Appeal from Superior Court of King County. Docket No: 94-2-24799-9. Date filed: 05/01/95. Judge signing: Hon. James W. Bates Jr.
The opinion of the court was delivered by: Baker
BAKER, C.J. - In this case we are asked to examine the proper scope of a trial court's review of an administrative decision not to impose sanctions. The Department of Labor and Industries, Division of Industrial Safety and Health (Department) argues that the trial court improperly reversed the Board of Industrial Insurance Appeals' (Board) order denying Longview Fibre's motion for sanctions because the record fails to demonstrate that the Board abused its discretion. We hold that the Board did not abuse its discretion by denying the motion for sanctions, and that the trial court therefore erred in reversing the Board.
Employers are required to maintain "a log and summary of all recordable occupational injuries and illnesses . . . and enter each recordable injury and illness on the log as early as practicable." *fn1 The definition of "recordable occupational injuries or illnesses" does not establish a numerically defined extent of hearing loss that triggers the recording requirement. *fn2 The corresponding federal regulation also requires employers to enter "recordable injury and illness" on their logs, yet does not contain a numerical trigger. *fn3
In September 1992 the Department cited Longview Fibre for failing to enter all recordable occupational illnesses on its Occupational Safety and Health Administration (OSHA) log. The citation was based on the Department's policy of defining a recordable hearing loss as 10 decibels (dB). Longview Fibre instead followed an OSHA policy and recorded only when the hearing loss reached or exceeded 25 dB. It failed, therefore, to record five cases of hearing loss that fell between the 10 dB and 25 dB levels. A $1,000 penalty was assessed for this general regulatory record keeping violation, which was later adjusted to $750 in consideration of Longview Fibre's good faith.
The Washington Industrial Safety and Health Act (WISHA) Violation Report accompanying the citation cited a Department memorandum regarding record keeping as the basis for concluding that recordable illnesses were missing from Longview Fibre's log. The Department memorandum stated that while an OSHA memorandum indicated that record keeping was triggered by an average work-related hearing shift of 25 dB or more, WISHA used the more effective criteria of 10 dB. There was considerable debate at this time among occupational health professionals as to what the proper standard should be, and among employers as to the actual required recording level.
Longview Fibre's safety manager was aware of this confusion.
Longview Fibre filed a notice of appeal with the Board, challenging the citation as unlawfully issued. An interlocutory order of an Industrial Appeals Judge (IAJ) denied Longview Fibre's motion for summary judgment, concluding that there were issues of material fact to be resolved. A lengthy hearing of the appeal followed. The proposed decision and order that became the final decision of the Board *fn4 concluded that the citation was incorrect and should be vacated.
Longview Fibre next filed a motion for sanctions against the Department based on RCW 4.84.185 and CR 11. It sought attorney fees and costs. The Board issued a two-to-one decision denying the motion for sanctions against the Department. The majority found that although the Department did not prevail, it had not been demonstrated that it acted unreasonably, or that its position was unwarranted. The Board merely refused to sustain the Department's position. Longview Fibre appealed and the trial Judge reversed the Board, granted the motion and imposed sanctions.
When an appellate court reviews an administrative decision it stands in the same position as the superior court. *fn5 Review is limited to the record before the Board. *fn6 The standard for our review of the Board's decision to deny the motion for sanctions is abuse of discretion. *fn7 Abuse of discretion exists when an order is "manifestly unreasonable or based on untenable grounds." *fn8 The entire record that was before the Board is before this court. *fn9
A party may be subject to CR 11 sanctions if three conditions are met: (1) the action is not well grounded in fact, (2) the action is not warranted by existing law, and (3) the party who signs the pleadings failed to conduct a reasonable inquiry into the legal or factual basis of the action. *fn10 Under Washington's frivolous action statute, sanctions may be granted if the court finds, upon consideration of all evidence presented at the time of the motion for sanctions, that an action was "frivolous and advanced without reasonable ...