 1 that any Poteico worker had to work while a helicopter

was in use.

The long line "was either made of, or wrapped in, Kevlar and had an

extension cord inside of it" to allow the helicopter to drop the load in an

emergency. Both the aluminum hopper and the long line were conductive.

When the helicopter approached for the last drop of the day on June 26,

two Poteico civil employees, Shane Wheeler and Alan Jesmer, were there to

receive it. As Wheeler went to unload the concrete, the long line touched Baker

line 1. When Wheeler then touched the aluminum hopper, he received an

electric shock. He suffered serious injuries and spent two weeks in a burn unit.

Because Poteico did not challenge the above findings, they are verities on

appeal.2

After the Department investigated the accident, it cited Poteico for four

violations of the Washington Industrial Safety and Health Act of 1973 (WISHA),

chapter 49.17 RCW, regulations, with penalties totaling $21,000.3 This appeal

involves two alleged serious violations: (1) failing to hold a conference when a

2 Robel, 148Wn.2dat42.

3 The citation described 4 violations:

• Item No. 1-1A: A serious violation of WAC 296-45-055(5)

with a penalty of $7,000;

• Item No. 1-1B: A serious violation of WAC 296-45-065(1)

with no penalty;

• Item No. 1-2: A serious violation of WAC 296-45-67507(2)

with a penalty of $7,000; and

• Item No. 1-3: A serious violation of WAC 296-45-325(1) with

a penalty of $7,000.
No. 73735-0-1/4

change in hazards occurred and (2) failing to ensure that only qualified

employees worked "on or near conductive objects brought into close proximity of

high voltage lines."

Poteico appealed to the Board. The Board found the following facts:

Poteico has two classes of workers: journeymen linemen trained to work

on and close to energized lines and civil workers who perform excavation and

construction but have little knowledge of electrical work. Poteico gave civil

workers training "of limited duration," which "basically trained the civil workers to

stay away from energized lines." It did not teach them "how to work on energized

lines or how to protect themselves from hazards posed by working in close

proximity to energized electrical lines."

"Poteico either knew or, through the exercise of reasonable diligence,

could have known that the long line" could conduct electricity.

"Poteico either knew or, through the exercise of reasonable diligence,

could have known, that. . . neither Mr. Wheeler nor Mr. Jensen were . . . trained

to be working where they were." In particular, neither was

trained in the skills and techniques necessary ... to determine the

nominal voltage of exposed live parts, the minimum approach

distances corresponding to the voltages to which they were

exposed, and the proper use of the special precautionary

techniques, personal protective equipment, insulating and shielding

materials, and insulated tools for working on or near exposed

energized parts of electrical equipment.

The work at structure 4/3 was a change in hazards for Potelco's workers

because that structure was so much closer to Baker line 1 than other locations
No. 73735-0-1 / 5

where Poteico had worked with a helicopter with a conductive long line. Poteico

either knew or could have known this, and it should have held a conference

before work started to make sure all workers understood the hazards they would

face and precautions they needed to take.

Finally, Wheeler and Jesmer "did not have the training to appreciate the

hazards, and were not utilizing personal protective equipment that could have

reduced the hazards."

The Board found two violations occurred, found two other alleged

violations did not, and reduced the penalty to $14,000.

Poteico appealed to the trial court, which found that substantial evidence

supported all the challenged Board findings of fact. The trial court adopted the

Board's conclusions of law as its own and affirmed its order. Poteico appeals.

Analysis

WISHA governs judicial review of a Board decision.4 This court directly

reviews that decision based on the record before the Board.5 The Board's

findings of fact are conclusive if they are supported by substantial evidence when

viewed in light of the record as a whole.6 Substantial evidence is evidence

sufficient to persuade a fair-minded person of the truth of the matter asserted.7

We view this evidence in the light most favorable to the party that prevailed in

4 RCW 49.17.150(1).

5 Mowat Constr. Co. v. Dep't of Labor & Indus., 148 Wn. App. 920, 925,

201 P.3d 407 (2009).

6 RCW 49.17.150(1); Mowat Constr. Co.. 148 Wn. App. at 925.

7 Mowat Constr. Co., 148 Wn. App. at 925.
No. 73735-0-1 / 6

front of the Board—here, the Department.8 If this court determines that

substantial evidence supports the Board's findings, it then decides if those

findings support the Board's conclusions of law.9

Poteico challenges nine findings of fact and five conclusions of law,

asserting that the record lacks substantial evidence for these findings, making

the conclusions of law wrong. Because the record contains substantial evidence

to support each of the challenged findings of fact and those findings of fact

support the conclusions of law, we affirm.10

Employee Qualifications

Poteico contends Wheeler and Jesmer were trained in electrical safety

and understood the hazards they faced. It asserts, by implication, that

substantial evidence does not support the Board's findings that Potelco's workers

were inadequately trained to work and protect themselves from those hazards.

WAC 296-45-325(1) provides, "[o]nly qualified employees may work on or

with exposed energized lines or parts of equipment" or "in areas containing

unguarded, uninsulated energized lines or parts of equipment operating at 50

volts or more." WAC 296-45-035 defines a "qualified employee" as one who,

among other attributes, is "familiar with the construction of, or operation of such

lines and/or equipment that concerns his/her position and . . . fully aware of the

8 Frank Coluccio Constr. Co. v. Dep't of Labor & Indus., 181 Wn. App. 25,

35, 329 P.3d 91 (2014).

9 J.E. Dunn Nw. Inc. v. Dep't of Labor & Indus., 139 Wn. App. 35, 42, 156

P.3d 250 (2007).

10 Poteico has waived any argument that the Board's findings of fact, if

true, do not support its conclusions of law. RAP 10.3(a)(6).

-6-
No. 73735-0-1 / 7

hazards connected therewith."11 And WAC 296-45-065(1) requires that a

"qualified employee" must also "be trained and competent in" certain skills and

techniques, including distinguishing exposed live parts from other parts of

electrical equipment, determining those parts' nominal voltage, determining

minimum approach distances for particular voltages, and using "the special

precautionary techniques, personal protective equipment, insulating and

shielding materials, and insulated tools for working on or near exposed energized

parts of electric equipment."12

Poteico asserts that the Department cited it "solely because Wheeler was

not a lineman." It contends that not only a lineman but any employee who

understands the hazards of his position satisfies the definition of a qualified

employee under the circumstances. It points out that Wheeler knew line 1 was

energized at 115,000 volts, knew the minimum approach distance for a 115,000-

volt line, and understood that he should not work with any conductive object

within that distance. Poteico asserts that Wheeler's alleged lack of training did

not prevent him from recognizing the hazard; Salmon River's representation that

the long line was nonconductive did.

Both the record and the text of the WISHA regulations contradict these

assertions. Poteico incorrectly claims that any employee who understands the

11 Poteico concedes that Wheeler and Jesmer did not satisfy the other

way to be "qualified" under this regulation, to pass a journey status examination.

WAC 296-45-035.

12 See also WAC 296-45-035 ("An employee must have the training

required by WAC 296-45-065(1) in order to be considered a qualified

employee.").

-7-
No. 73735-0-1 / 8

hazards of his position is a "qualified employee." WAC 296-45-065(1) contains

four specific training and competency requirements that Wheeler and Jesmer

admitted they did not meet. Wheeler and Jesmer each admitted to a lack of

awareness of the hazards posed by the long line coming near the energized

Baker line 1. They admitted they did not know how to determine the nominal

voltage of a live line. And they admitted they did not know how to use insulating

and shielding materials or insulated tools when working near an exposed

energized wire. Wheeler and Jesmer's testimony thus shows they did not satisfy

the regulatory definition of "qualified employee" and were not "fully aware of the

hazards connected" with the energized transmission line they were working near.

Thus, substantial evidence supports the Board's finding that Wheeler and Jesmer

"were not trained to be working where they were."

Knowledge of Long Line's Conductivity

Next, Poteico challenges the Board's finding that it "either knew or,

through the exercise of reasonable diligence, could have known that the long

line . . . was conductive." It contends that it reasonably relied on Salmon River's

"assurances" that its long line was not conductive.

Under WISHA, "a serious violation cannot exist if. . . the employer did not

actually know of the presence of the violation or. . . the employer could not with

the exercise of reasonable diligence have known of the presence of the

-8-
No. 73735-0-1 / 9

violation."13 "'Reasonable diligence involves several factors, including an

employer's obligation to inspect the work area, to anticipate hazards to which

employees may be exposed, and to take measures to prevent the occurrence.'"14

Potelco's challenge to the Board's knowledge finding lacks merit. First,

even if Poteico had a "valid reason" to think the long line was nonconductive, that

would not by itself negate the Board's finding that with reasonable diligence,

Poteico could have discovered the truth. RCW 49.17.180(6) imposes a duty to

inspect. Poteico cites no authority for its contention that its unquestioning

reliance on a contractor's statement meant it could not know of violative

conditions. In effect, Potelco's interpretation would "render[ ] the phrase 'and

could not with the exercise of reasonable diligence' superfluous" in cases where

an employer claims reliance on a third party's statement.15 This would conflict

with our practice of "construing] WISHA statutes and regulations liberally to

achieve their purpose of providing safe working conditions."16

Second, viewed in the light most favorable to the Department, the record

does not support Potelco's contentions that it reasonably relied on a statement

by the Salmon River pilot. The "assurance[ ]" Poteico points to is the pilot's

alleged statement at a meeting on June 25 that the long line was made of Kevlar,

13 BD Roofing. Inc. v. Dep't of Labor & Indus., 139 Wn. App. 98, 108, 161

P.3d 387 (2007); RCW 49.17.180(6).

14 Erection Co. v. Dep't of Labor & Indus.. 160 Wn. App. 194, 206-07, 248

P.3d 1085 (2011) (internal quotation marks omitted) (quoting Kokosing Constr.

Co. v. Occupational Safety & Hazard Review Comm'n. 232 F. App'x 510, 512

(6th Cir. 2007)); see also RCW 49.17.180(6).

15 BD Roofing. 139 Wn. App. at 108; see also RCW 49.17.180(6).

16 Frank Coluccio Constr. Co.. 181 Wn. App. at 36.
No. 73735-0-1/10

a nonconductive material. Neither Wheeler nor Jesmer heard this statement,

and neither claimed to know the rope's material. And Poteico offered no

evidence that it inquired into the conductivity of the long line. The manager of its

civil division, Eric Holmgren, said he did not know if anyone tested the long line

for conductivity. He also acknowledged that a lineman should make the

determination of whether or not an object that will come near an energized power

line conducts electricity. Yet Poteico offered no evidence that the pilot was a

lineman or had any electrical safety training. Thus, even assuming that

reasonable reliance on a subcontractor would negate the "reasonable diligence"

requirement, the record does not indicate that Potelco's employees reasonably

relied on the Salmon River pilot's statements.

Instead, the record shows Poteico could have known the long line was

conductive had it made a reasonable inquiry. First, Poteico is in the business of

installing electrical facilities; it is reasonable to assume that it knows how to tell if

a line is conductive. Second, Holmgren acknowledged that a lineman should

determine if an object that would be near an energized line conducts electricity.

Third, Holmgren testified that he knew Kevlar becomes conductive when dirty.

Even if dirtiness was not in fact the reason the long line was conductive, the

likelihood of dirtiness "after two days of work delivering gravel and concrete in a

-10-
No. 73735-0-1 /11

muddy location" was enough to render unreasonable Potelco's assumption that

the line was nonconductive.17

Poteico cites a decision by the Office of Safety Health Review

Commission, Imperial Aluminum,18 stating, "In many situations in the workplace,

it is natural for an employer to rely upon the specialist to perform work related to

that specialty safely in accordance with OSHA standards." In that case, "[t]he

cited hazard was the result of operator error on the part of the outside

Contractor."19 The employer "reasonably relied" on the contractor to safely

perform its contracted tasks.20

This federal administrative decision does not aid Poteico. Here, the cited

hazards came not from the contractor's performance but from circumstances

Poteico knew of or should have known about the closeness of the work site and

helicopter line to Baker line 1, the long line's specifications, and Poteico workers'

lack of qualifications. Moreover, it was not "natural," in this situation, to rely on

the outside contractor's expertise because Poteico had the expertise about

electrical work.21

17 The Board did not make a fact finding that the line was dirty or that

dirtiness made it conductive. Rather, the Board found that the line had an

extension cord inside of it, that it was conductive, and that Poteico knew or, with

reasonable diligence, could have known it was conductive.

18 24 BNA OSHC 2081 (No. 12-1129, 2013) (ALJ), 2013 WL 6911242, at

*9 (emphasis added).

19 Imperial Alum.. 2013 WL 6911242, at *7.

20 Imperial Alum.. 2013 WL 6911242, at *8.

21 Poteico also claims that no evidence supports the Board's statement

that Salmon River and Poteico had a contract describing the long line's

specifications. Though that statement does appear to be unsupported, the Board

did not include it in its findings of fact. And the Board had other facts on which to

-11-
No. 73735-0-1/12

Change in Hazard

Poteico also challenges the Board's finding that the work on structure 4/3

was a change in hazard due to the structure's closeness to Baker line 1. Poteico

asserts that the Board therefore erred in concluding that Poteico violated WAC

296-45-67507(2).

That regulation requires that whenever a "change in the hazards" of a job

occurs, "a conference shall immediately be held at which time all affected

employees . . . will be advised of such hazards or change of operation." Poteico

held a meeting the day before the accident to address general safety issues in

working with a helicopter, but that meeting did not discuss electrocution risks or

any potential hazard from a long line coming close to or touching an energized

line.

Poteico does not contend that it held a conference before working on

structure 4/3. Instead, it contends that the work at structure 4/3 was not a

change in hazard because Salmon River delivered materials to other angled

structures before delivering to structure 4/3. It also points out that "every

structure, whether straight or angled, was in the 'vicinity' of line No. 1."

While true, these facts miss an important point. The Board based its

"change in hazards" finding not only on the angle of the turn but, more

importantly, on the work site's closeness to Baker line 1.22 Structure 4/3 was

base its conclusion that Poteico knew or could have known of its violations. To

the extent the Board's statement was erroneous, that error was harmless.

22 Finding of fact 5 provides in part:

-12-
No. 73735-0-1/13

closer to Baker line 1 than any other place Poteico worked while a helicopter was

in use.23 That fact alone provides substantial evidence of a change in hazard.

We reject Potelco's challenges to the Board's "change in hazards" finding.

Poteico further contends that even if it faced a change in hazards, it did

not know of that change and could not have known "through the exercise of

reasonable diligence." Again, it supports its argument with its alleged reliance on

Salmon River's statement that the long line was nonconductive. Since the

energized line was high in the air, Poteico reasons, the horizontal closeness of

that line to anchor hole A would not matter if the long line was actually

nonconductive. But, as we said earlier, the record supports the Board's finding

that with reasonable diligence Poteico could have known the long line conducted

electricity. Since Poteico also knew the relative locations of anchor hole A and

Baker line 1 before starting work, the record contains substantial evidence that

Poteico knew or could have known of this change in hazards.

Remaining Assignments of Error

Finally, Poteico generally challenges several of the Board's findings of fact

and conclusions of law because "substantial evidence shows that Poteico did not

The last anchor hole . . . .was located at a point so that the

aluminum hopper. . . could be as close as five feet four inches

from Baker line 1 . . . , which was the closest point that any

Poteico worker had to work to Baker line 1 while a helicopter was

used.

23 Poteico contests this fact only in a footnote in its reply brief, and the

record does not support its argument. Poteico cites testimony by Holmgren that

simply states Poteico worked at other angled structures during the project, a fact

not in dispute. Moreover, Holmgren's testimony shows that he did not know how

close structure 4/3 was to Baker line 1.

-13-
No. 73735-0-1 /14

violate the cited standards." Potelco's only arguments in support of these

assignments of error again relate to its knowledge of the long line's conductivity.

As we have said, the record contains substantial evidence that with reasonable

diligence Poteico could have known that the long line was conductive. We

therefore reject Potelco's remaining assignments of error.24

Conclusion

The record contains substantial evidence of these findings. Poteico

employees Wheeler and Jesmer lacked the competence and training that WISHA

regulations require and so were not qualified to do the work they were doing

when Wheeler was injured. With reasonable diligence, Poteico could have

known the helicopter's long line was conductive, contrary to the helicopter pilot's

alleged statement. The work site where the accident occurred was closer to an

energized transmission line than any other project site where Poteico worked

24 Poteico makes no argument that the circumstances surrounding the

accident were not "likely to result in death, injuries involving permanent severe

disability or chronic, irreversible illness." Nor does it make an argument that the

Board's finding that Poteico did not cooperate with the inspection and showed

poor good faith effort to comply with the regulations was unsupported. Poteico

thus waived its challenges to findings of fact 13 and 15. RAP 10.3(a)(6); Lodis v.

Corbis Holdings. Inc.. 172 Wn. App. 835, 862, 292 P.3d 779 (2013) (declining to

consider unsupported argument).

-14-
No. 73735-0-1/15

with a helicopter. Thus, that work at that site presented a change in hazards.

These findings, in turn, support the Board's conclusions of law. We affirm.

WE CONCUR:

]QsC(f^sr^M C>V

y

-15-