STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

JERRY M GROVER, Applicant

MAYNARD STEEL CASTING CO, Employer

SENTRY INSURANCE A MUTUAL CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 2007-012095


The applicant submitted a petition for commission review alleging error in the administrative law judge's Findings and Order issued in this matter on December 8, 2008. Maynard Steel Casting Company and Sentry Insurance (Respondents) submitted a brief in response to the applicant's petition. At issue are claims for increased compensation under Wis. Stat. § 102.57, and for decreased compensation under Wis. Stat. § 102.58.

The commission has carefully reviewed the entire record in this matter and hereby affirms in part and reverses in part the administrative law judge's Findings and Order. The commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant worked as welder for the employer. On April 5, 2007, he was attempting to lift a 700-pound casting using a single hook and chain when the casting slid off the hook and injured him. The applicant had inserted the hook into a hole in the casting in order to lift it, but the hook he was using had been altered to be thinner at the hook end. The employer's Vice Present of Human Resources, Gene O'Kelly, indicated that he did not know who had altered the hook or where it came from. At the hearing, the applicant was not asked if he knew the answer to these questions, but he did indicate that he had used this particular chain and hook in the past.

As a result of the incident, OSHA cited the employer for "serious" safety violations involving three sections of the code of federal regulations. The first section, 29 CFR 1910.184(d), requires immediate removal of damaged or defective slings from service. OSHA determined the altered hook was "damaged" within the meaning of the code. The second section, 29 CFR 1910.184(e)(1), requires all steel slings be permanently affixed with durable identification stating size, grade, rated capacity, and reach, but the hook and chain used by the applicant had no such identification. The third section, 29 CFR 1910.184(e)(ii), requires in relevant part that steel hooks not be open more than 15 percent of the normal throat opening, but the hook at issue was open more than 15 percent and had not been removed from service.

OSHA assessed penalties against the employer in the total amount of $10,000, but the employer entered into a settlement agreement whereby it agreed to correct the code violations and pay a penalty amount of $2,500.(1) The employer paid the penalty but asserted that the injury was caused by the applicant's failure to follow its safety rule against using chain hooks not rated for the job. O'Kelly asserted there are annual inspections of the work stations and the hooks, and that the latest inspection had taken place about one month before the applicant's date of injury.

The employer submitted a copy of its written safety guidelines. These require using rigging and sling equipment that is in safe working order, daily checking of hooks for damage or defects, and a prohibition against improper "point loading." This term is not defined in the record, but the employer asserts that it describes what the applicant was doing when he was injured. The employer also submitted copies of disciplinary write-ups for violations of its safety rules, including a 2006 violation for improper hook-up of a casting, a 2006 violation for overloading a hook, and a 2007 violation for not sounding a warning before moving a heavy load over a co-worker's head. None of these violations involved the applicant.

The applicant concedes there were "several meetings regarding safety," but indicates he had only one training session regarding the use of hook and chain assemblies. He asserts that part of the reason for his injury was that the low iron table on which the casting was to rest was too small and too light for the job, and slid away when the casting fell, thus contributing to the cause of his injury. He had complained to his supervisor about the table not being big enough or heavy enough. While it is possible that the size and weight of the table had some causal connection to the applicant's injury, there was no OSHA or other citation issued with regard to the table, and the commission infers that it was not a substantial factor in causing the applicant's injury.

Wis. Stat. § 102.57 provides:

"If injury is caused by the failure of the employer to comply with any statute, rule, or order of the department, compensation and death benefits provided in this chapter shall be increased to 15% but the total increase may not exceed $15,000. Failure of an employer reasonably to enforce compliance by employees with any statute, rule, or order of the department constitutes failure by the employer to comply with that statute, rule, or order."

The U.S. Department of Labor's Occupational Safety and Health Standards codified in 29 CFR 1910 have been adopted as part of the Wisconsin Administrative Code and are therefore department rules. The employer violated three of these rules as verified by the OSHA citations and penalties. Causal connection between an injury and a safety rule violation is presumed when the injury is one that the rule was designed to prevent.(2) That presumption applies to the applicant's injury because the regulations were designed to prevent the type of incident that occurred on April 5, 2007. The presumption is confirmed in actual fact because the credible evidence demonstrates that the thinned hook, with a wider-than-allowed throat opening, was a "substantial factor"(3) in the applicant's injury.

The employer argues that the applicant's injury was caused by his deliberate failure to adhere to guidelines for use of the proper hook and chain assembly for the job. The employer's accident investigation form, completed by O'Kelly and one of the applicant's supervisors, indicates: "They have special hooks for the purpose of making lifts like this. They had one of these hooks less than ten feet away." O'Kelly asserted in testimony that if the proper hook and chain assembly had been used, the casting would not have fallen. On this basis, respondents additionally argue 15 percent decreased compensation should be assessed pursuant to Wis. Stat. 102.58.(4)

The commission infers that the applicant knew the hook had been altered and that using it on the casting was not entirely safe. He noted in testimony that the hook "barely fit in the hole of the casting," and he was aware of the heavy weight of the casting. Accordingly, there was some negligence on his part. The distinction between employee negligence that constitutes a "superseding cause" of injury, and employee negligence that does not reach that level of causation is outlined in Milwaukee Forge v. ILHR Dept., 66 Wis. 2d 436-37, wherein it is stated:

"Sec. 447 of the Restatement, 2 Torts 2d, provides that a negligent intervening act by a third party [employee] is not a superseding cause of harm which the actor's [employer's] negligent conduct is a substantial factor in bringing about if:

'(a) The actor at the time of his negligent conduct should have realized that a third person might so act, or

(b) A reasonable man knowing the situation existing when the act of the third person was done would not regard it as highly extraordinary that the third person had so acted, or

(c) (d) The intervening act is a normal consequence of a situation created by the actor's conduct and the manner in which it is done is not extraordinarily negligent."

(e) The criteria set forth in the Restatement and adopted by the Wisconsin Supreme Court sets a high bar for demonstrating that an employee's negligence constituted a superseding cause for that employee's injury. For the reasons set forth below, it is determined that this bar was not reached in the applicant's case, and that decreased compensation is not applicable.

The employer did present credible evidence that it had a safety rule that addressed the use of improper hook and chain assemblies, but the facts lead to the inference that this rule was not reasonably enforced. It is inferred that the hook and chain assembly was the employer's property, and it was available to the applicant at the workplace. The applicant gave unrebutted testimony that he had used this same assembly in the past, and that it was hanging on the wall at the workplace. The OSHA investigation recounts the fact that the altered hook had been in service at the employer's workplace "for months." In a letter to OSHA dated April 25, 2007, O'Kelly advised that agency that abatement was accomplished immediately after the applicant's injury by the immediate removal of the chain and hook from service, completing a refresher training of all affected employees regarding daily chain and hook inspections, and implementing a formal audit record. The credible inference is that this abatement was necessary because even though the employer had in the past disciplined employees for violations of its rule to use safe hook and chain assemblies, it did not make the required daily inspections, and it allowed continued use of the altered hook that caused the applicant's injury. The employee's decision to use the altered hook constituted poor judgment, but it was a decision made in the context of getting the job done for the employer, and that particular hook and chain assembly should never have been available to the applicant. Analysis of all three of the Restatement tests demonstrates that the applicant's negligence did not reach the level of superseding cause. The employer should have realized that with the hook and chain assembly in service the applicant would use it; a reasonable person knowing the situation would not regard the applicant's use of the assembly as highly extraordinary; and the applicant's use of the assembly was not extraordinarily negligent.

The initial burden of proving a claim for decreased compensation rests with the insurance carrier or self-insured employer,(5) but neither the insurer nor the employer carried that burden in this case, because it was not shown that the employer reasonably enforced the applicable safety rules.

The record before the commission fails to confirm the amount of compensation the applicant received due to his work injury, and against which the 15 percent penalty for increased compensation applies. The synopsis and the administrative law judge's decision contain no indication of the amount at issue. The administrative law judge's handwritten notes do indicate the applicant claimed a 15 percent penalty to be applied against "$53,982.37 in total indemnity," for a penalty amount of $8,097.36.(6) However, neither the administrative law judge's notes, the synopsis, nor any other document in the file before the commission indicates there was any stipulation or verification that this claimed penalty amount was correct.

The record also fails to address what fee agreement the applicant had with his attorney, who represented the applicant at the hearing, but who did not participate in the applicant's filing of his petition for commission review. The file does contain a short list of costs, apparently submitted by applicant's attorney, in the total amount of $98.65.

Given all this uncertainty, the commission will leave the order interlocutory with respect to the exact amounts due the applicant and his attorney. A token amount of $100 towards increased compensation will be ordered paid in order to make this an appealable order, and a 20 percent attorney's fee will be subtracted. Absent appeal, the employer shall make immediate payment of the 15 percent penalty against the full amount of compensation at issue, but if a dispute exists regarding what that amount is, the department shall allow opportunity for new hearing solely to resolve such dispute. The applicant and his attorney shall inform the employer of what their fee agreement is, and the employer shall make payment in accordance with such agreement, including reimbursement of the attorney's costs. As provided in Wis. Stat. § 102.62, liability for the penalty rests primarily with Maynard Steel Casting Company, and secondarily with Sentry Insurance Company.

NOW, THEREFORE, this

INTERLOCUTORY ORDER

The Findings and Order of the administrative law judge are affirmed in part and reversed in part. Within 30 days from this date, the employer shall pay to the applicant as increased compensation the amount of Eighty dollars ($80); and to applicant's attorney, Martin D. Stein, fees in the amount of Twenty dollars ($20). The application for decreased compensation is dismissed.

Jurisdiction is reserved as noted above, solely with respect to the exact amounts due the applicant and his attorney for increased compensation, pursuant to Wis. Stat. § 102.57. In all other respects this order provides final resolution to the issues arising under Wis. Stat. § 102.57 and Wis. Stat. § 102.58. With respect to the penalty for increased compensation, the employer's liability is primary while the insurance carrier's liability is secondary.

Dated and mailed August 18, 2009
groveje : 185 : 5 ND §§ 7.1, 7.17

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

 

NOTE: The commission's reversal of the administrative law judge's decision regarding increased compensation was based on analysis of the applicable law. The commission had no disagreement with the administrative law judge's actual findings of fact.

cc: Attorney Martin L. Ditkof


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Footnotes:

(1)( Back ) The employer paid an additional penalty amount of $3,500 to OSHA for a total of $6,000, but the basis for this additional payment is not set forth in the record.

(2)( Back ) See L.M. Bickett Co. v. Ind. Comm., 10 Wis. 2d 289, 292-93, 102 N.W.2d 748 (1960).

(3)( Back ) See Milwaukee Forge v. ILHR Dept., 66 Wis. 2d 428, 437, 225 N.W.2d 476 (1975), wherein the "substantial factor" test for causation under Wis. Stat. 102.57, is adopted.

(4)( Back ) Wis. Stat. 102.58 provides:

 "If injury is caused by the failure of the employee to use safety devices that are provided in accordance with any statute, rule or order of the department and that are adequately maintained, and the use of which is reasonably enforced by the employer, if injury results from the employee's failure to obey any reasonable rule adopted and reasonably enforced by the employer for the safety of the employee and of which the employee has notice, or if injury results from the intoxication of the employee by alcohol beverages, as defined in s. 125.05(1), or use of a controlled substance, as defined in s. 961.01(4), or a controlled substance analog, as defined in s. 961.01(4m), the compensation and death benefit provided in this chapter shall be reduced by 15% but the total reduction may not exceed $15,000."

(5)( Back ) See M.W. Martin Inc. v. Ind. Comm., 13 Wis. 2d 574, 585, 109 N.W.2d 92 (1961).

(6)( Back ) The penalty assessment under Wis. Stat. 102.57, does not apply to medical expenses. Schwartz v. ILHR Dept., 72 Wis. 2d 217, 222, 240 N.W.2d 173 (1976).

 


uploaded 2009/09/18