No. 60279-9-I.The Court of Appeals of Washington, Division One.
June 23, 2008.
Appeal from a judgment of the Superior Court for King County, No. 06-2-24985-2, Richard A. Jones, J., entered June 8, 2007.
Affirmed by unpublished per curiam opinion.
PER CURIAM.
When challenging the decision of the Board of Industrial Insurance Appeals (the Board) in court, a party must have raised the same arguments before the Board. For the first time on appeal, Ceccanti Construction, Inc. (Ceccanti) argues that the Department of Labor and Industries (the Department) did not establish that Ceccanti knew or should have known about the serious violation of the Washington Industrial Safety and Health Act (WISHA), chapter 49.17 RCW and Washington Administrative Code (WA) 296-155-305(9)(b). We affirm the Board’s determination that Ceccanti committed a serious violation of WAC 296-155-305(9)(b).
Laurie Minnick worked as a traffic flagger for Ceccanti for approximately six years. On February 10, 2005, Minnick was working as the flagger on a landscaping project along Pacific Highway South in Des Moines. The primary activity that day was covering areas with bark which required a front loader to move the bark across three lanes of traffic. Minnick was responsible for temporarily stopping traffic for the front loader.
Lee Pyfrom, a safety and health compliance officer with the Department observed Minnick standing in a lane of traffic before stopping the vehicles. Pyfrom took photographs of Minnick while she was standing in the lane of moving traffic.
The Department issued a citation against Ceccanti for committing a serious violation of WAC 296-155-305(9)(b). A serious violation
exist[s] in a work place if there is a substantial probability that death or serious physical harm could result from a condition . . . unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.
RCW 49.17.180(b). WAC 296-155-305(9)(b) requires that “[f]laggers stand either on the shoulder adjacent to the road user being controlled or in the closed lane prior to stopping road users. A flagger must only stand in the lane being used by moving road users after road users have stopped.”
Ceccanti appealed the citation. The Department affirmed the citation and assessed a monetary penalty. Ceccanti filed a petition for a hearing before an industrial appeals judge (IAJ).
At the hearing, both parties presented witnesses and the Department introduced the photographs into evidence. Pyfrom testified that he saw Minnick standing in a lane of moving traffic. While one car was stopped in the next lane, Pyfrom said that a car in Minnick’s lane drove toward her before stopping. Pyfrom testified that the speed limit was 40 miles per hour and Minnick could have been hurt or even killed if she had been hit. Minnick testified that she did not step into a lane with moving traffic. But because the photographs clearly corroborated Pyfrom’s testimony, the IAJ rejected Minnick’s testimony as not credible.
The IAJ entered findings and conclusions in a proposed decision and order affirming the Department’s citation against Ceccanti for a serious violation of WAC 296-155-305(9) (b). Unchallenged findings of fact 2 and 3 state:
2. On February 10, 2005, Ceccanti, Inc., failed to ensure that a flagger stood either on the shoulder adjacent to the road user being controlled or in the closed lane prior to stopping road users, and would not stand in a lane being used by moving road users until road users had been stopped.
3. For the violation of WAC 296-155-305(9)(b), the severity of an accident was very high (rated at 6 on a scale of 1 to 6) and a probability of an injury due to the hazard was average (rated as 3 on a scale of 1 to 6), yielding a gravity rating of 18. A gravity rating at 18 equates to a base penalty of $4,500. The employer had “average” history regarding workplace safety and the employer’s good faith was “good.” With adjustments for its size and “good” good faith rating, the appropriate penalty is $1,800.
Ceccanti petitioned for review to the Board. Ceccanti argued the IAJ erred in concluding that Minnick was standing in a lane with moving traffic. The Board denied Ceccanti’s petition for review and adopted the IAJ proposed decision and order as the decision and order of the Board. Ceccanti appealed to superior court.
In superior court, Ceccanti again asserted that the Board erred in finding that Minnick was not standing in a lane with moving traffic. But, for the first time, Ceccanti also claimed that “[t]he Department failed to establish that Ceccanti either had actual knowledge of the flagging violation, or that Ceccanti failed to meet its duty of care in exercising due diligence.” The superior court affirmed the Board’s decision. Ceccanti filed an appeal. In this appeal, Ceccanti does not challenge the Board’s findings.
In a WISHA appeal, the Board’s findings of fact are conclusive if supported by substantial evidence. RCW 49.16.150; Inland Foundry Co., v. Dep’t of Labor Indus., 106 Wn. App. 333, 340, 24 P.3d 424 (2001). We then determine whether the Board’s conclusion of law is appropriate based on these facts. Substantial evidence exists if the record contains evidence of sufficient quality to persuade a fair-minded, rational person of the truth of the declared premise. BD Roofing, Inc., v. Dep’t of Labor Indus., 139 Wn. App. 98, 106, 161 P.3d 387 (2007). Unchallenged findings of fact are verities on appeal. Tapper v. Employment Sec. Dep’t, 122 Wn.2d 397, 402, 858 P.2d 494 (1993).
Under RCW 49.17.150 “[n]o objection that has not been urged before the board shall be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances.” In the proceedings before the IAJ and the Board, Ceccanti raised a single issue: whether the IAJ erred in finding that Minnick stood in a lane with moving traffic. Ceccanti did not raise the issue of whether the Department proved Ceccanti knew or should have known of the violation.
Ceccanti contends that it raised the issue of knowledge in the petition for administrative review by referring to the requirement that the Department must establish the employer either knew or should have known of the violation. But Ceccanti did not argue that it did not have knowledge. Rather, after mentioning the knowledge requirement, Ceccanti argues about whether Minnick stood in a lane with moving traffic, stating that “Minnick was not directing traffic in an active traffic lane” and that Minnick “had taken the appropriate steps to control traffic in a manner consistent with the Department’s expert, Dan McMurdie and the employer’s expert, Jennifer Richards.” Ceccanti’s argument before the IAJ and the Board focused solely on whether Minnick acted in such a way as to constitute a violation, not whether Ceccanti knew or should have known of the violation. Because Ceccanti did not argue that there was no proof it knew or should have known of the violation before the IAJ or the Board, RCW 49.17.150, prohibits our consideration of that argument for the first time in this appeal.[1]
We affirm the Board’s decision and order.