TANYA WETOR, Applicant

SOHN MFG INC., Employer

SECURA INSURANCE, 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 24, 2011
wetorta_wsd.doc:150: ND6  8.2; 8.8; 8.15

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/  Laurie R. McCallum, Commissioner

The respondent petitioned the decision of the ALJ, contending that the department's imposition of the penalty under Wis. Stat. § 102.57 is preempted by federal law. To support its argument, respondent cited Gade v. National Solid Wastes Management Association, 505 U.S. 88 (1992). The respondent also generally asserts it has been denied due process.(1) The commission disagrees. Due process in quasi-judicial administrative hearings turns on the presence or absence of "fair play" the elements of which are:

(1) the right to reasonably know the charges or claims;

(2) the right to meet such charges or claims with competent evidence; and

(3) the right to be heard by counsel upon the probative force of the evidence presented by both sides of the applicable law.

Wright v. LIRC, 210 Wis. 2d 289, 296 (Ct. App. 1997). See also Theodore Fleisner, Inc. v. ILHR Department, 65 Wis. 2d 317, 326 (1974); Waste Management Incorporated v. LIRC, 2008 WI App 50, 308 Wis.2d 763. To the extent that the respondent's argument relates to the Accident Investigation report, the commission notes that the respondent had the ability to call the investigator as a witness. There is no evidence of an attempt to do so or to otherwise challenge the contents of the report which constituted prima facie evidence pursuant to Wis. Stat. � 102.17 (1)(h). The respondent has not established that it was denied procedural due process.

Next, with respect to the pre-emption argument, 29 U.S.C. 653 § 4(b)(4) provides that the OSHA does not

supersede or in any manner affect any workmen's compensation law or . . . enlarge or diminish or affect in any other manner the common law or statutory rights, duties, or liabilities of employers and employees under any law with respect to injuries, diseases, or death of employees arising out of, or in the course of, employment.

Additionally, the commission disagrees with respondent's argument that the commission's decision is pre-empted given the Gade court language despite the savings clause. In Kohler Co. v. LIRC & Kleinhans, Case No. 92-CV-470 (Wis. Cir. Ct., Sheboygan Co., August 11, 1993), the circuit court dealt with a similar argument, with the court concluding that the Gade language was broad and that the Wisconsin Safe Place Statute was in existence long before the OSHA and using the OSHA "regulation to serve as a standard for measuring liability under Wis. Stat. � 101.11(1), Stats., as applied in � 102.57, Stats." does not necessarily violate the pre-emption provisions. This approach has been consistently applied by the commission in decisions issued since Gade.(2) The commission continues to do so here and affirms the ALJ's decision finding the safety violation penalty applied for the reasons stated in her decision.

cc: Attorney Denise Greathouse

Appealed to circuit court.  Affirmed.  Appealed to court of Appeals.  Affirmed August 7, 2013, Sohn Manufacturing and Secura Insurance v. LIRC and Tanya Wetor, 2013 WI App 112, 350 Wis. 2d 469, 838 N.W.2d 131. Affirmed October 7, 2014 per curiam, 2014 WI 112.

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(1)( Back ) The respondent raises a procedural due process claim, rather than a substantive one. With respect to substantive due process, neither the department nor the commission has the authority to address the constitutionality of statutes it enforces. See, McManus v. Dept. of Revenue, 155 Wis. 2d 450, 454, 455 N.W.2d 906 (Ct. App. 1990); Brown Co. v. H&SS Dept., 103 Wis. 2d 37, 43, 307 N.W.2d 247 (1981) and Society Ins. & James Meyer v. LIRC, et al., 326 Wis. 2d 444,  � 9.

(2)( Back ) See Schrauth v. Edward Gillen Co. and Hartford Accident & Indemnity Co., WC Claim No. 1993-049959 (LIRC April 30, 1996) (liability under � 102.57 affirmed finding that the DILHR investigation found a violation of the OSHA regulations related to "slings" where the OSHA rules were adopted by DILHR; the commission declined to address the constitutionality of the rule citing, McManus v. DOR, 155 Wis. 2d 450, 454 (Ct. App. 1990)); affm'd Edward E. Gillen Company Inc. v. LIRC et. al., Case No. 96-CV-003980 (Wis. Cir. Ct. Milwaukee Co., June 3, 1997); Gretz v. Goetze Corporation of America N/K/A Federal Mogul and Hartford Accident & Indemnity Co., WC Claim No. 1990-037421 (LIRC August 6, 1998) (liability found under � 102.57 based upon an OSHA standard and violation); Sippel Sr. v. American Marina and Accident Fund Ins. Co. of America, WC Claim No. 2003-049905 (LIRC August 8, 2007)(liability affirmed under � 102.57 based upon the employer's failure to provide its employees with an adequate ladder safety training program, violating OSHA standard 29 CFR 1926.1060(1), and the failure to properly secure the ladder using the employer's truck in violation of the Wisconsin Safe Place statute).

uploaded 2013/10/09