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

MARK JOHNSON (DEC'D),
THERESA JOHNSON BUHRAND, Applicant

CITY OF MILWAUKEE PUBLIC WORKS, Employer

CITY OF MILWAUKEE, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 92059229

An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development (Department of Industry, Labor and Human Relations prior to July 1, 1996) issued a decision in this matter. A timely petition for review was filed. The commission originally issued a decision on November 18, 1996. The commission's decision was affirmed on appeal by the circuit court for Milwaukee County in decision dated July 29, 1997. On March 2, 1999, the court of appeals reversed the order of the circuit court and remanded the case back to the commission. The circuit court, by order dated April 20, 1999, likewise remanded the case back to the commission.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on the applicable law, records and evidence in this case, and in accordance with the aforementioned remand orders, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Prior to his employment with the employer the applicant obtained a bachelor's degree in Natural Resource Management in 1981, a degree which provides technical information regarding the management of trees and forest, wildlife, watersheds, and soils. He worked seasonally from 1981 to 1983 for the Superior Forest Service in Arkansas where his activities included planting trees and herbicide application. In 1983 and 1984 he worked for the Wisconsin Department of Natural Resources Youth Conservation Corps. as a work project supervisor and counselor and then as an Assistant Superintendent of the camp facilities.

The applicant began working for the employer as an arborist trainee in April of 1985. As an arborist trainee the applicant was trained, primarily, in how to prune trees by using a saddle and rope and actually pruning. After six months he was promoted to an arborist I position. An arborist I prunes, plants, removes trees, tops trees, and removes tree trunks/stumps. Keith Pacala, an Assistant District Supervisor for the north side, was involved in applicant's training and personally instructed the applicant on how to fell a tree including the notch, the angle of the notch that has to be removed from the tree, and the back cut. Mr. Pacala has personally felled over 8,000 trees and has been involved with about 20,000 fellings. Mr. Pacala taught all workers that after the cut is made they should step back a step or two and watch the direction of the trunk to see which way it is falling. Arborist Is and IIs received no other formal training regarding tree removal procedures. Rather, workers learned how to fell a tree by observing more experienced arborists and by doing the felling. That is, training is on the job training. The number of hands-on tree removals depends on whether trainees were in an area where tree felling was occurring. The maximum diameter of trees dropped by trainees was 16 inches. There was no training with regard to difficult trees, for example, large trees or leaning trees.

Applicant was an outstanding worker. Based on his work record, abilities, leadership and decision-making skills, and exam scores, he was promoted to an arborist II (crew leader) position in September of 1990. During 1992, the applicant was involved in the removal of 167 trees. This did not mean that he personally cut down 167 trees, but that he was on the job site. The diameter of the trees ranged from 2 inches to 40 inches. (1)   In addition, the applicant cut trees on the side for four or five years with other workers, Mr. Rushmer and Mr. Genich.

On September 25, 1992, the applicant was foreman on a crew assigned to remove trees. His crew consisted of two workers classified as arborist Is, Todd Prickril and Ben Pettigrew. The three had worked together cutting trees the previous week. Neither Mr. Prickril nor Mr. Pettigrew was considered by the employer to be a self-starter. Also assigned to the crew was Charles Harvey, an equipment operator employed by the City's Municipal Equipment Division.

As arborist II, applicant determined how the tree was to be cut. Applicant first decided to top off some of the tree to reduce its weight. The tree, which was approximately 25 inches in diameter, was in the grassy area between the road and the sidewalk. (2)   The applicant first had the tree topped to remove high branches and thus weight from the top of the tree. The plan was to have the tree fall across the road, i.e. to the southwest. The tree in question had a lean to it, because of its branches, in the opposite direction from where it was to fall. A rope was attached to the top of the tree and a front end loader, operated by Mr. Harvey and positioned in the street, pulled the rope so it was tight. Ben Pettigrew was assigned to watch for pedestrians. Mr. Pettigrew's job did not include giving any signals. Todd Prickril stood closer to the applicant and watched him cut the tree. It was Mr. Prickril's job to wait for a nod from the applicant, at which time Mr. Prickril was to signal Mr. Harvey to pull the rope with the front end loader to direct the tree's fall across the road. There was no standardized communication policy within the forestry department. Rather, the arborist II on each crew was responsible for establishing the form of communication that would take place and to transmit this information to the other workers on the crew. This allowed the arborist II the flexibility to determine what type of communication worked best for the circumstances, e.g. a nod or wave in high traffic areas where vocal communication might not be heard.

Applicant made the initial notch or wedgecut, which consists of a topcut and undercut, made in the shape of a wedge. He then went around the tree to make the backcut, which is a straight cut made toward the place where the top and undercut meet. As applicant was about to complete the backcut Mr. Prickril waited for the nod which would indicate that the tree should be pulled. While awaiting the nod, Mr. Pettigrew gave Mr. Prickril an indication to get the rope good and tight. The rope remained taut throughout applicant's cut evidenced by the fact that the saw did not become pinched in the cut. Mr. Prickril then raised his hand to let Mr. Harvey know not to pull yet, but to be ready. As Mr. Prickril saw the applicant lift his head Mr. Prickril did not wait for the nod, because he knew that it was ready to be pulled, and signaled the operator to give it a pull. The tree started in the anticipated direction to the southwest over the street. At that point, the applicant appeared to relax. At some point the applicant stood up from his crouched position and, seeming to sense that the tree was going in the wrong direction, to the southeast across the sidewalk, started to run with the saw in his hand. Applicant appeared to initially take some steps in the northerly direction and, in an arcing motion, ran back onto the sidewalk, heading south. Applicant stooped to set the saw down in the middle of his motion to get away from the tree. Applicant appeared to have his eyes on the tree at all times but ran into its path. The applicant was killed when the tree fell on his back.

Mr. Pacala viewed the cut of the tree after the accident and observed that the back cut was in proper relationship to the wedge. The cut, the way that it appeared in the tree, was proper as to the instructions that Mr. Pacala would give anyone in cutting down a tree. He observed that the wedge was cut out of the tree and that the backcut was in proper relationship to the wedge. Mr. Pacala was of the opinion that on some occasions, because of weights and other factors, including wind, the tree may just fall differently than anticipated.

On October 23, 1992, the employer's Operations Supervisor for the Tree Division, Mr. Cole, called a meeting with other members of the City of Milwaukee's Bureau of Forestry to discuss whether standard procedures could be established for tree removals. The meeting dealt with the number of people on a crew, communication between the person doing the cutting and the person pulling the tree, the experience of crews, how the crews were to be assembled, the cut of the tree, and the criteria that needed to be looked at when removing a tree. Since the accident the City has utilized the services of the Forestry Industry Safety Training Alliance to provide training on such things as safe chain saws, the use of proper notch, and advanced cuts.

The issue to be decided is whether the employer is liable for increased death benefits under Wis. Stat. § 102.57, which provides that:

"If injury is caused by the failure of the employer to comply with any statute or any lawful order of the department, compensation and death benefits provided in this chapter shall be increased 15% but the total increase may not exceed $15,000. Failure of an employer reasonably to enforce compliance by employes with that statute or order of the department constitutes failure by the employer to comply with that statute or order."

This case does not involve a failure to comply with an order of the department, but an alleged failure to comply with a statute, specifically, the "safe place statute" contained in Wis. Stat. § 101.11 (1), which provides:

"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 life, health, safety, and welfare of such employes and frequenters . . . ."

Under the safe place statute an employer has a duty to make the place of employment as safe as the nature of the employment will reasonably permit. Krause v. Menzner Lumber & Supply Co., 6 Wis. 2d 615 (1959). The safe-place statute does not make the employer an insurer; it "does not guarantee safety." Hipke v. Industrial Comm., 261 Wis. 226, 233 (1952). The employer does not breach its duty as set by the statute merely because the place could be made safer and the mere fact that an accident has happened does not demonstrate that the place was unsafe. Topp v. Continental Insurance Company, 83 Wis. 2d 780, 787 (1978). Further, an employer is not subject to a penalty under Wis. Stat. § 102.57, where the injury is the result of negligent or inadvertent acts of its employees. Wisconsin Bridge and Iron Company v. Industrial Commission, 273 Wis. 266 (1956). It is the applicant's burden to prove that the employer failed to comply with the safe place statute and that such violation was a substantial factor in causing applicant's injury. Milwaukee Forge v. DILHR, 66 Wis.2d 428, 434 (1975).

The applicant contends that the employer violated the safe-place statute by failing to adequately train workers in tree removal, particularly with respect to communication among crewmembers. The commission disagrees. Of course, there are inherent dangers involved with felling trees. The employer provided training to workers involved in tree removal. That the employer did not emphasize classroom instruction did not make its training method inadequate or unreasonable. While the employer did not emphasize "formal" training, "on-thejob" training did occur. Applicant was instructed in how to make a cut and the more credible evidence is that he performed that portion of his duties in accordance with such training, including on the day of the accident. Applicant's very activities on the date of the accident show an individual aware of his responsibilities and who used his experience in an attempt to perform the job in as safe a manner as possible, for example, by initially deciding to top the tree to reduce its weight. Granted, Mr. Prickril and Mr. Pettigrew were not "self-starters," however, they were both experienced workers. Mr. Prickril's testimony demonstrated that he knew his responsibilities and knew what to expect from others. Similarly, the evidence did not establish that any motion by Mr. Pettigrew, interpreted by Mr. Prickil as a signal, was the result of a failure in training or standardized communication. Further, the lack of a standardized signal served a valuable purpose; it gave workers the flexibility to tailor their signals to their surroundings and use one that was more effective, for example, in a traffic area a nonverbal signal such as a nod could be used. Further, the responsibility for deciding what signal to use rested with the arborist II. There is nothing unreasonable about leaving the decision of what signal to use to an experienced and safety conscious worker and expecting the worker to exercise the authority given to him.

The applicant contends that miscommunication occurred, due to a lack of training, in that Mr. Pettigrew was signaling for the rope to be pulled when he should not have been involved in giving such signals. However, Mr. Prickril interpreted Mr. Pettigrew's motion to mean that the rope should be kept taut. Further, the evidence indicates that it was in fact kept taut, as applicant's saw did not become pinched in the tree during his cut. Further, there is no evidence that Mr. Harvey responded to anything other than signals he received from Mr. Prickril.

Mr. Prickril in turn recognized the need for the rope to be taut and indicated such to Mr. Harvey. The actual pull occurred on Mr. Prickril's signal. Mr. Prickril's statement following the accident demonstrates that he was acutely aware of what signal was to be forthcoming from the applicant and that he acted as he saw the applicant raise his head. Whether due to his experience in working for the employer, his training, or both, Mr. Pettigrew knew what signal he would be receiving-from the applicant.

The commission does not disagree with the applicant that the training given arborists on tree removal, including communication to be utilized could have been better. The employer itself explored the need to balance standardized procedures with the need to allow its workers flexibility to adapt procedures to particular circumstances. However, the employer is not a guarantor of safety. Training can almost always be better -- more extensive, more thorough, more formalized. The training and procedures utilized by the employer to workers involved in tree removal were reasonably designed to keep the employment safe. The failure of a particular worker to follow through with and utilize the skills obtained, training learned, and knowledge acquired while perhaps negligent on the worker's part, does not demonstrate a failure on the part of the employer to keep the place of employment safe. That the employer endeavors to improve and expand on training does not demonstrate that the training and system of communication previously relied on was less than reasonable. Similar to the conditions of the employment, the fact that training can be better does not establish a violation of the safe-place statue. As the court stated in Hipke:

The claimant suggests a number of additions and changes which might have been made in the premises to render them more safe. The argument that that fact indicates that the employer violated the safeplace statute might be made in any case. We .are unable to conceive any structure, safe as it might be considered to be, which could not be made more safe. To hold that the possibility that a safe structure or instrument might be made more safe requires the conclusion that there has been a violation would be to make the owner or employer an insurer. Certainly in the application of a penal statute such as we have here to deal with, we may not go that far. As said by the learned trial judge, "the law of Wisconsin does not guarantee safety. All that is demanded is adherence to the 'rule of reason.' "

Hipke, 261 Wis. at 233.

The commission finds that the employer did not fail to furnish a safe place of employment and did not fail to adopt methods and processes reasonably adequate to render such employment safe, within the meaning of Wis. Stat. § 101.11(1) . Accordingly, applicant is not entitled to increased benefits under Wis. Stat. § 102.57.

ORDER

The findings and order of the administrative law judge are reversed. The application for increased death benefits is dismissed.

Dated and mailed December 20, 1999
johnsma2.wrr : 132 : 1 ND § 7.2

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission did consult with the administrative law judge regarding witness credibility and demeanor. The administrative law judge indicated that Mr. Prickril was angry that his co-worker was killed. The administrative law judge believed that Mr. Pacala was attempting to cover up at the hearing and noted that his testimony was at odds with his initial statement to police. The commission finds that Mr. Prickril's and Mr. Pacala's statements following the accident were more credible than their testimony at the hearings. In both cases, though perhaps for different reasons, the opinions and recollections have changed significantly between the date of the accident and the dates of hearing. The commission disagrees with the administrative law judge's conclusion that the safe place statute was violated. (3)

The respondent argued that even if the training given applicant was found to have been inadequate, such lack of training could not give rise to a violation of the safe place statute. Respondent argued that improper/ inadequate training is not a condition of the premises, but an act of operation, and therefore not a violation of the safe place statute. The Commission would agree that the "acts of operation" rule defeats any allegation of a safe place violation based on the acts of the crew, the acts of the applicant, and activities as they occurred on September 25, 1992. However, the applicant's claim is not based merely on the acts and activities on the date of the accident, but on the employer's practices and procedures as they relate to training individuals to perform such acts.

cc: Theresa Johnson Buhrand

Attorney Janet E. Cain
Peterson Johnson & Murray SC

Marita Houren
Assistant City Attorney

Stephen Sobota
Assistant Attorney General

Margaret O'Connell
Workers Compensation Division

Appealed to Circuit Court.  Affirmed October 12, 2000. Appealed to the Court of Appeals. Affirmed, per curiam, July 17, 2001.

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Footnotes:

(1)( Back ) 14 from 2 to 9.9 inches; 63 from 10 to 19.9 inches; 73 from 20 to 29.9 inches; 16 from 30 to 39.9 inches: and 1 of 40 inches or more.

(2)( Back ) The Forestry Department measured the tree as 25 inches in diameter and the police department measured it as 31 inches in diameter.

(3)( Back ) The commission finds no violation and therefore does not reach the question of whether the violation was a "substantial factor" in applicant's death. The commission notes that it has always understood that "the substantial factor concept of causation" applies under Wis. Stat. § 102.57. Milwaukee Forge, 66 Wis. 2d at 437.

uploaded 2000/12/18