STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)
MICHAEL GEYER (DEC'D), Applicant
TAILOR MADE PRODUCTS INC, Employer
SECURITY INS CO OF HARTFORD, Insurer
WORKER'S COMPENSATION DECISION
Claim No. 1997011700
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.
ORDER
The findings and order of the administrative law judge are affirmed.
Dated and mailed Geyer
geyermi.wsd : 101 : 7 ND § 7.2, § 7.5 , § 7.6, § 7.7, § 7.10
/s/ David B. Falstad, Chairman
/s/ Pamela I. Anderson, Commissioner
/s/ James A. Rutkowski, Commissioner
MEMORANDUM OPINION
a. Facts and posture.
The applicant, Michael Geyer, was killed in an industrial accident. His spouse, acting in his behalf, seeks increased compensation under Wis. Stat. § 102.57, alleging the applicant's injuries were caused by an employer's safety violation. The ALJ found for the applicant, and awarded the maximum $15,000 for increased compensation. The employer appealed.
The employer makes plastic hangers used in the garment industry. The fatal accident occurred when the applicant was attempting to clear a hanger that was jammed in a molding machine. The applicant attempted to reach the jam by opening the back gate and reaching in. The machine cycled. The applicant was struck in the head by the ram from the mold, crushing his brain.
The molding machine should not have cycled if the back gate was open. A safety switch or limit switch had been built into the machine to prevent the machine from operating while the back gate was open. See Exhibit 17, pages 1 and 3. However, the safety switch had been tied down with a rag at the time of the accident, so that the machine could in fact operate with the back gate open. The tragic accident at issue here occurred as a result.
b. Employer's tolerance of bypassed switch a "substantial factor."
The facts in this case raise the issue of who was responsible for bypassing the safety switch on the back gate? The employer suggests that the applicant may have done it himself on the day of his demise. However, the ALJ concluded that the employer's supervisors had been aware for many months that the switch on the molding machine had been tied down or bypassed.
The record supports that conclusion. Another worker, Susan Lohry Delaney testified that the switches in other machines were tied off in a similar manner; that she had previously operated the machine in question and the switch had been tied down on those occasions; and that supervisors (specifically one named Pokorny) were aware that switches were being bypassed, but never objected. A janitor, Donald Swanson, gives similar testimony.
In addition, a state inspector, Shirley Noltemeyer, testified that one of the employer's owners (Palmisano) told her the safety switch on the machine had been bypassed "all the while," and specifically before the February 1997 injury. Synopsis, pages 9 and 10. This ties in with Ms. Noltemeyer's accident report, which states the switch had been bypassed for many months. Exhibit A.
Although co-owner Palmisano never testified at the hearing, his statements are those of a party opponent, or the agent of the party opponent, and so Ms. Noltemeyer's recounting of them is not hearsay. Wis. Stat. § 908.01(4)(b). The commission acknowledges that the employer offered testimony from another owner and members of its management to establish the employer and its supervisors were not aware the switches were tied down. However, none of the line supervisors actually testified. Given the credible testimony of Noltemeyer, Delaney and Swanson, the commission, like the ALJ, concludes that the employer's supervisors were aware the safety switch on the back gate of the machine was routinely being bypassed, but did not stop it.
In sum, the commission concludes that the employer's knowing failure to enforce procedures to prevent bypassing the safety switches was a substantial factor in bringing about the injury that caused the applicant's death, as the ALJ concluded. Milwaukee Forge v. ILHR Department, 66 Wis. 2d 428, 435-37 (1975).
c. Milwaukee Forge balancing test.
However, the report of the employer's safety expert Gigante suggests the applicant himself failed to follow proper procedure by not removing the jam from the front end of the molding machine. The next issue, then, is how to balance out an employer's violation of a safety rule against the allegation of negligence by the worker himself.
That question was also addressed by the supreme court in Milwaukee Forge v. ILHR Department, supra, which presented facts somewhat similar to this case. Milwaukee Forge involved a worker who used tongs for handling forgings in a press. Sometimes the forgings piled up on a "deck" on the other side of the press; a co-worker was supposed to pull these off from the other side. However, on the date of injury the co-worker was not present, so the injured worker tried to reach through the press and push the forgings off with his tongs. The tongs were too short; the press cycled; and the worker's hand was amputated.
Thus, in Milwaukee Forge, an employer's safe place violation in not having long enough tongs, had to be balanced against a worker's violation of a safety rule by placing his hand under the press. The commission's predecessor in that case imposed the Wis. Stat. § 102.57 penalty, concluding the injury was not due to the applicant's failure to follow a reasonable safety rule, but rather that the injury probably would have been avoided had the employer provided a safe place of employment.
The supreme court affirmed. The court noted prior cases in which a worker's failure to follow safety procedures could have been a contributing cause to the injury, but also the employer's concurrent failure to maintain a safe place was a "substantial factor" in bringing about the injury, so that the employer remained liable for increased compensation. In particular, the supreme court stated:
"`The statutes nowhere provide that the employer is to be exempted from the increased-compensation penalty provided by sec. 102.57, Stats., if the injury could have been avoided by compliance by the employee with all instructions and orders.'"
Milwaukee Forge v. ILHR Department, at 66 Wis. 2d 436 (quoting Eau Claire Cooperative v. Industrial Commission, 10 Wis. 2d 209, 218 (1960).)
The court went on to distinguish between those negligent acts of the injured worker which went beyond being a mere "intervening force" in the injury to constituting a "superseding cause." Quoting the Restatment of Torts, the court concluded that an employer would be relieved from the increased penalty if the worker's own negligent act was superseding cause.
When is a worker's own negligence an intervening force that amounts to a superseding cause? Again referring to the Restatement, the court stated that the worker's intervening negligence would not be a "superseding cause" if:
1. The employer should have realized at the time of its negligent conduct that a worker might do the intervening negligent act; or
2. A reasonable person knowing the situation existed when the worker did his intervening act would not regard it as highly extraordinary that the worker would have done the intervening act; or
3. The worker's intervening act was a normal consequence of a situation created by the employer's conduct and the manner in which it was done is not extraordinarily negligent.
Milwaukee Forge, at 66 Wis. 2d 428, 436-37 (1975). These three conditions are disjunctive; only one of them need apply to take the applicant's conduct out of the realm of superseding cause. (1)
d. Conclusion.
Applying this standard, any intervening negligence by the applicant here, while a contributing cause in his death, would not have been a superseding cause. The natural consequence of disabling a safety switch for a guard or gate (or permitting a safety switch to remain disabled) is that someone will deliberately try to pass the gate or guard while the machine is operating. There are few other reasons to disable the switch (as opposed to simply removing the gate); certainly none were offered here. Thus, a worker's action in passing the gate and reaching into the machine between cycles is not highly extraordinary, but rather almost expected behavior upon disabling a safety switch designed to shut down the machine if the gate is opened.
In sum, the commission concludes the employer's knowledge and tolerance of the bypassed switch for several months was a substantial factor bringing about the applicant's fatal injury. Any intervening negligence on the part of the applicant by not removing the jammed hanger from the front end was not a superseding cause. Thus, the employer is liable for the Wis. Stat. § 102.57 penalty.
e. Other issues.
The commission now turns to several assertions made by the employer's representative in the employer's brief. First, the representative suggests that the compromise or settlement agreement between the employer and OSHA states that OSHA agreed that the employer had no guilt. The commission's review of the settlement agreement (Exhibit C) does not support that interpretation.
Second, it is true that the ALJ noted the language in the OSHA settlement agreement stating that the compromise should not constitute an admission except in matters arising out of the OSHA prosecution. However, the ALJ did not refer again to the OSHA settlement agreement in her order, and did not rely on any purported admission in the compromise to find the employer violated the safe place statute and OSHA rules regarding safety guards and switches. Rather, she found a safety violation based on the record before her. See ALJ's decision, pages 7 and 8.
The employer's agent also objects that the ALJ somehow withheld evidence by relying on an exhibit submitted by the applicant (the settlement agreement, Exhibit C.) The commission cannot agree. An ALJ does not withhold evidence by relying on evidence in the record.
The employer is also troubled by the ALJ's admission of hearsay-like statements attributed by Ms. Delaney and Ms. Noltemeyer to the employer's owner and supervisor Pokorny, while not admitting hearsay statements made by a supervisor to Mr. Gigante offered by the employer to prove that the applicant had been disciplined. The difference, though, is that when offered by the applicant, the statements of the employer's owner and supervisors are admissions of the party opponent or the agent of the party opponent, and so not technically hearsay under the evidence rules. See Wis. Stat. § 908.01(4)(b).
The employer also complains that Ms. Noltemeyer's "OSHA report" (2) was admitted, but not the employer's certified statement from a witness who did not testify. This, too, may be easily explained. Ms. Noltemeyer testified to support her accident report (exhibit A), and was subject to cross-examination. In a similar vein, the ALJ admitted the report from the employer's expert, Mr. Gigante, who testified and was subject to cross- examination. However, the ALJ properly excluded the statement of supervisor Nelson who did not testify (Exhibit 12); he was not subject to cross- examination.
cc: ATTORNEY KATHERINE E CAMPBELL
LA ROWE GERLACH & ROY SC
O R GIGANTE
GIGANTE & ASSOCIATES LTD
STEPHEN M SOBOTA
ASSITANT ATTORNEY GENERAL
DEPARTMENT OF JUSTICE
MARGARET OCONNELL
WORKERS COMPENSATION DIVISION
VICKI GEYER
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Footnotes:
(1)( Back ) The tie into extraordinary negligence is borne out by Wis. Stat. § 7 102.58 (the statute providing for decreased compensation when the worker violates a safety rule); that section flatly requires that the safety rule violated must be one that was reasonably enforced by the employer.