IN THE COURTOFAPPEALS 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No. 73735-0-1 DIVISION ONE UNPUBLISHED OPINION FILED: March 7, 2016 POTELCO, INC.,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» 

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** 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. Afteran 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'sfindings. Becausewe 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-volttransmission 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 

### projectremained energized with 115,000volts. For mostoftheirlength, the lines
ran parallel, about 60 feet apart. Where the lines turned, however, they came 

### closertogether.1 Before beginning work on the project, Poteico surveyed the area. Itknew 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 supportthe structure. This required digging three anchor holes by hand and 

### filling them with gravel and concrete. The helicopterflew these materials in at the end of a "long line." The long line carried concrete in an aluminum hopper. The lasthole to befilled, anchorholeA, was so closeto the energized Bakerline 

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



### 1 The Board's unchallenged findings offact are verities on appeal. See Robelv. Roundup Corp., 148Wn.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 hopperand the long linewereconductive. When the helicopter approached forthe last drop ofthe day on June 26, two Poteico civil employees, Shane Wheeler and Alan Jesmer, were there to receive it. As Wheelerwentto unload the concrete, the long line touched Baker line 1. When Wheeler then touched the aluminum hopper, he received an 

### electricshock. He suffered serious injuries and spenttwoweeks in a burn unit. Because Poteicodid not challengethe abovefindings, they areverities on 

### appeal.2 Afterthe Department investigated the accident, it cited Poteico for four 

### violations of the Washington IndustrialSafety and Health Act of 1973 (WISHA), 

### chapter 49.17 RCW, regulations, with penaltiestotaling $21,000.3 This appeal involves two alleged serious violations: (1) failing to hold a conference when a

2Robel, 148Wn.2dat42. 3The citation described 4 violations: • Item No. 1-1A: A serious violation of WAC 296-45-055(5) 

### with a penaltyof$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 penaltyof$7,000; and
• Item No. 1-3: A serious violation ofWAC 296-45-325(1) with 

### a penaltyof$7,000.No. 73735-0-1/4 change in hazards occurred and (2) failing to ensure that only qualified employees worked "on or nearconductive objects brought into close proximity of high voltage lines." Poteico appealed to the Board. The Boardfound thefollowing facts: Poteico has two classes ofworkers: journeymen linemen trained to work


### on and close to energized lines and civilworkers who perform excavation and construction but have little knowledge of electrical work. Poteico gave civil workers training "of limited duration," which "basically trained the civilworkers to stay awayfrom energized lines." It did notteachthem "howto workon 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 thatthe long line" could conductelectricity. "Poteico either knew or, through the exercise of reasonable diligence, could have known, that.
. . neither Mr. Wheeler nor Mr. Jensen were . . . trained to beworking wheretheywere." Inparticular, neitherwas 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 ofelectrical 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 locationsNo. 73735-0-1 / 5
where Poteico had worked with a helicopterwith 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 theywould 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 reducedthe penaltyto $14,000. Poteico appealed to the trial court, which found that substantial evidence supported all the challenged Board findings offact. The trial court adopted the Board's conclusions oflaw as its own and affirmed its order. Poteico appeals. Analysis 

### WISHA governsjudicial review of a Board decision.4 This court directly reviews that decision based on the record before the Board.5 The Board's findings offact are conclusive ifthey are supported by substantial evidencewhen 

### viewed in light of the record as a whole.6 Substantial evidence is evidence sufficient to persuade a fair-minded person ofthe truth ofthe matter asserted.7 We view this evidence in the light most favorable to the party that prevailed in


### 4RCW49.17.150(1). 5 Mowat Constr. Co. v. Dep't of Labor & Indus., 148 Wn. App. 920, 925, 201 P.3d 407 (2009). 

### 6RCW49.17.150(1); Mowat Constr. Co.. 148Wn. App. at925. 7MowatConstr. Co., 148Wn. App. at925.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 oflaw.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 lawwrong. Becausethe record contains substantial evidence 

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

### supportthe conclusionsoflaw, weaffirm.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 supportthe Board'sfindings thatPotelco'sworkers


### were inadequatelytrainedto work and protectthemselvesfrom those hazards. WAC 296-45-325(1) provides, "[o]nlyqualified 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 otherattributes, is "familiarwith the construction of, or operation of such lines and/or equipmentthat concerns his/her position and
. . .fully aware ofthe 8Frank Coluccio Constr. Co. v. Dep't of Labor &Indus., 181 Wn. App. 25, 35, 329 P.3d 91 (2014). 9J.E. Dunn Nw. Inc. v. Dep't of Labor &Indus., 139 Wn. App. 35, 42, 156 P.3d 250 (2007). 

### 10Poteico haswaived anyargumentthatthe Board'sfindings of fact, if true, do not supportits 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 insulatedtoolsforworking on ornearexposed energized 

### parts ofelectricequipment."12 Poteico asserts that the Department cited it"solely because Wheelerwas 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. Itpoints out thatWheeler knew line 1 was energized at 115,000volts, knewthe 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 linewas nonconductivedid. 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" underthis regulation, to pass ajourney 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. Wheelerand Jesmer's testimonythus shows they did not satisfy the regulatory definition of "qualified employee" and were not "fully aware ofthe hazards connected" with the energized transmission linetheywere working near. Thus, substantial evidence supportsthe Board'sfinding thatWheelerand Jesmer "were nottrained to beworking wheretheywere." Knowledge ofLong 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." Itcontends that itreasonably relied on Salmon River's "assurances" thatits long line was notconductive. UnderWISHA, "a serious violation cannotexist if.
. .the employerdid not 

### actually know ofthe presence ofthe 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, andto take measures to preventthe occurrence.'"14 Potelco's challenge to the Board's knowledge finding lacks merit. First,
even ifPoteico had a "valid reason" to thinkthe 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 notwith 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 

### achievetheirpurposeof providingsafeworkingconditions."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 statementata meeting on June 25 thatthe long linewas made of Kevlar, 13 BD Roofing. Inc. v. Dep'tofLabor &Indus., 139Wn. App. 98, 108, 161 P.3d 387 (2007); RCW49.17.180(6). 

### 14 Erection Co. v. Dep'tofLabor&Indus.. 160Wn. 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 RCW49.17.180(6). 

### 15 BD Roofing. 139Wn. App. at 108; see also RCW49.17.180(6). 16 FrankColuccio Constr. Co.. 181 Wn. App. at36.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 itinquired into the conductivity ofthe long line. The managerof its civildivision, Eric Holmgren, said he did not know ifanyone tested the long line for conductivity. He also acknowledged that a lineman should make the determination ofwhetherornotan objectthatwillcome nearan 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 subcontractorwould negate the "reasonable diligence" requirement, the record does not indicate that Potelco's employees reasonably relied on the Salmon Riverpilot's statements. Instead, the record shows Poteico could have known the long line was 

### conductive had itmade a reasonable inquiry. First, Poteico is inthe business of 

### installing electrical facilities; it is reasonableto assume that itknows how to tell if a line is conductive. Second, Holmgren acknowledged that a lineman should determine ifan objectthat would be near an energized line conducts electricity. 

### Third, Holmgren testified that he knew Kevlar becomes conductive when dirty. Even ifdirtiness was not in fact the reason the long line was conductive, the likelihood ofdirtiness "aftertwo days ofwork 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, ImperialAluminum,18 stating, "In many situations inthe workplace, it is natural for an employerto rely upon the specialistto 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 itscontractedtasks.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 ofthe work site and helicopter line to Bakerline 1, the long line's specifications, and Poteico workers' lack of qualifications. Moreover, itwas 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 ofit, that itwas conductive, and that Poteico knew or, with reasonable diligence, could have known itwas conductive. 

### 18 24 BNAOSHC 2081 (No. 12-1129, 2013) (ALJ), 2013 WL6911242, at *9 (emphasis added). 19 ImperialAlum.. 2013 WL 6911242, at *7. 20 ImperialAlum.. 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 thatstatementdoes appearto be unsupported, the Board did notinclude it in its findings offact. And the Board had otherfacts 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 Bakerline 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 inthe hazards" of a job occurs, "a conference shall immediately be held at which time all affected 

### employees
. . .will be advised ofsuch hazards or change ofoperation." 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, whetherstraightor angled, was inthe '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 extentthe Board's statementwas erroneous, thaterrorwas harmless. 

### 22 Finding of fact 5 provides in part: -12-No. 73735-0-1/13
closerto Bakerline 1 than any otherplace Poteicoworked while a helicopterwas 

### in use.23 That fact alone provides substantial evidence of a change in hazard. We reject Potelco's challengesto the Board's "change inhazards" finding. Poteico further contends that even if itfaced a change in hazards, it did not know of that change and could not have known "through the exercise of reasonable diligence." Again, itsupports its argumentwith 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 

### thatwith 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 ofthis change inhazards. Remaining Assignments ofError 

### Finally, Poteicogenerally challenges several ofthe Board'sfindings offact and conclusions oflaw 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 workerhad to workto Bakerline 1 while a helicopterwas 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 otherangled structures during the project, a fact not indispute. 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 oferror again relate to its knowledge ofthe 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 rejectPotelco's remaining assignments of error.24 Conclusion The record contains substantial evidence of these findings. Poteico employees Wheelerand Jesmerlacked the competence and training thatWISHA 

### 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 closerto an energized transmission line than any otherproject sitewhere Poteicoworked



### 24 Poteico makes no argument that the circumstances surrounding the accident were not "likely to result in death, injuries involving permanent severe disability orchronic, irreversible illness." Nor does itmake an argumentthatthe 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 offact 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 considerunsupported argument). -14-No. 73735-0-1/15


### with a helicopter. Thus, that work at that site presented a change in hazards. Thesefindings, inturn, supportthe Board's conclusions of law. Weaffirm.

WE CONCUR: 

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