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

JEFFERY LAST, Applicant

KLEIBER CONSTRUCTION, Employer

RURAL MUTUAL INS CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1997038812

The applicant submitted a petition for commission review alleging error in the administrative law judge's Findings and Order issued on April 1, 1999. Respondents submitted an answer to the petition and briefs were submitted by the parties. Compensable injuries to the applicant's left hand and left shoulder were conceded as having occurred on February 3, 1997, and at issue in this proceeding are: (1) An unreasonable refusal to rehire claim under Wis. Stat. § 102.35(3); and (2) 15 percent increase in compensation for violation of a safety provision pursuant to Wis. Stat. § 102.57. Applicant's attorney also raised issues concerning attorney fees.

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, whose birth date is May 16, 1974, was employed as a construction worker for the employer, a construction subcontractor. On February 3, 1997, he sustained a conceded work injury when he lost his balance and fell through a 3- by-12-foot opening in the floor of a house under construction. The opening was for a basement stairway which had not yet been constructed. In the fall, the applicant sustained a laceration to his left hand and a left shoulder injury. He was treated at an emergency room the day of the accident, but it was not until February 18, 1997, that it was discovered that he had fractured the greater tuberosity of his left shoulder.

The applicant was given the day off work on February 4, 1997, but worked the next three days. His shoulder continued to be sore. He was not scheduled to work on either February 8 or 9, 1997, but he worked again from February 10 through 12, 1997. He was scheduled to work on February 13, 14, and 15, 1997, but did not show up. The employer's owner, Joel Kleiber, credibly testified that the applicant also failed to call with an excuse for his absences on these days, and that Kleiber therefore considered him to have abandoned his job. On February 14, 1997, the applicant's sister telephoned the employer regarding his paycheck.

At about 5 p.m. on Monday, February 17, 1997, Kleiber spoke with the applicant on the phone and the applicant told him: "There was a doctor's excuse." Kleiber then asked the applicant why he had not called the previous week, the applicant did not have an answer, and Kleiber told him he was fired. The applicant had been told at the time of hiring that if he did not show up for work he would be fired. The employer is a small business and relied upon the applicant to report to work, or give timely notice of an inability to do so. The credible evidence indicates that the applicant failed to do either of these after February 12, 1997. Accordingly, the employer demonstrated reasonable cause for discharging the applicant, and the claim for a violation of Wis. Stat. § 102.35(3) will be dismissed.

The clinic notes of the applicant's treating physicians indicate that he fell approximately 8 feet when he fell through the floor opening on February 3, 1997. 29 CFR 1926.501(a)(4) provides:

"(4) Holes. Each employee on walking/working surfaces shall be protected from falling through holes (including skylights) more than 6 feet (1.8 m) above lower levels, by personal fall arrest systems, covers, or guardrail systems erected around such holes."

In addition, Wis. Admin. Code ch. Comm. 51.162(1)(d) provides:

Comm 51.162 Guardrails. (1) WHERE REQUIRED. Guardrails shall be provided in all of the following conditions unless otherwise specified in the occupancy chapters of this code:

(d) On openings through floors and roofs.

The employer failed to construct a guardrail or safety net system around the floor opening on February 3, 1997, thus violating both the federal and state administrative codes. The employer's failure in this regard also constituted a violation of Wis. Stat. § 101.11(1), which provides:

101.11 Employer's duty to furnish safe employment and place. (1) Every employer shall furnish employment which shall be safe for the employes therein and shall furnish a place of employment which shall be safe for employes therein and for frequenters thereof and shall furnish and use safety devices and safeguards, and shall adopt and use methods and processes reasonably adequate to render such employment and places of employment safe, and shall do every other thing reasonably necessary to protect the left, health, safety, and welfare of such employes and frequenters. Every employer and every owner of a place of employment or a public building now or hereafter constructed shall so construct, repair or maintain such place of employment or public building as to render the same safe.

Kleiber asserted that since his business was only a subcontractor on the job, he did not believe it was his business's responsibility to guard the opening. However, regardless of whether he was a subcontractor or a general contractor, he was required to follow the codes when exposing his employes to hazards defined in the law. Kleiber described his business's responsibility as including "setting the floor" and the obvious inference is that performing this construction task exposed the applicant to the danger of an unguarded opening in the floor. The applicant credibly testified that it would have taken approximately 5 minutes to have constructed a guardrail around the opening, but the employer chose to ignore this foreseeable danger, and in doing so violated the federal and state administrative codes, as well as Wis. Stat. § 101.11(1). This action resulted in the applicant's injury, and constituted a violation of Wis. Stat. § 102.57. Therefore, the applicant is entitled to the stipulated amount for the violation of Wis. Stat. § 102.57, which is $1,376.25. A twenty percent attorney's fee is due against this amount.

Applicant's attorney has asserted that errors were made in the department's assessment of her attorney fees, both for a limited compromise agreement previously approved in this case, and for primary compensation paid prior to the completion of the limited compromise agreement. The commission has no jurisdiction in this proceeding over the provisions of the limited compromise agreement. No issue concerning the limited compromise was noticed for hearing, nor is the agreement even in the record before the commission.

Applicant's attorney also claims fees are due against primary compensation allegedly paid by stipulation, prior to the completion of the limited compromise. The record does not demonstrate when such primary compensation was paid, or in what amount. It is evident that such compensation would have been paid by stipulation, since there was no department order prior to the limited compromise. The stipulation should have included allowance for attorney fees, but if it did not, the compensation has already been paid in full to the applicant and it is the applicant who owes fees for this compensation to his attorney (pursuant to their fee agreement). The commission is not prepared to remand this matter for further hearing concerning what is currently an issue to be resolved between the applicant and his attorney.

Now, therefore, this

ORDER

Within 30 days from this date, the employer or its insurance carrier shall pay to the applicant, for violation of Wis. Stat. § 102.57, the sum of One thousand one hundred-one dollars ($1,101); and to applicant's attorney, Holly Lutz, fees in the amount of Two hundred seventy-five dollars and twenty-five cents. The application for unreasonable refusal to rehire under Wis. Stat. § 102.35(3), is dismissed.

Dated and mailed October 27, 1999
lastje.wrr : 185 : 6 ND § 7.4

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission reversed the administrative law judge's finding concerning Wis. Stat. § 102.57, based on the application of the law to undisputed facts, which were not dependent on credibility or demeanor impressions of the witnesses. The administrative law judge referred to the "totality of the circumstances" in this case, and asserted that it was the department's responsibility to "draw the line" and determine whether the employer acted unreasonably by not installing a railing around the floor opening. The administrative law judge's approach ignored the law as established in 29 CFR 1926.501(a)(4), in Wis. Admin. Code ch. Comm 51.162(1)(d), and in Wis. Stat. § 102.11(1). The employer's failure to construct a railing or safety net system was unsafe and violated the law. It clearly invoked the penalty provision of Wis. Stat. § 102.57.

cc: ATTORNEY HOLLY LUTZ
LAW OFFICES OF HOLLY LUTZ

ATTORNEY JAMES E LOW
COOKS LOW & CONNELL SC

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