FINN HILL MASONRY INC v. DEPARTMENT OF LABOR AND INDUSTRIES (2005)

PART PUBLISHED OPINION

¶ 1 Finn Hill Masonry, Inc. appeals the superior court's order affirming an order of the Board of Industrial Insurance Appeals, which found violations of the Washington Industrial Safety and Health Act. We affirm.   We also hold that the Department of Labor and Industries waived its objection to pro se representation of the corporation by not objecting to one of the corporate officers representing itself, pro se, in superior court and on appeal.

I. Pro Se Corporate Representation

¶ 2 The Department of Labor and Industries (Department) cited Finn Hill for safety violations.   Finn Hill appealed to the Department and the Department affirmed the citations after a hearing. Finn Hill then appealed the citations to the Board of Industrial Insurance Appeals.   It too held a hearing.   From that hearing, Finn Hill appealed to the superior court and then to this court.   We discuss the nature and substance of the citations in the unpublished portion of our opinion.

¶ 3 At each stage of the proceedings, a lay person rather then a licensed attorney represented Finn Hill. Finn Hill's representative was the corporate treasurer.   Two days before oral argument before this court, the Department filed a statement of additional authorities indicating that corporations must be represented by an attorney.   The Department had not raised this issue in superior court.   Nor had it filed a motion to strike Finn Hill's brief or to prohibit the argument by the non-lawyer before us. Neither side has briefed the issue apart from the supplemental authority the Department filed.

 ¶ 4 At the Department level, where the first appeals from the citations occurred, and when the matter is appealed to the Board of Industrial Insurance Appeals, a corporation may have a lay person represent it.  WAC 263-12-020(3).   But during appeals to the superior or appellate court, a corporation must be represented by an attorney.   At that level of appeal, the rules permitting pro se representation do not apply to corporations.  Lloyd Enter., Inc. v. Longview Plumbing & Heating Co., 91 Wash.App. 697, 701, 958 P.2d 1035 (1998), review denied, 137 Wash.2d 1020, 980 P.2d 1281 (1999).

¶ 5 Had the Department raised the matter in superior court, we assume that the court would have struck the pleadings and allowed Finn Hill time to obtain counsel.   As well, if the Department had appropriately raised the issue before us, we would probably have struck the brief and allowed Finn Hill time to obtain counsel.   But, the Department did not timely raise the matter.   It filed no motion to strike or even to prohibit oral argument before us.   Additionally, its supplemental authorities were not filed until  two days before oral argument, despite the fact the case it relies on was decided in 1998.   Even at oral argument, the Department did not move for any prohibitions.   Although the Department has not briefed the matter, we address it because of the supplemental authorities filed and the obvious requirement of counsel in court proceedings for corporations.

¶ 6 Because lay representation is permitted at the Department and Board levels and the Department did not contest lay representation in either the superior or the appellate court, we hold that the Department has waived any claim of inappropriate representation.   Because the Department, even if unintentionally, lulled Finn Hill into presuming that it did not require an attorney, remedial action on our part, sua sponte, at this stage would be inappropriate and unfair to Finn Hill.

¶ 7 A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record pursuant to RCW 2.06.040, it is so ordered.

FACTS

¶ 8 On July 12, 1999, the Department dispatched safety and health inspector, Kent Davis, to 2929 NW 4th Avenue in Camas, Washington where Finn Hill was working on a masonry job.   Mike Burt, a compliance supervisor, accompanied Davis on the inspection.

¶ 9 After arriving, Davis took pictures from his car of employees on scaffolding without any fall protection, exposed to falls of 12 to 14 feet.   Davis talked with Duane Homola, the owner of Finn Hill. During their walk around the site, Davis and Burt observed additional Washington Industrial Safety and Health Act (WISHA) violations.1

¶ 10 As a result of his inspection, Davis found five WISHA violations and issued five citations.   The Department vacated one of the violations and the Board vacated another violation.

¶ 11 Finn Hill appealed the three remaining citations and the Department reassumed jurisdiction to hold a reassumption hearing. After the reassumption hearing, the Department affirmed the violations.   Finn Hill then filed a notice of appeal with the Board of Industrial Insurance Appeals (Board).   The Board heard Finn Hill's appeal on June 29, 2000.

¶ 12 At the hearing, the Department called Justin Wantaja to testify.   Wantaja was the hod carrier at Finn Hill on the day of the inspection.2  He testified that he cut bricks on July 12, using the masonry saw and that he had not used the water system.   Wantaja also testified that Finn Hill employees would not use water on the saw when they needed to make only a couple cuts on the saw.   The Department asked if he ever wore a harness or safety equipment when he was on the scaffolding.   Wantaja replied, “[n]o.”   Board Record Transcripts (BRT) (Jun. 29, 2000) at 12.

¶ 13 The Department next called Davis.   Davis testified that Burt had received a complaint from an industrial hygiene supervisor who had observed the Finn Hill job site and thought there might be some safety violations, particularly with the scaffolding.   Davis and Burt went to the worksite to investigate the complaint.   Davis explained that because he had not had a lot of construction experience in his job, Burt accompanied him.

¶ 14 After arriving, Davis and Burt discussed possible safety code violations.   Davis stated that he then met with Homola and completed an opening conference with him.   He testified that he observed that none of the employees were wearing fall protection.   Davis further explained that the employees did not have to wear fall protection as long as there was an adequate protection system installed on the scaffolding.

¶ 15 The Department had Davis explain the citations he gave to Finn Hill. In Item 1-1, Davis discussed that an employer had a duty to provide an adequate fall protection system for employees working off of a scaffolding system.   He cited Finn Hill because he observed an employee working on scaffolding without any fall protection.   The Department asked Davis what type of hazard Finn Hill exposed its employee to as a result of the violation.   Davis responded that a fall of up to 12 feet could result in permanent partial disability.

¶ 16 Davis also told the Department that he recommended the violation be classified as “serious.”   BRT at 29.   The Department asked the difference between a general violation and a serious violation.   Davis explained that a serious violation is one where if an accident occurred, it would likely “result in permanent partial disability or death.”   BRT at 29.

¶ 17 The Department then had Davis explain Item 1-3.   Davis stated that when employers erected scaffolding systems, they had to ensure that the system supported scaffold poles, legs, frames, posts, and uprights, and that the employer used base plates that rested on adequate and firm foundations.   During the inspection, Davis noted that one of the scaffolding legs rested on several layers of two-by-six blocks of wood.   Davis testified that an employer could use blocks of wood but not if the employer stacked the wood in a manner that resulted in an unstable support of the scaffolding system.   Davis also noted that a hazard existed because if the scaffolding system collapsed, the employees would receive severe injuries.   He also classified Item 1-3 as a serious violation.

¶ 18 Item 1-5 was a citation for failing to have a dust containment system or to use water while operating the masonry saw.   Davis testified that the exposure to silica dust could result in an occupational disease of the respiratory system.   While inspecting the worksite, he noticed that Finn Hill's masonry saw was not equipped with either the dust containment system or water.   Davis recommended classifying the violation as serious because of the possibility that a respiratory disease could result.

¶ 19 Finn Hill then called Burt to testify.   He had instructed Davis on Finn Hill's violations, but Davis actually wrote the citations.   Burt explained that the standard practice for WISHA violations was for the supervisor to review a report and then recommend its submission for issuance of a citation.   Burt testified that he measured the fall distance by looking at the height of the paneling on the house.   He concluded that both the individuals shown in exhibit 6 were exposed to a fall hazard greater than 10 feet.

¶ 20 Finn Hill next called Duane Homola.   Homola testified that Finn Hill had never received any citation or warnings before the July 12 citations.   He stated that he did not believe a person would fall 10 feet from the scaffold because the legs of the scaffold were dug down deep into the ground and because there was a slope in the land.   Homola also testified that Finn Hill employees had used the masonry saw earlier the day of the inspection to make a few cuts.   He also admitted that the use of multiple two-by-six blocks of wood violated industry standards.   Homola stated that the use of the blocks gave the scaffold some movement.   He further testified that if one block slipped, a corner of the scaffold would drop.   Homola also agreed that a fall of over 10 feet would result in a significant injury to an employee.

¶ 21 The Industrial Appeals Judge (ALJ) issued a proposed decision and order on October 23, 2000.   In the order, the ALJ affirmed Item Numbers 1-1, 1-3, and 1-5 and found that they were serious violations as defined in RCW 49.17.180(6).   The ALJ also found that the penalties the Department imposed were appropriate.   Finn Hill petitioned for review of the proposed order and decision.   The Board denied Finn Hill's petition and the proposed order became the Board's final order.

¶ 22 In February, 2001, Finn Hill appealed the Board's decision to the superior court.   The first scheduled hearing was on June 20, 2003.   At the beginning of the hearing, the court told the parties that it had not received a transcript in the court file but that it had received the parties' briefs and was aware of the issues on appeal.   The Department suggested getting the court a copy of the transcript and rescheduling the oral argument.   The court accepted this suggestion.

¶ 23 The trial occurred on July 25 in Clark County.   The Department appeared by phone.   The trial court stated that it had read everything but that it had done so late the previous night.   After listening to the parties' arguments, the court found that sufficient evidence supported the Board's findings of fact numbers 4, 8, 11, and 12.

¶ 24 On August 25, Finn Hill filed a “Notice of Motion for Rehearing of Appeal Based on Judicial Misconduct.”   Clerk's Papers (CP) at 29.   Finn Hill alleged that the trial judge stated that he had not read the entire transcript or case law;  that he did not have the discretion to change the citations from “serious” to “general”;  and that he was previously employed by the attorney general's office and was therefore biased.   CP at 30.

¶ 25 The trial court held oral argument on Finn Hill's motion on May 4, 2004.   During the hearing, the trial judge stated that he had served as an assistant attorney general from August 1983, until July 1997.   He noted that he did not remember ever appearing for the Department.   The trial court denied Finn Hill's motion for rehearing.   Finn Hill appeals the Board's findings of fact 4, 8, 11, and 12.

II. Standard of Review

¶ 26 We review the Board's findings of fact for substantial evidence and we determine whether its conclusions of law are appropriate based on its factual findings.  Danzer v. Dep't of Labor & Indus., 104 Wash.App. 307, 319, 16 P.3d 35 (2000) (citing RCW 49.17.150(1)), review denied, 143 Wash.2d 1020, 25 P.3d 1019 (2001);  Young v. Dep't of Labor & Indus., 81 Wash.App. 123, 128, 913 P.2d 402, review denied, 130 Wash.2d 1009, 928 P.2d 414 (1996).   Substantial evidence is “evidence in sufficient quantum to persuade a fair-minded, rational person of the truth of a declared premise.”  Helman v. Sacred Heart Hosp., 62 Wash.2d 136, 147, 381 P.2d 605 (1963) (citing Ruff v. Fruit Delivery Co., 22 Wash.2d 708, 157 P.2d 730 (1945)).   Unchallenged findings of fact are verities on appeal.  Cowiche Canyon Conservancy v. Bosley, 118 Wash.2d 801, 808, 828 P.2d 549 (1992).

III. Findings of Fact

¶ 27 Finn Hill asserts that substantial evidence does not support the Board's findings of fact 4, 8, 11, and 12.   We disagree.

Findings of Fact 4:

¶ 28 The Board found that Finn Hill did not provide an adequate fall arrest or guardrail system to its employees working on scaffolding.  WAC 296-155-483(7)(a) requires that employees working on scaffolding that is more than 10 feet above a lower level be protected from falling to the lower level.   At the hearing, Davis and Burt testified that Finn Hill had exposed its employees to falls of greater than 10 feet because the company had not provided a fall arrest or guardrail system.

¶ 29 Exhibits 1 through 3 show that both sides of the scaffold located at the front of the building had no guard rails.   In exhibits 6 through 8, the back and side of the scaffold on the interior of the building had no guardrails.

¶ 30 Homola admitted that the workers were at a height of 12 feet.   But, he tried to explain his admission by pointing out that the scaffold legs were dug down and that a slope existed at the point in question.   These facts do not overcome the substantial evidence the Department presented.   The evidence also does not support Finn Hill's argument that one of its employees had guardrail protection and that another on the scaffold was less than 10 feet from the ground because of the slope in the ground.

¶ 31 The photos show unprotected sections of the scaffold and workers working in that area, at times directly exposed to the danger.   This evidence is a direct violation of WAC 296-155-483(7)(a).   Substantial evidence supported finding of fact number 4.

Findings of Fact 8:

¶ 32 WAC 296-155-483(3)(c) contains the general requirements for using scaffolding.   Finn Hill constructed an unstable scaffold, placing the legs of the scaffold on top of several layers of two-by-six inch wood blocks.   By supporting the scaffold in such a manner, Finn Hill violated WAC 296-155-483(3)(c).

¶ 33 Finn Hill failed to place the scaffold legs on base plates but instead used unstable two-by-six blocks of wood.   Additionally, Homola admitted that using the stacked wood violated the WISHA regulations and that the scaffolding was likely to move because of using multiple pieces of wood.   Homola further admitted that if one of the wood blocks slipped, a corner of the scaffold would drop.

¶ 34 Finn Hill attempts to rebut this evidence by arguing without support in the record, that the wood blocks were not unstable.   It also asserts that the corner Davis referenced in his citation was not on a load-bearing side that employees used for access.   But the regulation requires that all legs must be on base plates and must be stable.   Finn Hill's argument is meritless and substantial evidence supports the Board's finding of fact 8.

Findings of Fact 11 and 12:

¶ 35 Finn Hill used a table-mounted masonry saw that was not equipped with either a mechanical means of exhausting dust into a covered receptacle or that used water on the saw blade for dust control.  WAC 296-155-367(4)(a) states the exhaust requirements when using a table-mounted masonry saw.   Finn Hill did not comply with this regulation.

¶ 36 Wantaja, the employee who used the saw, testified that the company practice was to not use the water reservoir or other dust protection when using the saw for brief durations.   Both Wantaja and Homola testified that employees had used the saw on the day of the inspection.

¶ 37 Although Finn Hill disputes that its employees used the masonry saw on the day of the inspection, the evidence directly contradicts its argument.   Substantial evidence supports findings of fact 11 and 12.

IV. “Serious” Violations

¶ 38 Finn Hill raises two arguments dealing with the Department's classification of the violations as being “serious.”   Each of Finn Hill's arguments fail as substantial evidence supports the Department's classification.

A. Findings of Fact 11 and 12

¶ 39 Finn Hill failed to assign error to the findings addressing the serious nature of the violations listed in Item numbers 1-1 and 1-3.   Thus, these findings are verities on appeal.  Cowiche Canyon Conservancy, 118 Wash.2d at 808, 828 P.2d 549.

¶ 40 The Department rates a violation as “serious” if a substantial probability exists that if harm resulted from the violation, that harm would be death or serious physical harm.  RCW 49.17.180(6).   In finding of fact 12, the Board found:

Regarding Item No. 1-5, insofar as Duane Homola, the president of Finn Hill Masonry, Inc., was present on the construction site on July 12, 1999;  the employer knew or should have known that an employee was using the masonry saw to cut brick without either a dust containment receptacle or water on the saw blade.   The president of Finn Hill Masonry, Inc., also knew or should have known that it was the practice on that construction job to use the saw without dust containment or water on the saw blade when only a couple of cuts of brick were anticipated.   There was a substantial probability that physical harm or death could result from the violation from the worker's inhalation of silica dust, and the violation is therefore appropriately characterized as serious.

Board Record (BR) at 30.

¶ 41 Both Davis and Burt testified that inhaling silica dust by employees could result in respiratory illness that could result in serious disability or death.   Homola agreed that silica dust could cause a fatal respiratory illness.   Substantial evidence supported the Board's finding that exposure to silica dust could result in death, which made the violations serious.

B. Item Number 1-5

¶ 42 Finn Hill contends that there was not enough silica dust to support a “serious” violation.   Br. of Appellant at 4, 10-11.   We disagree.

¶ 43 As stated in RCW 49.17.180(6), if a substantial probability exists that a WISHA violation could lead to death or serious physical harm, then the violation is “serious.”   The “substantial probability” language refers to the likelihood that the resulting harm from a WISHA violation will culminate in death or serious physical harm.  Lee Cook Trucking & Logging v. Dep't of Labor & Indus., 109 Wash.App. 471, 482, 36 P.3d 558 (2001).

¶ 44 The burden on the Department is not to prove that harm will occur but rather to show that, if harm occurs, it will result in death or serious physical harm.   Therefore, the Department did not need to show that inhaling silica dust at the Finn Hill worksite in a specific amount would result in lung disease.

¶ 45 Finn Hill also claims that the Department did not present evidence from expert witnesses that there was enough silica dust to cause serious injury or death.   But Davis and Burt are field safety experts.   Both testified to the dangers of silica dust and to falls from heights of more than 10 feet.   Finn Hill did not object during the hearing to these opinions.   Thus, Finn Hill waived any objection to Davis's and Burt's expert testimony.  Sepich v. Dep't of Labor & Indus., 75 Wash.2d 312, 316-17, 450 P.2d 940 (1969).   Nor did Finn Hill object to the Department's evidence at the superior court or in its assignments of error to this court.   These failures to object also constitute waiver.   It is well settled that objections to evidence cannot be raised for the first time on appeal. Omeitt v. Dep't of Labor & Indus., 21 Wash.2d 684, 690, 152 P.2d 973 (1944).

V. Bias and Improper Conduct

¶ 46 Finn Hill makes several allegations about the conduct of the superior court judge in its brief.   But Finn Hill neglects to include relevant citations to the record or law but it argues the judge was not prepared and was biased.   RAP 10.3(a)(5).

¶ 47 The claim that the judge had not read the material is not substantiated.   The judge stated on the record that he had reviewed the entire record the night before the hearing.

¶ 48 Canon 3(D)(1) of the Code of Judicial Conduct only requires a judge to disqualify himself from proceedings if the judge has a bias against a party or the judge's impartiality may reasonably be questioned.   Here, the superior court judge served as an assistant attorney general from 1983 to 1997.   He did not recall ever representing the Department while employed with the attorney general's office.   A party who claims bias or prejudice must support its claim;  we will not presume prejudice.  State v. Dominguez, 81 Wash.App. 325, 328, 914 P.2d 141 (1996).   Further, prior government employment with an office that represents federal, state, or local governmental agencies does not on its own disqualify a judge from hearing a case.  United States v. Di Pasquale, 864 F.2d 271, 278-79 (3d Cir.1988), cert. denied sub. nom, Di Norscio v. United States, 492 U.S. 906, 109 S.Ct. 3216, 106 L.Ed.2d 566 (1989).

¶ 49 Finn Hill has presented no evidence of actual prejudice or bias to support its claims.   Thus, we find that the superior court judge did not commit misconduct in handling the case.

VI. Length of Brief

¶ 50 In its reply brief, Finn Hill notes that the Department's brief exceeds the page limits of RAP 10.4(b).  There is nothing in the record to show that the Department filed a motion for overlength brief.   Finn Hill asks that we remove the excess documents the Department appended to its brief in order to address the primary issues in the appeal.

¶ 51 RAP 10.4(b) states that the respondent's brief should not exceed 50 pages.   The rule also states that appendices, title sheet, the table of contents, and the table of authorities are not included in the page count.   Here, the Department's brief was 47 pages not including the appendices, title sheet, table of contents, or the table of authorities.   Although the Department's brief was lengthy because it included the appendices containing documents already in the record, the Department did not violate RAP 10.4(b).

¶ 52 Finn Hill requests reimbursement of costs on appeal.   Because it is not the prevailing party, we deny any reimbursement of costs on appeal.  RAP 18.1.

¶ 53 Affirmed.

FOOTNOTES

1.   The Washington Industrial Safety and Health Act is found at chapter 49.17 RCW.

2.  . A hod carrier hauls bricks to the masons, cuts bricks, and mixes mortar.

BRIDGEWATER, J.