STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)
JOHN ZINKOWICH, Employe
ATHENS WOOD PRODUCTS INC, Employer
SECURA INSURANCE, Insurer
WORKER'S COMPENSATION DECISION
Claim No. 1997044359
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 makes the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The employe, John Zinkowich, was born in July 1980. He was injured a few days after his 17th birthday in July 1997. At the time of his injury, the employe was assigned the job of off-bearing or removing wood from a double end detoner saw, and stacking the wood on a nearby pallet.
The employe was hurt when he reached into the machine, past the flexible plastic dust cover, to clear out some wood which had fallen to the bottom part of the conveyor chain. His right index finger and thumb struck a saw blade and were cut but not amputated. He ultimately received $9,368.32 in normal disability compensation.
The double end detoner saw cuts wood to pre-set lengths. At one end of the machine, an adult worker loads the wood (1) onto conveyor chains running between two saw blades; the wood passes along the conveyor chains to the saw blades; both ends of the wood are sawn off; the sawn boards are then conveyed past the saw blades through a flexible plastic dust cover and to the other end of the machine; the employe (and other minor workers) would remove the boards from that end of the machine and stack them on a pallet.
During the cutting process, the wood is conveyed away from the saw blades themselves by a conveyor chain. However, when the worker removes the wood, it is still physically on the chain at the end of the saw table itself before the wood falls to the ground. This is clear from the testimony of all the workers, including those called by the respondent.
The employe and two young male coworkers (who testified for the employe) testified they routinely reached past the dust cover (or in toward the saw blade) to remove wood to stay ahead. Two young female workers (who testified for the employer) testified they would never do such a thing. One young woman said she was instructed not to put her hand past the dust cover. The two young men testified that they never received such instructions. The workers all agree that the warning signs shown in the pictures were not on the machine at the time the employe was injured. The employe, for his part, testified that workers routinely reached in past the dust cover to keep up, and that his supervisor knew they did so. Of course, the employe was injured when he reached past the dust cover to clear out scrap material, not to remove a sawn board for stacking on a pallet.
As is evident from the pictures and the testimony of the witness, the dust cover which the wood passed through was about 18 inches from the edge of saw blades. The conveyor chain extended out another six inches or so from that. A person standing at the end of the saw can reach past the dust cover and touch the blades; that was how the employe hurt himself.
The only issue before the commission is whether the employe was engaged in employment prohibited to minors when he was injured, and so entitled to treble compensation (to a maximum of $15,000) under Wis. Stat. § 102.60(3). That section provides:
102.60 Minor illegally employed, compensation. When the injury is sustained by a minor illegally employed, compensation and death benefits shall be as follows:
(3) Treble the amount otherwise recoverable if the injured employe is a minor of permit age, and at the time of the injury is employed, required, suffered, or permitted to work at prohibited employment.
The administrative rules governing child labor generally are set forth in Wis. Admin. Code, ch. DWD 270. The specific employments that are prohibited for minors are set out in Wis. Admin. Code 270.06. The parties agree that Wis. Admin. Code DWD 270.06(20)(a)3, which deals with woodworking power-driven machines is applicable in this case. That section provides:
DWD 270.06 Minimum age for hazardous employment. The employments and places of employment designated herein shall be deemed to be dangerous or prejudicial to the life, health, safety, and/or welfare of minors under the ages specified, and their employment may be dangerous or prejudicial to the life, health, safety and/or welfare of other employes or frequenters and no employer shall employ or permit such minors to work in such employments.
(20) WOODWORKING POWER-DRIVEN MACHINES. (a) Finding and declaration of fact. The following occupations involved in the operation of power-driven woodworking machines are particularly hazardous:
3. The occupations of off-bearing from circular saws and from guillotine-action veneer clippers.
(b) Definitions. As used in this section:
1. The term "power-driven woodworking machines" shall mean all fixed or portable machines or tools driven by power and used or designed for cutting, shaping, forming, surfacing, nailing, stapling, wire stitching, fastening, or otherwise assembling, pressing, or printing wood or veneer.
2. The term "off-bearing" shall mean the removal of material or refuse directly from a saw table or from the point of operation. Operations not considered as off-bearing within the intent of this section include (i) the removal of material or refuse from a circular saw or guillotine- action veneer clipper where the material or refuse has been conveyed away from the saw table or point of operation by a gravity chute or by some mechanical means such as a moving belt or expulsion roller, and (ii) the following operations when they do not involve the removal of material or refuse directly from a saw table or from the point of operation: the carrying, moving, or transporting of materials from one machine to another or from one part of a plant to another; the piling, stacking, or arranging of materials for feeding into a machine by another person; and the sorting, tying, bundling, or loading of materials.
The commission reads Wis. Adm. Code DWD 270.06(20)(b)2 to define prohibited off-bearing work to include exactly the type of work the employe was doing when injured. He removed wood from a saw table. While the wood was conveyed past the saw blades, it was still on the table when the employe removed it. In other words, regardless of whether the worker reached past the dust cover or not, the job the employe was assigned when injured was prohibited employment.
The commission has considered the assertion that the job instead fit the exception to prohibited off-bearing in DWD 270.06(20)(b)2(i) because when the employe removed wood it was, though still on the saw table, past the "point of operation." However, that argument fails for several reasons. First, one can reasonably read the "point of operation" language to refer to a guillotine-action veneer clipper only, otherwise the reference to the saw table would be redundant as one would assume wood conveyed off the saw table would necessarily be past the "point of operation." Second, subparagraph (ii) states that the sorting and loading of materials (which is what the employe did by stacking wood on a pallet) is not considered an off- bearing operation if it does not involve the removal of wood directly from a saw table or from the point of operation, indicating that the wood must be both off the saw table and past the point of operation (assuming the words "point of operation" apply to saws.) Third, even if the wood was conveyed a short distance past the moving saw blades, the commission cannot conclude it was past the "point of operation" in any event where, as here, the saw blades were within an arms length of where the off-bearer stood and the blades were "guarded" only by a flexible dust cover.
On this issue, the commission notes particularly the testimony of the superviser Jason Belter. One may reasonably infer from Mr. Belter's testimony that he realized that minors should not be removing the wood from the double end detoner saw itself. He first testified that he told the workers to unload the wood by picking it from the floor after it fell from the saw. He said he was aware that employes would pick the wood off the belt before it hit the floor, but that that was contrary to his instruction. Somewhat inconsistently, Belter then testified that it was permissible to take the wood off the machine if the worker could do it without reaching past the dust cover. He then completely changed his story and said the workers were supposed to remove the wood from the machine itself.
The commission acknowledges that an accident report prepared by DWD's Equal Rights Division (which has jurisdiction over labor standards) indicates that the employe's normal job was not prohibited employment for minors. The investigator evidently reached this conclusion because "a moving chain . moved [the wood] away from the cutting blades of the woodworking machine that was protected by a guard." See exhibit B.
The commission does not lightly disregard the investigator's report, which was offered by the employe. However, the applicable administrative rule does not permit off-bearing from a saw table if the blades are guarded. Instead, the rule says the wood must be conveyed away from the saw table or point of operation. As set out above, the commission concludes that the work the employe performed was on the saw table and not past the point of operation. Indeed, the applicant did not reach past a "guard" in any real sense, but a flexible dust cover. Further, the commission is not certain upon what record the investigator based his opinion, and cannot conclude that it was as complete as the record developed by the ALJ at the hearing.
Finally, as the ALJ observed, the employe and his male coworkers testified credibly that the employer permitted workers to reach past the dust cover to remove wood to avoid falling behind in the stacking process. This "reaching-in" practice allowed the minors to remove wood from an area that cannot be considered past the "point of operation" of the saw by any definition. Thus, even if one does not accept the commission's finding that removing sawn board from the double end detoner saw table is prohibited employment in and of itself, the "reaching-in" method by which the employe routinely performed the off-bearing assigment with the tolerance of the employer was prohibited employment.
The employer accurately points out that the employe was injured while reaching past the dust cover to remove scrap wood, not to remove sawn boards for stacking. However, the assigment he was given at the time of his injury was prohibited employment for minors, and the employe was injured in the course of that assignment.
In sum, at the time of the injury, the employe was employed, required, suffered, or permitted to work at prohibited employment. The employer is therefor primarily liable, and the insurer secondary liable, for increased compensation under Wis. Stat. § § 102.60(3) and 102.62. The employe has received primary compensation in the sum of $9,368.32, so treble compensation ($28,104.96) would result in increased compensation or an additional payment of $18,736.64. However, Wis. Stat. § 102.60(9) limits the increased compensation awardable under Wis. Stat. § 102.60(3) to $15,000. Accordingly, the employer and insurer are liable for increased compensation in that amount.
The employe agreed to a twenty percent fee under Wis. Stat. § 102.26, which works out to $3,000. The fee shall be deducted from the total award, leaving an amount payable to the employe of $12,000.
These findings and order pertain only to the employer's and insurer's liability under Wis. Stat. § 102.60. This order is left interlocutory on all other issues arising from the injury of July 24, 1997.
NOW, THEREFORE, the Labor and Industry Review Commission makes this
INTERLOCUTORY ORDER
The findings and order of the administrative law judge are modified to conform to the foregoing and, as modified, are affirmed.
Within 30 days from the date of this order, the employer, Athens Wood Products, Inc., shall pay all of the following:
1. To the employe, John Zinkowich, the sum of Twelve thousand dollars and no cents ($12,000.00).
2. To the employe's attorney, James B. Connell, Three thousand dollars and no cents ($3,000.00) in attorney fees.
Liability for the increased compensation and fee awarded under this order shall be primary on the part of the employer and secondary on the part of the insurer under Wis. Stat. § 102.62.
These findings and order relate only to the issue of treble compensation under Wis. Stat. § 102.60. Jurisdiction is reserved for other findings, orders, and awards as are warranted.
Dated and mailed September 24, 1999
zinkowi.wrr : 101 : 5 ND § 7.41
/s/ David B. Falstad, Chairman
/s/ Pamela I. Anderson, Commissioner
/s/ James A. Rutkowski, Commissioner
cc: ATTORNEY JAMES B CONNELL
CROOKS LOW CONNELL & ROTTIER SC
ATTORNEY JAMES A HIGGINS
BYRNE GOYKE TILLISCH & HIGGINS SC
ATTORNEY JAN M SCHROEDER
PETERSON JOHNSON & MURRAY SC
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Footnotes:
(1)( Back ) The employer seems to agree that the person loading the machine cannot be a minor, synopsis, page 18, par. 6.