DONALD D DEGROOT, Applicant

NATIONAL FREIGHT, Employer

AMERICAN ZURICH INS CO, 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
October 31, 2011
degrodo : 101 : 5 ND6 8.5

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

The issue in this case is whether the employer is liable for increased compensation under Wis. Stat. § 102.57 based on a violation of the safe place statute, Wis. Stat. § 101.11(1).

The "safe place statute" requires employers to take action reasonably necessary to make the work or the work site safe, and this duty goes beyond merely placing guards. The statute specifically requires the employer to adopt processes or methods reasonably necessary to ensure the safety of the employees. On this subject, the supreme court noted:

The safe-place statute requires the employer, and imposes a duty upon it, to anticipate what the premises will be used for and to inspect them and to make sure they are safe. The burden to investigate or inspect premises in order that they be safe for employment may be burdensome at times upon an employer, but it does not excise it from the duty so imposed upon it by the safeplace statute and a failure to comply renders it liable for the violation...

Wisconsin Bridge & Iron Co. v. Industrial Commission, 8 Wis. 2d 612, 618-19 (1959); Wittka v. Hartnell, 40 Wis. 2d 374, 385 (1970).

Put another way, an employer must keep his or her place of employment "as safe as the nature of the premises reasonably permits." Strack v. Great Atlantic and Pacific Tea Company, 35 Wis. 2d 51, 54 (1967). On the other hand, the duty to provide a safe place or safe employment is not absolute, the employer need only take steps that are "reasonably necessary." Miller v. Paine Lumber Company, 202 Wis. 77, 92 (1930); Leitner v. Milwaukee County, 94 Wis. 2d 180, 193 (1980). Nonetheless, the statute goes beyond simply ensuring a safe "physical situation" for employees (as opposed to frequenters) and includes a duty to warn workers of dangers incident to their employment. Miller, supra.

The commission is persuaded that the ALJ reasonably found a safe place violation, and therefore imposed liability under Wis. Stat. § 102.57. The applicant credibly testified he and coworkers had previously complained to the employer about the unsafe manner in which they were required to enter the storage trailer involved in the applicant's work injury. (Transcript, pages 16-17). The testimony of the employer's coordinator and driver manager, Andrew Wilke, indicated he himself would get into the trailer by first grabbing grooves in the back of the trailer, stepping up on his right foot on the "DOT bar and the ICC bar." Then, Mr. Wilke testified:

"I would place my left knee flat on the floor of the trailer, and at that point I would stand myself up after I was secured. I would make it a 2-step process. First getting myself up, stabilized, then stand up at that point."

Transcript, pages 38-39.

The commission is satisfied that, even as the employer's own witness describes it, the method of entering the storage trailer fell short of the duty required of the employer under the safe place statute.

cc: Attorney Richard Fortune
Attorney Douglas Feldman

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