Appeals court upholds decision in 50-foot Hanford fall

The Washington State Court of Appeals has upheld court judgments in favor of two companies sued after a worker fell 50 feet from a Hanford catwalk onto concrete in 2009.

Dean Wilcox, who survived the fall, was an employee of Washington Closure Hanford and could not sue his employer because of worker compensation restrictions. Instead, he sued two other companies in Benton County Superior Court that were involved in the employment of the work control planner on the project.

A look at the case provides insights into the nature of contracting with the federal government and “leads to a conclusion that many contract provisions written to gain government favor and to avoid state employment benefits law are a farce,” said the opinion signed by a panel of three judges.

Washington Closure subcontracted for temporary staff in 2007 with ELR Consulting, a small business that qualifies for federal government contracts as a small business owned by a disabled military veteran. The company’s president was shot during the Vietnam War.

The federal government requires that 3 percent of contract dollars go to disabled veteran small businesses, and Washington Closure received extra pay for subcontracting with small businesses or lost pay if it did not.

ELR did not always directly employ workers it provided for Washington Closure, but instead turned to other employment service companies. One of those was Bartlett Services, a Massachusetts corporation that calls itself the leading provider of technical and professional services to contractors at DOE nuclear sites, such as Hanford, according to the court opinion.

“In other words, WCH received a contract incentive payment by contracting with ELR to provide workers that ELR borrowed from other companies,” the opinion said.

Wilcox sued Bartlett Services and ELR for negligence by the Bartlett work control planner that ELR supplied for the demolition of the Hanford 335 Building. Wilcox fell from the catwalk there.

Case law requires the court to “ignore savvy Hanford area contracts” that declare the work control planner to be an employee of ELR and Bartlett Services, rather than Washington Closure Hanford, and look at the practicalities of the work control planner’s employment, the opinion said.

ELR was dismissed from the case in Benton County, and the appeals court agreed that it was Washington Closure that had oversight of the work control planner.

Whether Bartlett Services had oversight of its own employee was a more complicated question. A jury found in Benton County court that the work control planner worked for Washington Closure, making Bartlett Services not liable for alleged negligence.

That was the correct decision, the court found. The Bartlett Services work control planner was acting as a Washington Closure employee, despite what subcontracts said, and was supervised by Washington Closure management, it found.

The work control planner, who was responsible for identifying hazards and preparing a plan to do work safely, led walkdowns of the 336 Building as preparations were being made to tear it down.

He inspected the 50-foot-high catwalk from the ground because a climbing carabiner could not be found. He assumed stanchions and chains guarded the ladder’s opining to the catwalk, when in fact a hinged hatch was used above the ladder, according to the court opinion.

On the day of the accident, four workers, including Wilcox, were on the catwalk. Two of them had gone down the ladder and the hatch had been left open, assuming the last two employees would immediately follow. Instead, they were assigned another task.

Wilcox failed to notice the open hatch and fell through, hitting a platform 25 feet below the catwalk and then falling another 25 feet. He cracked two vertebrae in his back, broke bones in both legs and damaged one knee.

Wilcox claimed that the work control planner did not use reasonable care in preparing the work plan.

Wilcox’s attorney argued that ELR, Bartlett Services and Washington Closure engage in phony contracts to gain payments or avoid penalties under Washington Closure’s federal contract. As a matter of public policy, the court should penalize ELR and Bartlett Services for their counterfeit contracts, the plaintiff argued.

“Wilcox should address this complaint to the federal government or some other higher authority,” the court opinion said.