| IN RE: TOM WHITNEY CONSTRUCTION | ) | DOCKET NO. 01 W0262 |
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| CITATION & NOTICE NO. 303655658 | ) | DECISION AND ORDER |
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- APPEARANCES
- Employer, Tom Whitney Construction, by
- Tom Whitney, Owner
- Employees of Tom Whitney Construction, by
- Iron Workers Local #14,
- None
- Department of Labor and Industries, by
- The Office of the Attorney General, per
- Steven J. Nash, Assistant
The employer, Tom Whitney Construction, filed an appeal with the Board of Industrial Insurance Appeals on April 2, 2001, from Corrective Notice of Redetermination No. 303655658, issued by the Department of Labor and Industries on March 9, 2001. The order affirmed the following violations alleged by Citation and Notice No. 303655658: Item 1-1a, alleging a serious violation of WAC 296-155-24505(1) and assessing a penalty of $1,200; Item 1-1b, alleging a serious violation of WAC 296-155-24510 and assessing no penalty; Item 1-2, alleging a serious violation of WAC 296-155-490(2)(b)(v) and assessing a penalty of $1,200; Item 1-3, alleging a serious violation of WAC 296-155-24510(2)(a)(ix) and assessing a penalty of $1,200; and Item 1-4, alleging a serious violation of WAC 296-155-525(2)(h) and assessing a penalty of $800, for a total proposed penalty of $4,400. AFFIRMED AS MODIFIED.
DECISION
Pursuant to RCW 51.52.104 and RCW 51.52.106, this matter is before the Board for review and decision on a timely Petition for Review filed by the Department of Labor and Industries to a Proposed Decision and Order issued on August 9, 2002, in which Corrective Notice of Redetermination No. 303655658 was affirmed as modified.
The Board has reviewed the evidentiary rulings in the record of proceedings and finds that no prejudicial error was committed. The rulings are affirmed.
On August 9, 2000, the Department of Labor and Industries conducted an inspection of the Columbia Cold Storage building construction site in Othello, Washington. As a result of the inspection, the employer, Tom Whitney Construction, was cited with five serious violations of the [2] Washington Industrial Safety and Health Act. Item 1-1a is a serious violation for failing to have a written fall protection work plan on the work site. This is a violation of WAC 296-155-24505(1). Our industrial appeals judge found that the employer had a written fall protection work plan on the work site, and vacated the violation. We agree with this analysis. Our review of the record persuades us that the employer did indeed have a written fall protection work plan on the work site, and thus did not violate WAC 296-155-24505(1).
Item 1-2 is a serious violation, which alleges that workers working in a boom or basket from an aerial lift were not wearing a full body harness and did not have a lanyard attached to the boom or basket. This is a violation of WAC 296-155-490(2)(b)(v). Our industrial appeals judge found that the employer violated this safety provision, but adjusted the penalty by finding that the good faith element of the penalty calculation should be upgraded from fair to good. We agree with our industrial appeals judge that the good faith element of the penalty calculation is best described as good for this employer for this violation. We agree with the reduction set forth in the Proposed Decision and Order for the penalty for Item 1-2.
Item 1-3 is a serious violation of WAC 296-155-24510(2)(a)(ix). This violation alleges that workers using a full body harness are required to have secured anchorages capable of supporting 5,000 pounds per employee, except when self-protracting lifelines or other deceleration devices are used, which limit free fall to 2 feet, in which case anchorages shall be capable of withstanding 3,000 pounds. This violation alleges that the anchor point that was set up for the employees did not meet the requirement for the 5,000-pound limit. We have reviewed the record and concur with our industrial appeals judge that this violation was committed. Our industrial appeals judge reduced the probability factor in computing the penalty for this violation from a 3 to a 2. Our review of the record persuades us that our industrial appeals judge was correct in reclassifying the probability on this violation. Additionally, the good faith element of the penalty calculation should be reclassified from fair to good. We agree with the reduction of the penalty as set forth in the Proposed Decision and Order for this violation.
Violation 1-4 is a serious violation of WAC 296-155-525(2)(h). This violation alleges that an operator was swinging and suspending loads over workers on the roof. Our review of the record indicates that this violation was committed. We agree with our industrial appeals judge. The penalty calculation set forth in the Proposed Decision and Order, which modified the good faith from fair to good, and resulted in a penalty reduction, is correct. [3]
The remaining controversy in this matter focuses on Item 1-1b, which is a serious violation of WAC 296-155-24510. This violation alleges that the employees were working at a height of 25 feet or more without the use of fall protection, as required by the Washington Administrative Code. Our review of the record persuades us that our industrial appeals judge was correct that this violation was committed. The Department grouped Items 1-1a and 1-1b and assessed a penalty for the grouped violations in the amount of $1,200. Our industrial appeals judge, however, did not provide a penalty for this serious violation.
Our industrial appeals judge interpreted the Department action of grouping Items 1-1a and 1-1b as assessing a penalty only for Item 1-1a and no penalty for Item 1-1b. Since Item 1-1a was vacated, our industrial appeals judge found that the Department had failed to assess a penalty for Item 1-1b and affirmed that item without any penalty assessment.
The Department believes that the grouped violations of 1-1a and 1-1b collectively were assessed the penalty set out for the group and that Item 1-1b should be affirmed with a penalty. We agree with the Department.
Item 1-1b is cited as a serious violation. We find on this record that it is a serious violation. RCW 49.17.180(2) requires that all serious violations must be assessed a penalty. Although we vacate Item 1-1a, the only reduction in the penalty for Item 1-1b will be the adjustment of good faith, modified from fair to good. This is because Item 1-1b, standing alone, supports the proposed penalty for the two grouped violations.
Corrective Notice of Redetermination No. 303655658, issued by the Department of Labor and Industries on March 9, 2001, is affirmed as modified, as described above. As modified, the violations by Tom Whitney Construction on August 9, 2000, result in a total penalty to be assessed of $2,000.
FINDINGS OF FACT
1. On August 9, 2000, compliance safety and health officer Jeffrey L. Krausse of the Department of Labor and Industries conducted an inspection of the Columbia Cold Storage construction site in Othello, Washington, where Tom Whitney Construction was installing a roof as a subcontractor. On August 10, 2000, Mr. Krausse conducted a closing conference with representatives from Tom Whitney Construction. On January 10, 2001, the Department issued Citation and Notice No. 303655658, alleging the following violations: in Item 1-1a, a serious violation of WAC 296-155-24505(1) with a penalty of $1,200; in Item 1-1b, a serious violation of WAC 296-155-24510 with no penalty; in Item 1-2, a serious violation of WAC 296-155-490(2)(b)(v) with a corresponding penalty of $1,200; in Item 1-3, a serious violation of [4] WAC 296-155-24510(2)(a)(ix) with a penalty of $1,200; and in Item 1-4, a serious violation of WAC 296-155-525(2)(h) with a penalty of $800, for a total proposed penalty of $4,400.
On January 30, 2001, Tom Whitney Construction mailed its appeal from Citation and Notice No. 303655658 to the Safety Division of the Department of Labor and Industries. On February 2, 2001, the Department issued a Notice of Reassumption of Jurisdiction.
On March 9, 2001, the Department issued Corrective Notice of Redetermination No. 303655658, affirming each of the violations and penalties assessed by Citation and Notice No. 303655658. On March 29, 2001, Tom Whitney Construction placed its Notice of Appeal from Corrective Notice of Redetermination No. 303655658 in the mail. On April 2, 2001, the Department received the employer's Notice of Appeal. On April 3, 2001, the Board issued a Notice of Filing of Appeal for the appeal, which had been assigned Docket No. 01 W0262.
2. On August 9, 2000, Tom Whitney Construction had developed and implemented an adequate site-specific written fall protection work plan for its work on the Columbia Cold Storage project at Othello, Washington.
3. On August 9, 2000, Tom Whitney Construction employees were working on a roof, the eve of which was 26 feet from the ground and the peak of the roof 36 feet from the ground. The workers were wearing body harnesses with lanyards, but the lanyards were not secured in any fashion to prevent the workers from falling to the ground. The employees' actions could have resulted in substantial physical harm to themselves. Tom Whitney Construction had knowledge of the hazard presented by the employees' actions and that there was a substantial probability that physical harm could result.
4. The violation committed by Tom Whitney Construction employees by failing to secure them to the roof was cited as Item 1-1b and was grouped with Item 1-1a.
5. The severity of any industrial injury resulting from the employees' failure to secure themselves to the roof is most adequately rated as a 6 on an ascending scale of 1 to 6 because the ground below the roof was concrete flooring and a worker could be seriously injured or killed if he were to fall from the roof to the ground.
6. The probability of an accident occurring due to the employee's failure to secure himself to the roof is most adequately described as 3 on an ascending scale of 1 to 6 because the metal roof was slick from dust. [5]
7. The gravity of the violation cited in Item 1-1b is most adequately rated as 18 (6x3), for a base penalty of $3,000.
8. Tom Whitney Construction demonstrated good "good faith" in that it had an appropriate site specific fall protection plan in place for the job, all the proper equipment had been provided to the employees prior to beginning the job, and the employees had all been given instructions on the proper use of the safety equipment. The corresponding deduction and penalty for good faith should be 20 percent, or $600 for Item 1-1b.
9. On August 9, 2000, Tom Whitney Construction had less than 25 employees working in the State of Washington, which entitled Tom Whitney Construction to a 60 percent or $1,800 deduction for violation of Item 1-1b.
10. The appropriate adjusted penalty for Item 1-1b is $600.
11. Tom Whitney Construction's history was most appropriately rated as average with no corresponding penalty reduction because, although Tom Whitney Construction had a lower than average experience rating, it had been cited for similar violations three years earlier.
12. On August 9, 2000, a Tom Whitney Construction employee was working from a basket on a man-lift approximately 26 feet from the ground. The employee was not secured to the basket in any manner to prevent him from falling from the basket to the ground. Tom Whitney Construction had knowledge of the hazard presented by the employee's actions and that there was a substantial probability that physical harm could result.
13. The violation committed by the Tom Whitney Construction employee by his failure to secure himself to the basket is best classified as serious because there was a substantial probability of serious injury if the employee was to fall 26 feet from the basket to the ground.
14. The severity of any industrial injury resulting from the employees' failure to secure themselves to the basket is most adequately rated as 6 on an ascending scale of 1 to 6 because the ground below the basket was hard-packed earth and a worker could be seriously injured or killed if he were to fall 26 feet from the roof to the ground.
15. The probability of an accident occurring due to the employee's failure to secure himself to the basket is most adequately described as 3 on an ascending scale of 1 to 6 because the employee was crawling in and out of the basket to and from the roof, and the roof was somewhat slick.
16. The gravity of the violation cited in Item 1-2 is most adequately rated as 18 (6x3) for a base penalty of $3,000. [6]
17. Tom Whitney Construction demonstrated good "good faith" in that it had an appropriate site specific fall protection plan in place for the job, all the proper equipment had been provided to the employees prior to beginning the job, the employees had all been given instruction on the proper use of the safety equipment, and when Heith E. Belton had left the jobsite all employees were properly tied off to appropriate anchor points, and the job was being performed in a safe manner. The corresponding deduction in penalty for good faith should be 20 percent, or $600 for Item 1-2.
18. Tom Whitney Construction's history was most appropriately rated as average with no corresponding penalty reduction because, although Tom Whitney Construction had a lower than average experience rating, Tom Whitney Construction had been cited for similar violations three years earlier.
19. On August 9, 2000, Tom Whitney Construction had less than
25 employees working in the State of Washington, entitling Tom Whitney Construction to a 60 percent, or $1,800 deduction for the violation cited as Item 1-2.
20. The appropriate adjusted penalty for Item 1-2 is $600.
21. On August 9, 2000, Tom Whitney Construction employees were using C-clamps as attachment points for body harnesses and were not using a system that was capable of supporting 5,000 pounds per employee. Tom Whitney Construction had knowledge of the hazard presented by the employees' actions and that there was a substantial probability that physical harm could result.
22. The severity of any industrial injury resulting from the employees' failure to use attachment points for body harnesses that were capable of supporting 5,000 pounds per employee is most adequately rated as 6 on an ascending scale of 1 to 6 because the ground below the roof was cement inside the building and hard-packed earth outside the building, and a worker could be seriously injured or killed if he were to fall 26 to 35 feet from the roof to either surface.
23. The probability of an accident occurring due to the employees' failure to use attachment points for body harnesses that were capable of supporting 5,000 pounds per employee is most adequately rated as 2 on an ascending scale of 1 to 6 because the C-clamps used would have reduced the risk of falling to the ground below, resulting from the failure to tie off to any anchor point at all.
24. The gravity of the violation cited as Item 1-3 is best rated as 12 (6x2) for a base penalty of $2,000. [7]
25. Tom Whitney Construction is entitled to a 60 percent or $1,200 deduction for size and a 20 percent or $400 deduction for a good faith rating of good, resulting in an adjusted penalty of $400 for Item 1-3.
26. On August 9, 2000, a Tom Whitney Construction employee suspended a load from a crane above another worker. Tom Whitney Construction had knowledge of the hazard presented by the employee's actions and that there was a substantial probability that physical harm could result from the violation cited as Item 1-4.
27. The severity of any industrial injury that could result from the load being suspended above a worker is best rated as 6 on an ascending scale of 1 to 6 because the load could have knocked the worker from the basket, causing a fall of 26 feet to hard-packed ground or the load itself could have fallen onto the worker, resulting in serious injury or death.
28. The probability of an injury occurring due to the load being suspended above a worker is best rated as 2 because, although the likelihood that the load would knock the worker from the basket is low, there is the additional possibility that the load could injure the worker by falling on him.
29. The gravity of the violation cited as Item 1-4 is best rated as 12 (6x2) for a base penalty of $2,000.
30. Tom Whitney Construction is entitled to a 60 percent or $1,200 deduction for size and a 20 percent or $400 deduction for a good faith rating of good, resulting in an adjusted penalty of $400 for Item 1-4.
31. The appropriate total aggregate penalty to be assessed against Tom Whitney Construction for all violations committed is $2,000.
CONCLUSIONS OF LAW
- The Board of Industrial Insurance Appeals has jurisdiction over the parties to and subject matter of this appeal, which was timely filed.
- Item 1-1a: No violation of WAC 296-155-24505(1) has been established.
- Item 1-1b: The failure of Tom Whitney Construction to ensure that all employees exposed to a hazard of falling from a location 10 feet or more in height were wearing appropriate fall restraint devices constitutes a serious violation of WAC 296-155-24510.
- Item 1-2: Tom Whitney Construction's failure to ensure that all employees working in an aerial boom or basket wear a full body harness and lanyard attached to the boom or basket constitutes a serious violation of WAC 296-155-490(2)(b)(v). [8]
- Item 1-3: Tom Whitney Construction employees' failure to use attachment points for body harness systems capable of supporting 5,000 pounds per employee constitutes a serious violation of WAC 296-155-24510(2)(a)(ix).
6. Item 1-4: Tom Whitney Construction employees' actions of carrying or suspending a load on a crane over people constitute a serious violation of WAC 296-155-525(2)(h).
7. Corrective Notice of Redetermination No. 303655658, issued on March 9, 2001, is modified as follows: Grouped Items 1-1a, alleging a serious violation of WAC 296-155-24505(1) and assessing a penalty of $1,200 for the grouped violations, is vacated; Grouped Item 1-1b, alleging a serious violation of WAC 296-155-24510 and assessing a $1,200 penalty for the grouped violations, is modified to assess a penalty of $600; Item 1-2, alleging a serious violation of WAC 296-155-490(2)(b)(v) and assessing a penalty of $1,200, is modified to assess a penalty of $600; Item 1-3, alleging a serious violation of WAC 296-155-24510(2)(a)(ix) and assessing a penalty of $1,200, is modified to assess a penalty of $400; and Item 1-4, alleging a serious violation of WAC 296-155-525(2)(h) and assessing a penalty of $800, is modified to assess a penalty of $400. As modified, Corrective Notice of Redetermination No. 303655658 is affirmed, with the total penalty assessed reduced from $4,400 to $2,000.
It is so ORDERED.
Dated this 22nd day of November, 2002.
BOARD OF INDUSTRIAL INSURANCE APPEALS
/s/
THOMAS E. EGAN Chairperson
/s/
FRANK E. FENNERTY, JR. Member