One of the responsibilities of the Washington State Department of Labor and Industries (“L&I”) is to oversee the administration of the Washington Industrial Safety and Health Act (“WISHA”).  L&I accomplishes this task by certifying compliance and assessing penalties for violations of safety and health regulations on the jobsite.  When a violation occurs, L&I levies a base penalty that is determined in one of two ways.  If the law has already specified a penalty amount for the particular violation that has occurred, L&I fines the offender for that sum.  If there is no specified rate for the violation, L&I matches the penalty with a gravity score assigned to the violating condition.

Gravity scores are calculated by multiplying the severity of harm an accident may cause by the probability of that accident occurring due to the violating condition.  Severity rates are based on the level of injury, illness, or disease that could reasonably be expected to occur because of the condition, ranging from 1 (lowest) to 6 (highest).  The probability rate is a number that describes the likelihood of the injury, illness, or disease occurring, and is also measured on a scale of 1 to 6.  To better understand this concept, suppose a worker stands atop a 50-foot step ladder during a storm with gale-force winds.  If the worker falls, his injuries are likely to be severe if not fatal.  This fact would result in a very high severity score, probably a 6.  Because the high winds would make it nearly impossible for the worker to stand at the top of the ladder (an already dangerous endeavor), the likelihood of the worker falling is also very high, probably a 6.  If an L&I safety officer were to come upon this precarious scene, he would calculate these rates and multiply them to determine a gravity score, in this case 36.  That score would then be matched with a corresponding penalty amount.  In general, the higher the gravity score, the greater the penalty.

Challenging L&I’s calculation of the gravity score can often times be futile, as Active Construction Inc. (“ACI”) recently discovered.[1]  In November of 2010, ACI was engaged in making various improvements to streets and water mains in Tacoma.  As an employee was working in a trench near a sidewalk, an L&I safety and compliance officer happened by the jobsite.  Washington law[2] requires employers to provide cave-in protective systems in trenches that are more than four feet deep when the trench is not made entirely of stable rock.  The officer noted that the trench the employee was working in was not shored against cave-ins.  He measured the trench at 5′ 7″ deep and determined that the soil was not made entirely of stable rock.  Finding that ACI had failed to comply with the safety regulation, the officer issued a citation.

In its appeal of the fine, ACI argued that the gravity score assigned by L&I was incorrect.  L&I had listed the severity rate of the violation at 6 and the probability rate at 4, resulting in a gravity score of 24.[3]  ACI challenged L&I’s assertion that the probability rate had been correctly set at 4.  ACI argued that the exposure of the employee in the trench was so brief that the probability of harm rate should have been lower.  A lower probability rate would have resulted in a lower gravity score, and thus a reduced penalty.

The Court held that there was sufficient evidence to show the employee had been exposed to a severe risk by entering the trench.  Additionally, there was evidence suggesting that that exposure would have been more significant had the L&I officer not intervened and put a stop to the risky work.  Because ACI failed to show that L&I’s calculation of the gravity score was improper, the penalty was upheld. 

[1] Active Construction Inc. v. Washington State Department of Labor and Industries, 182 Wn. App. 1020 (2014) (unpublished opinion).

[2] WAC 296-155-657.

[3] After other adjustments, this gravity score resulted in a penalty of $6,600.

Scroll to Top