JOHN SIPPEL SR, Applicant

AMERICAN MARINA, Employer

ACCIDENT FUND INS CO OF AMERICA, Insurer

An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and order in that decision as its own.

The findings and order of the administrative law judge are affirmed.

Dated and mailed August 8, 2007
sippejo . wsd : 175 : 9  ND § 7.3

James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

The employer asserts in its petition for commission review the administrative law judge erred in determining that the employer violated the safety rule contained in 29 CFR 1926.1060(a) designed to prevent injuries caused by ladder accidents, and that the violation of this rule was a substantial factor in causing the applicant's injury, and therefore the applicant was entitled to 15 percent increased compensation pursuant to Wis. Stat. § 102.57. The employer also contends that the administrative law judge erred in determining the employer violated Wis. Stat. § 101.11(1) by failing to secure the base of a ladder reasonably adequate to render the employment safe, and that everything reasonably necessary to protect the applicant's safety was not done, also providing a basis for 15 percent increased compensation under Wis. Stat. § 102.57.

The employer contends that the accident investigation performed by the Department of Commerce was grossly incorrect. The employer states that the applicant, as the supervisor of the job, simply stepped on the 16-foot ladder without asking the person below to hold the bottom secure, and simply being in a hurry did not tell the person below that he was stepping on the ladder or tell him to hold the ladder. The employer contends that it did not violate OSHA safety standards and the applicant's injuries resulted from an accident with no fault to the employer. The employer points to the fact that the Department of Commerce accident investigation report refers to an incorrect mechanism of injury since the applicant did not fall 25 feet to the cement, but a much shorter distance.

However, the evidence did not indicate that the applicant was the supervisor at the time of the work incident on December 15, 2003. The administrative law judge appropriately noted that Mr. Hottenstine, a vice president and stockholder in the employer, was acting as a supervisor of the group in charge of removing an old sign from the roof of the employer's store. Mr. Hottenstine admitted in his testimony that he told everyone at the start of the project that someone always had to be at the base of the ladder. The applicant testified that Mr. Hottenstine was supervising him on the day of the accident.

The evidence indicates that although the employer took steps to make sure that the base of the ladder was secured for the first part of the project by using the forklift, during the last 15 minutes and just prior to the applicant's fall the forklift was removed. The testimony indicates that a co-worker named Chuck was assigned to hold the bottom of the ladder after the forklift was repositioned. However, just prior to the applicant's fall, Chuck left the base of the ladder and was not securing the base of the ladder at the time that the applicant fell.

The evidence indicates that the employer could have used its company truck to secure the base of the ladder after the forklift was removed. The applicant testified that the truck was at the scene on the day of the accident but was not used to secure the base of the ladder. The commission agrees with the administrative law judge that the employer's failure to position the company pick-up truck at the base of the ladder after the forklift was moved was a substantial factor in causing the accident. Pursuant to Wis. Stat. § 101.11(1) an employer is responsible for the failure of a supervisory employee to use reasonably adequate methods and processes to make safe the employment and place of employment under its control. In addition the applicant admitted that he may have told the investigators from the Department of Commerce that he fell 25 feet although the distance he fell was probably much shorter. Although the Commerce Department report may contain some minor errors the commission finds that the report contains an accurate rendition of the events leading up to the applicant's fall and injury.

Pursuant to OSHA standard 29 CFR 1926.1060(a) an employer shall insure that each employee has been trained by a competent person in the proper construction, use, placement and care and handling of all stairways and ladders. The evidence did not indicate that the employer provided a training program for employees using ladders and to recognize hazards related to ladders and stairways. Mr. Hottenstine admitted that the employer never demonstrated the proper use of a ladder at a safety meeting, and did not use a slideshow or presentation to demonstrate the safe use of a ladder. Mr. Hottenstine asserted that he discussed the use of ladders with employees, and the employees were told to make sure someone was holding on to the ladder. Mr. Hottenstine testified that he was aware of the safety programs with the employer, but the department managers are the ones responsible for developing and implementing the training programs.

The applicant testified that he did not believe that the employer had a safety training manual and did not have a manual for ladder safety. The applicant testified that before the accident the employer had a training meeting in the rigging department and someone named Felix conducted the meeting and ladder safety was discussed. The applicant testified that Felix instructed employees to keep the ladder straight and the footpads flat on the ground, but he could not recall how the employees were supposed to secure the base. The administrative law judge appropriately noted that the employer could not provide the dates of any of the past training meetings, and the employer did not have a training manual, and Mr. Hottenstine admitted that the employer never gave a demonstration, showed a film, or presented a slide show to the employees on the proper use of a ladder. The commission finds that the employer did not provide its employees with an adequate training program on ladder safety, and thus violated OSHA standard 29 CFR 1926.1060(1). Therefore, given the employer's failure to provide an adequate training program on ladder safety and given the failure to properly secure the ladder using the employer's truck in violation of the Wisconsin Safe Place statute, the administrative law judge appropriately found that the employer's failure led to the applicant's fall and subsequent injuries. Based on the testimony presented at the hearing as well as the Department of Commerce investigation, the evidence was sufficient to establish that the employer was liable for 15 percent increased compensation pursuant to Wis. Stat. § 102.57.

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uploaded 2007/08/27