Joe Whitcomb
Granite Construction Company faced a safety violation citation due to their failure to use safety chains on a dump truck tailgate. The incident took place on December 20, 2017, at the company's Olympia asphalt plant, resulting in an unfortunate injury to employee Jacob Hamann when the tailgate unexpectedly opened, causing hot asphalt to pour onto him. The Board of Industrial Insurance Appeals confirmed the Corrective Notice of Redetermination, while also allowing Exhibit 6 to be admitted as evidence.
OSHA Citation
During the investigation conducted by Nicholas Deuel, the Department's compliance and safety officer, it was discovered that Granite Construction had violated a safe place standard by neglecting to utilize safety chains on the tailgate. Deuel obtained a document titled "Dump Truck Tailgate Safety" from Granite Construction, which outlined the safety measures employed by the company for their employees. Erich Smith, a construction technical specialist for the Department, provided testimony stating that the use of safety chains would mitigate the "struck-by" hazard. On the other hand, Jerome Determan, Granite Construction's paving foreman, testified that the company did not enforce a policy mandating the use of safety chains for ditch gate operations. Meanwhile, John Donegan, Granite Construction's group safety manager, clarified that the "Dump Truck Tailgate Safety" document was not a strict company-wide rule but rather a suggested "best practices" guideline. Surprisingly, Robert Petrak, Granite Construction's paving superintendent, claimed to have never heard of spreader chains being used as a safety device in hot asphalt operations.
Exhibit 6, a "Safety Alert" document created by Granite Construction after the accident, was divided into three columns: Description, Cause, and Prevention. The Cause column highlighted that the employee was standing behind the truck in a confined area with no escape route, and the crew failed to adhere to the Dump Truck Tailgate Safety Procedure. The Prevention column cautioned against using a truck without safety devices in place and standing directly behind it. Although the industrial appeals judge declared Exhibit 6 inadmissible under ER 407 as a subsequent remedial measure, the board disagreed, contending that only the Prevention column constituted such a measure. WAC 296-155 establishes safety standards for construction work, including the obligation to provide a hazard-free workplace. To prove a violation of the general safe place standard, the Department must substantiate four elements, two of which Granite Construction disputes have not been met. However, the board determined that Granite Construction did acknowledge the hazard associated with the absence of safety chains, as evidenced by Exhibit 5, which mandates their use alongside clamps. Additionally, the board found that the second element was fulfilled since Granite Construction explicitly admitted in Exhibit 6 that the safety standard was "created for this type of operation."
The board further examined the feasibility of eliminating or reducing the hazard through the implementation of safety chains. Granite Construction argued that the Department failed to prove that safety chains would mitigate or eliminate the hazard, but the Department's construction technical expert testified that they would indeed alleviate the risk. Granite Construction failed to present any evidence to counter this testimony. Consequently, the board concluded that the Department successfully demonstrated the feasibility of eliminating or substantially reducing the hazard. The board upheld the Corrective Notice of Redetermination issued by the Department, which alleged a serious violation of WAC 296-155-040. Furthermore, the board examined the severity and probability of the hazard, as well as Granite Construction's history and good faith rating.
Ultimately, the board confirmed the accuracy of the penalty imposed on Granite Construction. In addition, the board affirmed the Corrective Notice of Redetermination and reversed the ruling regarding the admissibility of Exhibit 6, as it serves as evidence of the employer's awareness of the hazard and the feasibility of precautionary measures. Finally, the board endorsed all other evidentiary rulings. The decision-making individuals listed were Linda L. Williams (Chairperson) and Isabel A. M. Cole (Member). Numerous footnotes referred to exhibits and cases, including Western Oilfield Supply v. Department of Labor and Industries.