STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)
DAVIES M TODUS, Applicant
SOMERS COMPANIES OF WIS, Employer
TRANSPORTATION INSURANCE CO, Insurer
WORKER'S COMPENSATION DECISION
Claim No. 1994039547
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 applicant, who was born in 1957, has held a commercial driver's license since 1985. He has driven 20 different dump trucks in his career. On the date of injury he had worked for the employer, a landscaping company, for about a year.
The applicant was injured in a motor vehicle accident on June 16, 1994. At the time, he was driving a dump truck loaded with fill four miles to a job site. One quarter of a mile from the job site, the truck shimmied, the dump box went up, and the truck fell on its side as the applicant tried to lower the dump box back down. He received $92,529.73 in various forms of compensation.
The applicant now seeks increased compensation under Wis. Stat. § 102.57, based on the employer's violation of a safety statute or order. Specifically, he contends that the accident was caused by an unsafe modification made to the levers that control the dump box, which caused the dump box to activate by itself while he was driving. The employer's position is that the modifications were not unsafe, and the accident was caused by the applicant's own negligence.
The dump box on the dump truck the applicant drove was controlled by red and black levers. The red lever was the "power take off" or PTO. The employer's owner admitted it moved very freely. The black lever raised and lowered the dump box. The black lever came up vertically from a horizontal rod which then went to the hydraulic lift mechanism that raised and lowered the dump box. Evidently, when the black lever is moved forward, the horizontal rod rotates, activating the dump box hydraulic lift mechanism.
The employer's mechanic, David Cieslewicz, added another lever to the horizontal rod going to the hydraulic lift. The parties refer to this as the "L-shaped lever." The L-shaped lever extends vertically and forward. The employer's mechanic, Dave Cieslewicz, admitted the L-shaped lever "would have added more weight."
The applicant also claims the black and red plastic handles themselves were added to the control levers by the employer, and that this upward extension made both levers unstable and top heavy. The employer does not admit to adding the handles, at least its former owner, Joseph Somers, and mechanic Cieslewicz do not recall increasing the length of the handles. However, the photographs in exhibit 1 show the identical handles in another vehicle, even though Mr. Somers testified that the vehicle shown in exhibit 1 was completely different from the Mack truck involved in the accident and shown in exhibit A.
The applicant contends the modifications made the levers "top-heavy." Mr. Somers denied the handles made the levers top-heavy, but also admitted the levers moved freely. Moreover, it is evident from the photographs that adding the L-shaped lever, at least, would change the center of gravity over the horizontal bar to which the black lever was attached, making the horizontal bar prone to rotate in the forward direction that activates the hydraulic lift for the dump box. Indeed, as noted above, Mr. Cieslewicz testified the L-shaped lever would have added more weight.
According to the applicant, the employer countered this by adding bungee cords (also called "straps" in the testimony) which stretched between the two truck seats and held the black and red levers back. If the black lever were restrained, of course, the horizontal rod and the L-shaped lever would not move either. The applicant testified he had never before encountered this type of arrangement while driving a dump truck.
The applicant testified that all the drivers knew that "without the bungee cord the gears would engage by themselves." What the applicant believed "all the drivers knew" is, of course, speculative hearsay. However, the applicant also testified directly that if one took the bungee cords off, the levers would engage.
The employer's witnesses admit that the employer itself added the bungee cords to its trucks; they were not original equipment. However, the employer contends, and its witnesses testified, that the purpose of the bungee cords was to eliminate driver error occurring when the driver forgot to move the handles back to disengage the power take-off or the hydraulic lift.
This testimony is undercut, however, by Mr. Somers' testimony that if the bungee cord failed, the power take-off would become engaged. Mr. Somers also testified that the levers moved very freely and would engage themselves. In addition, Mr. Cieslewicz testified the purpose of the bungee cords was to keep the levers out of the engaged position, indicating the purpose was not simply to disengage the levers if the driver forgot to.
The applicant testified, repeatedly, that bungee cords were in place when he set out loaded with fill on the trip to the jobsite. At some point thereafter, he claims, the bungee cords came out of place. He testified that the handles became engaged, the power take-off went into gear, and the truck box went up. He later testified that he recalled the power take-off lever was disengaged, though the commission is not certain whether this was before or after the accident.
Mr. Somers examined the truck after the accident. The bungee cord was not in place, but Mr. Somers could not tell if the red or black levers were forward. Mr. Somers also testified that he spoke with the applicant immediately after the accident, apparently at or en route to the hospital. According to the owner, the applicant admitted he was not using the straps at the time of the accident. However, the owner also testified the applicant said he was not hurt. Following the accident, the applicant was off work for a considerable time, and underwent two back surgeries.
As noted above, the applicant seeks increased compensation under Wis. Stat. § 102.57. That section provides, in relevant part:
"If injury is caused by the failure of the employer to comply with any statute or lawful order of the department, compensation and death benefits shall be increased 15% but the total increase may not exceed $15,000."
Thus, there must not only be a violation of a safety statute or department order, but also the violation must cause the injury. The supreme court has expressly required that the safety violation be a "substantial factor" in bringing about the injury. Milwaukee Forge v. ILHR Department, 66 Wis. 2d 428, 435-37 (1975).
Assuming, that an employer violates a statute or department order and that the
violation was a substantial factor in bringing about the injury, the next issue would be
how to balance against a worker's negligent conduct, if any, with respect to the accident.
That question was also addressed by the supreme court in Milwaukee Forge v.
ILHR Department, supra. (1)
In that case, 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 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 Restatement of Torts, the court concluded that an employer would be relieved from the increased penalty if the worker's own negligent act was a 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 negligence.
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. Applying these standards, the court recognized that a case could exist where both an employer would be liable for a 15 percent penalty under Wis. Stat. § 102.57, and the insurer's liability to the applicant would be reduced by 15 percent under Wis. Stat. § 102.58. (2)
Analytically, then, the commission is left with three questions: First, did the employer violate a safety statute or order? Second, if so, was the violation a substantial factor in the applicant's injury? Third, if so, was the applicant's negligence a "superseding cause" which immunizes the employer from liability even in the face of the employer's safety violation which is a substantial factor in the applicant's injury?
The applicant claims that the employer violated a number of different safety statutes:
The commission is satisfied that the employer violated 49 CFR 393.3. (3) The employer does not dispute that the dump truck the applicant was operating was a "commercial motor vehicle" as that term is defined with respect to the federal safety regulations in 49 CFR 390.5. Instead, the employer asserts that dump truck power take-off and hydraulic lift levers are not among the types of safety devices listed in 49 CFR part 393 generally, and so are not covered in the provision regulating modifications under 49 CFR 393.3. However, 49 CFR, part 393 is not limited to safety devices like lights, brakes, wiring, or suspension. Indeed, regulation covers sleeper berths and the placement of on-board TVs used for recreation 49 CFR 393.76 and 393.88. Further, 49 CFR 393.3 by its own terms covers equipment other than that specified within the regulations. The commission reads 49 CFR 393.3 to prohibit any unsafe modification of a dump truck, even if the modification is not to the lights, brakes, etc.
The employer points to the testimony of its safety director, Thomas Tornow, who said the addition of the L-lever did not affect safety. The employer asserts that testimony proves it did not violate 49 CFR 393.3. However, the commission believes it is not bound by Mr. Tornow's testimony on the question of whether the employer in fact violated the regulation.
The employer admits adding the L-lever to the horizontal rod that controls the hydraulic lift for the dump box. The employer claims that the handles and the L- lever did not add weight to the red (power take off) and black (hydraulic lift) lever. However, its own witness, mechanic Cieslewicz testified that the L-lever, at least, added weight.
In addition, Mr. Somers testified that the red (power take-off) and black (hydraulic lift) lever engaged easily and that both levers engaged themselves. The commission cannot conclude the levers were manufactured to engage themselves. Further, the red and black handles which the applicant contends the employer added to the truck are present in two different makes of truck. The commission believes it unlikely that different manufacturers would have used identical red and black levers in their trucks, and concludes the employer added the handles itself. In sum, the commission concludes that the employer modified the truck by adding the L-lever and the plastic handles, and that the modifications decreased the safety of the truck in violation of 49 CFR 363.3.
The commission does not believe the fact that the employer used bungee cords to restrain the levers requires a different conclusion. The commission concludes the bungee cords were used not only to move the handles back in case of driver error, but also to keep the handles-as modified by the employer-from engaging themselves. The bungee cords may have increased the safety of the trucks, but that does not mean the addition of the L-lever and plastic handles did not decrease the safety of the truck in which the applicant was injured.
The commission was concerned by the fact that the applicant apparently did not specifically advance 49 CFR 393.3 as the applicable rule violated at the hearing. However, the activity prohibited by the rule-making a dangerous modification- was clearly put at issue at the hearing. The commission cannot conclude the employer was surprised or prejudiced in this case by lack of notice of the specific statute itself.
The next question is whether the modification of the levers was a substantial factor in
the applicant's injury. This turns on whether the modifications were a substantial factor
in raising the dump box while the applicant was en route to the dump site.
The applicant testified, credibly to the ALJ, that the bungee cords were in place before
he set off for the dump site. The commission is satisfied based on the ALJ's firsthand
observation of the applicant as he testified, that the bungee cord was in fact in place
when the applicant set off for the dump site.
The only reasonable conclusion is that the modification of the levers, which made them top heavy, was a substantial cause in the accident. There is no evidence that the applicant himself engaged the levers accidentally while driving. If the bungee cords somehow became displaced en route, the commission is satisfied that the modification of the levers would cause the levers to move forward by themselves, activate the dump box, and tip the truck.
Although the commission does not so find, one could argue that the applicant moved the levers back to disengage the power take-off and hydraulic lift before setting off for the dump site, but failed to use the bungee cords to hold them in place. In that event, however, the modification of the levers would still be a substantial factor in causing them to move forward and engage themselves while the applicant was en route. Again, there is no evidence the applicant moved the levers en route. Under this hypothetical set of facts, the applicant's failure to use the bungee cord may have been intervening negligence, but that does not eliminate the modifications as a "substantial factor" in causing the accident.
The commission considered the possibility the applicant failed not only to use the bungee cords but also to disengage the power taken-off and hydraulic lift by making sure levers were moved back when he set off for the dump site. (4) In that case, presumably, then the dump box could have opened on the road regardless of the modification of the levers. But the commission is left with the unanswered questions: If the levers were in fact forward and the power take-off and hydraulic lift engaged when the applicant left for the dump site, would not the dump box have always been up? If not, how was the dump box raised and lowered? Would not the levers have to be back for the dump box remain down, as the dump box clearly was, until the accident 3.75 miles down the road caused its contents to spill?
The final inquiry is whether the applicant's conduct with respect to the accident was blameless, merely intervening negligence, or a superseding cause. Because, the commission adopts the presiding ALJ's finding that the applicant left for the job site with the levers back and the bungee cord in place, as the applicant testified, the commission concludes his actions in this case did not constitute intervening negligence, much less a superseding cause, with respect to the accident.
Again, however, even assuming the applicant failed to put the bungee cord in place when he left for the dump site, that does not prove a superseding cause in the accident. Clearly failing to use the bungee cords in violation of the employer's rules or practices would be intervening negligence. But the reason, or part of the reason, for the bungee cords is to prevent the handles from slipping and engaging themselves because of the employer's modifications. Under these circumstances, the employer should have known that a worker might try to bypass or fail to secure the bungee cords when operating the truck and a worker's failure to use the employer-installed bungee cords, while negligent, would not be extraordinarily negligent.
The applicant is therefore entitled to increased compensation under Wis. Stat. § 102.57. He was paid $92,529.73 in disability compensation for his injury. Fifteen percent of that amount is $13,879.46. He agreed to an attorney fee which is set under Wis. Stat. § 102.26 at twenty percent of the award. Accordingly, the amount due the applicant's attorney within 30 days is $2,775.89, while the amount due the applicant is $ 11,103.57.
NOW, THEREFORE, the Labor and Industry Review Commission makes this
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 shall pay to the applicant Eleven thousand one hundred three dollars and fifty-seven cents ($11,103.57) in increased compensation, and to his attorney Two thousand seven hundred seventy-five dollars and eighty-nine cents ($2,775.89) in fees.
The insurer is secondarily liable for the payments ordered above, as set out in Wis. Stat. § 102.62.
Dated and mailed April 5, 2000
todusda.wrr : 101 : 1 ND § 7.2 § 7.18
/s/ David B. Falstad, Chairman
/s/ James A. Rutkowski, Commissioner
cc: ATTORNEY ROBERT J GRAY
JEROME A MAEDER SC
ATTORNEY THOMAS W BERTZ
ANDERSON SHANNON O'BRIEN RICE & BERTZ
PAMELA I. ANDERSON, COMMISSIONER (dissenting):
I am unable to agree with the result reached by the majority herein and I dissent. Factually, I agree that the employer added the L-shaped lever which was connected to the black lever (the hydraulic lift). David Cieslewisz, a mechanic for the employer, testified "I'm not aware of the age of the truck or that the handle was modified. I added the third lever. That would add more weight. I`m not aware of the lengthening the other levers." I am unwilling to infer that the handles were added because they are the same kind in two trucks. I was not able to see any weld below the handle in Exhibit A-32 which would support the employe's claim that the handles were extended.
I believe that the employe did not have the bungee cord in use when he started his trip that ended in the accident. Since both the hydraulic lift and the power take off need to be engaged before the truck bed goes up, I believe that the employe failed to put the levers back in the original position after the box was lowered. The employe admitted to the owner on the day of the incident he wasn't using the bungee cord. The employe testified "If the cord had been on it probably wouldn't have happened. The box will lift if the levers are not disengaged."
Even if the L-lever added weight to the hydraulic lift which caused it to engage, that does not explain how the power take off engaged since it was not linked to the hydraulic lift. Since I do not agree with the majority that the handles were added or the metal extended on the red and black levers, I do not find a violation of a safety regulation that lead to the accident. I also would not find a decreased compensation under § 102.58.
Therefore, I would reverse on the safety violation and dismiss.
____________________________________
Pamela I. Anderson, Commissioner
todusda.wrr
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Footnotes:
(1)( Back ) 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.
(2)( Back ) Wis. Stat. § 102.58 provides that "if injury is caused by the failure of the employe to use safety devices which are provided in accordance with any statute or lawful order of the department, . or if injury results from the employe's failure to obey any reasonable rule adopted and reasonably enforced by the employer for the safety of the employe, the compensation . provided in this chapter shall be reduced by 15 percent." As noted above, the court in Milwaukee Forge has indicated that both an employer and an employe may be subject to their respective penalties under Wis. Stat. § 102.57 and 102.58 in the same case. That is, an employer's safety violation and an employe's violation of another rule may both be substantial factors in the same accident. An employe's liability under Wis. Stat. § 102.58, in that case would not inure to the benefit of the employer (who must still pay the penalty for its own safety violation; rather, the insurer would only have to pay 85 percent of a normal award. In this case, the insurer has not filed an application seeking reduction of its liability under Wis. Stat. § 102.58.
(3)( Back ) The applicant asserts that the commission need not follow the federal court's ruling concerning the state safe place statute in Hopkins, and that the holding is distinguishable anyway. However, because the commission concludes that the employer violated 49 CFR 393.3 and the federal statute by which it is promulgated, the commission does not address the applicability of Wis. Stat. § 101.11.