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

ALAN K NIESEN, Applicant

PFISTER & VOGEL TANNING, Employer

NATIONAL UNION FIRE INS CO OF PITTSBURGH, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1990036368

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 November 4, 1999
niesena.wsd : 175 : 7  ND § 7.7

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The applicant asserts in his petition for commission review that the administrative law judge erred in determining that the applicant's injury did not arise out of a safety violation pursuant to Wis. Stat. § 102.57. The applicant testified that he was injured on February 23, 1989 when descending down a steep set of stairs to conduct a water sampling test when he slipped and fell and did the splits on a slippery floor due to a mixture of oil and water. The applicant contended that the ladder was too steep to be safe and that there was a defective unit which leaked fluid, and he believed that the floor was slippery due to a mixture of oil and water. The applicant states in his brief that if the employer was made aware of a hydraulic fluid leak on several occasions it should have taken steps to repair the leak or move the hydraulic cylinder away from the stairway.

However, the applicant indicated in an accident report that he was injured while carrying sampling equipment to the basement when he missed the last step on the steep stairway and fell down and did the splits. The applicant did not mention that he had slipped on any mixture of water and oil, or that the floor was slippery, but simply that he had missed the last step. In addition, the evidence did not indicate that the State of Wisconsin or OSHA issued any safety violations subsequent to the accident.

Mr. Kajune, the employer's maintenance supervisor, testified that the employer had applied for a permit for a ships ladder to be used in the water sampling area due to OSHA regulations, and that the employer needed a variance since it was also considered a fire escape. Mr. Kajune testified that according to the employer's maintenance records there were never any complaints or request for repairs about leaking hydraulic fluid at the bottom of the ladder. Mr. Wegehaupt, the employer's director of human services, testified that there had been no change in the ladder or the platform since 1989. Mr. Wegehaupt testified that the applicant had never reported a safety violation in the area in which he was injured and that the area had been inspected by OHSA with the last inspection in 1993, and had never been cited for any safety violation in relation to the ladder or the platform area.

The administrative law judge who could observe the demeanor of witnesses and therefore was in a good position to make a determination as to credibility did not credit the applicant's version. Based upon an independent review of the evidence in the record and given the inconsistencies in the applicant's testimony as compared to his report of the incident in which he did not mention slipping on any mixture of oil and water the commission has found nothing to warrant overturning the administrative law judge's credibility determination. The commission agrees with the administrative law judge that the evidence did not establish that the employer could have made the area any safer. The evidence did not establish that the stairs in question were defective or improper and that because of the limited area involved the employer installed metal ship ladders rather than conventional stairways, and had obtained a variance to do so. Based on the evidence of the applicant's initial report of the injury, as well as the testimony from Mr. Kajune as well as Mr. Wegehaupt, and given the fact that the employer had not been cited for any safety violations by the State of Wisconsin or OHSA in relation to the ladder or the platform, and given the lack of any corroborating testimony to establish that the area in which the injury occurred was slippery or unsafe on February 23, 1989, it was not established that the applicant's injury arose out of the employer's failure to provide a safe work environment or due to a safety violation. Therefore, the applicant's claim for benefits for a safety violation under Wis. Stat. § 102.57 must be dismissed.

cc: ATTORNEY ROBERT T WARD
WARD LAW FIRM

ATTORNEY ERIC E HOBBS
MICHAEL BEST & FRIEDRICH LLP

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