Wis.LIRC WC Decision: Wolfe, Gary - March 11, 1994 - ND � 7.1 - 15% Increased Compensation, � 7.2 - Generally - Safe Place violation - irrespective of safety of machine, "methods and processes" used here to unjam machine -- having 2 men pull on part to get it out, resulting in them falling when it slipped, and injuring their backs -- were not safe and should have been recognized by employer as such; that injury is not "inevitable" from a practice does not mean employer has not violated safe place statute

STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION

GARY L. WOLFE, Applicant

VINYL PLASTICS INC, Employer

AETNA CASUALTY & SURETY, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 88041554

The applicant submitted a timely petition for commission review, which alleges error in the administrative law judge's findings and order dated December 9, 1992. The employer submitted an answer, stating its belief that the decision of the administrative law judge was supported by substantial and credible evidence and should be affirmed. No response has been submitted on behalf of the insurer, although the department did send the insurer a copy of the letter acknowledging the applicant's petition.

Prior to the hearing, the respondent conceded jurisdictional facts and a compensable work injury on July 11, 1988. As a result of this compensable injury, applicant Keitel was paid temporary disability in the sum of $24,237.58 and permanent partial disability in the sum of $8,470, for a total of $32,707.58. At issue is the liability of the employer and the insurer (collectively, the respondents) under sec. 102.57, Stats., based on an alleged violation of the "safe place statute," sec. 101.11, Stats.

The commission has carefully reviewed the entire record in this case and consulted with the presiding administrative law judge concerning the credibility and demeanor of the witnesses. Based on its review and consultation, the commission hereby sets aside the administrative law judge's findings and order and substitutes the following therefor:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant, Mr. Wolfe, and a co-worker, Larry A. Keitel, injured themselves in an industrial accident during the course of their employment with the employer. At the time of the injury, Messrs. Keitel and Wolfe were trying to pull a "block plate" weighing about 200 pounds from a rack in which several block plates were lowered into a press. The block plates are heavy trays which contain chips of material from which the employer makes special flooring that conducts static electricity away from computers and similar machines. The block plates travel down a conveyor belt and automatically go into the rack, where they are stacked vertically in groups of ten before going into the press. Once in the press, the fabricating material is pressed and heated to form the flooring. Another rack of ten block plates then enters the press, forcing the first rack out where the plates are separated and the flooring removed.

Because the machine was new, the employer was experiencing start-up problems with both product quality and the mechanical operation of the press. As a result, the employer was not yet using the machine on regular basis or to actually manufacture product for sale. Rather, the employer operated the press "on and off" to train its workers in its operation of the machine and to get the press into production. The machine was controlled by computer and was not "cycling" properly at the time of the accident.

One of the problems with the operation of the press was that on some occasions an eleventh block plate would enter the press or rack causing it to jam. The workers who testified at the hearing blamed the jams on co-workers who were temporary summer help for allowing the eleventh plates onto the conveyor at the wrong time. The testimony of the plant manager (who was a foreman at the time of the injury) establishes that the problem was ultimately corrected by a programming change; that is, that the machine was "reprogrammed" to prevent too many plates from going down the conveyor and into the press even if an eleventh plate was placed on the conveyor.

At the time in question here, the employer's workers had to free the jams by removing the eleventh block plate manually. The first step was to stop the machine. It was possible to throw a switch to back up the rack containing the block plates. This "rack reverse switch" did not release pressure or eject the plate, however. In order to remove the plate from the rack, a worker or workers would then have to stand on the conveyor and manually pull on a bar at the edge of the block plate with a long metal hook.

The plant manager testified that the jamming problem did not always occur, but he admitted it had happened several times. Indeed, removing plates in the event of jams was the subject of a staff meeting. At the meeting, the workers complained that it was difficult to remove the plates. The workers suggested either putting a winch on the machine to lift the plate out, or putting a hole in the plates so the hook had something to grab on. The employer rejected both of those modification ideas. Instead, it had the machine reprogrammed to prevent the eleventh rack from passing down the conveyors. The employer also eventually had a "conveyor relief switch" (1 ) installed. However, neither the reprogramming changes nor the conveyor relief switch were installed when the accident occurred.

Messrs. Wolfe and Keitel were injured when they were trying to free manually an eleventh plate that overloaded the press on July 11, 1988. When the overload occurred, a co-worker named Krueger stopped the press before it closed to start compression of the plates. Mr. Wolfe was standing on the conveyor to the press. A foreman told Mr. Keitel to get up on the conveyor and help Mr. Wolfe remove the plate with the hook. Standing on the conveyor, Messrs. Wolfe and Keitel pulled together on the plate with the hook twice, hard. The hook slipped and both men fell over backward onto the conveyor, hurting their backs.

The primary question in this case is whether the employer failed to do any of the following: (1) furnish the applicant with "safe employment" (2 ) or a "safe place of employment", (2) furnish or use safety devices or safeguards, (3) adopt or use processes reasonably adequate to make the employment or place safe, or (3) any other thing reasonably necessary to protect the life, health, safety and welfare of its employes. These duties are required by the safe place statute, sec. 101.11 (1), Stats., and failing to meet them (or to comply with any other statute) makes an employer liable for 15 percent increased compensation (to a limit of $15,000) under sec. 102.57, Stats. See: Eau Claire Electric Co-op v industrial Commission 10 Wis. 2d 209, 217 (1960).

The "safe place statute" requires employers to take action reasonably necessary to make the work or the work site safe, and this duty goes beyond merely placing guards. The statute specifically requires the employer to adopt processes or methods reasonably necessary to ensure the safety of the employes. On this subject, the supreme court noted:

"The safe-place statute requires the employer, and imposes a duty upon it, to anticipate what the premises will be used for and to inspect them and to make sure they are safe. The burden to investigate or inspect premises in order that they be safe for employment may be burdensome at times upon an employer, but it does not excise it from the duty so imposed upon it by the safeplace statute and a failure to comply renders it liable for the violation... [Emphasis added.

Wisconsin Bridge & Iron Co. v Industrial Commission, 8 Wis. 2d 612, 618-19 (1959); Wittka v Hartnell, 40 Wis. 2d 374, 385 (1970). Put another way, an employer must keep his or her place of employment "as safe as the nature of the premises reasonably permits." Strack v. Great Atlantic and Pacific Tea Company 35 Wis. 2d 51, 54 (1967). On the other hand, the duty to provide a safe place or safe employment is not absolute, the employer need only take steps that are "reasonably necessary." Miller v. Paine Lumber Company, 202 Wis. 77, 92 (1930); Leitner v. Milwaukee County, 94 Wis. 2d 180, 193 (1980). Nonetheless, the statute goes beyond simply ensuring a safe "physical situation" for employes (as opposed to frequenters) and includes a duty to warn workers of dangers incident to their employment. Miller, supra.

The reported cases include a number of cases where employers were not held liable under the safe place statutes for slip and fall type accidents. See: Rosenthal v. Farmer's Store Company, 10 Wis. 2d 224 (1960); Merriman v. Cash-Way. Inc.. 35 Wis. 2d 112 (1967); May v. Skelly Oil Company, 83 Wis. 2d 30 (1978). In those cases, the focus of the court was on whether the employer had notice, constructive or actual, of the dangerous condition. This case does not present a notice issue because the employer was aware of the problems with the press and its foreman specifically instructed the applicants to remove the block plate in the manner that led to their injuries. Instead, the issue is whether those instructions failed to comply with the employer's duty to use reasonably safe methods and procedures.

The employer contended that the solutions to the jamming problem proposed by the workers were not practical. However, the fact that the modifications suggested by the workers may not have been not practical does not mean that the press or the employer's method of unjamming it were automatically safe. The commission appreciates the testimony to the effect that the employer was not bypassing mechanical guards, but merely attempting to get the machine to operate as it was designed to operate. The commission also realizes that in prior cases dealing with safe place liability for failure to provide a guard, the courts have held that the guard must be both available and practical. Neal & Danas, Worker's Compensation Handbook, sec. 7.12 (3d ed. 1993).

However, analysis under sec. 101.11 (1), Stats., is not restricted to the physical condition of the press itself. Rather, the commission must also consider the process or method that the employer ordered the applicant to follow in unjamming it. As noted above, the safe place statute requires that an employer adopt safe methods and procedures, to the extent reasonable and necessary. Regardless of whether the press was safe when operated normally, the method the employer required its workers to use to unjam it was not. Having the applicant and another man pull with considerable force on a two hundred pound plate with a metal hook not actually "hooked" into the bar on the edge of the plate, while standing on a conveyor, was a failure of the employer's duty to adopt and use processes and methods reasonably adequate to render the applicant's employment safe. The commission emphasizes that the applicant was actually instructed to unjam the press in the manner that led to his injury; this was not something the workers thought up on their own without notice to the employer.

The commission therefore finds that the employer failed to adopt and use methods and processes reasonably adequate to render the applicant's employment safe within the meaning of sec. 101.11, Stats., and that that failure caused the July 11, 1988 injury. As a result, compensation under Chapter 102, Stats., associated with that injury are increased by 15 percent, not to exceed a total increase of $15,000, under sec. 102.57, Stats. In this case, based on payments of $24,237.58 in temporary disability and $8,470 in permanent partial disability (as set out in the preliminary recitals preceding the findings of fact), the increased compensation amounts to $4,906.14. The applicant agreed to the payment of an attorney fee of 20 percent of the amount awarded, or $981.23. The fee shall be subtracted from the total amount awarded to the applicant, so that he is entitled to payment in the sum of $3,924.91.

The employer is primarily liable and the insurer secondarily liable under sec. 102.62, Stats., for the payment of the increased compensation awarded in this decision. The commission's order shall be left interlocutory to allow for the payment of further increased compensation (up to a total of $15,000), if appropriate, should additional amounts be awarded based on the July 11, 1988 injury.

NOW, THEREFORE, the Labor and Industry Review Commission makes this

INTERLOCUTORY ORDER

The findings and order of the administrative law judge are reversed. Within thirty days from the date of this decision the employer shall pay to the applicant the sum of Three thousand nine hundred twenty-four dollars and ninety-one cents ($3,924.91) and to his attorney, James C. Wood of Milwaukee, the sum of Nine hundred eighty-one dollars and twenty-three cents ($981.23). The employer is primarily liable and the insurer secondarily liable under sec. 102.62, Stats., for the amounts awarded under this interlocutory order.

This order is left interlocutory to allow an award of increased compensation if appropriate, up to a total of $15,000.

Dated and mailed March 11, 1994.
ND � 7.1 � 7.2

Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner

MEMORANDUM OPINION

The administrative law judge found that the employer did not violate the safe place statute. He concluded that the employer did not have notice of an obviously unsafe condition, noting that no prior injuries had occurred and that merely standing on the conveyor was not a hazard. He also noted that the modifications suggested by the workers were not offered for safety reasons, but because the workers objected to the heavy work involved in manually removing the plates. He also stated that the modifications were impractical. He went on to conclude the employer's attempt to resolve the problem by fixing the program was reasonable, and suggested that the conveyor release switch could not be added until a new computer was available three years after the accident. He concluded that although the machine had problems, "that was not an indication that injury would inevitably occur."

However, the commission must respectfully disagree with the administrative law judge's analysis. As explained above, the commission finds a safe place violation in the method the employer used in unjamming the press, not the physical condition of the press itself. Thus, the question of guards or the practicality of improvements to the press itself is not dispositive. Further, the commission must conclude that the employer had notice of the unsafe method it instructed its workers to use to unjam the press. That method did not involve simply standing on the conveyor, but also required two men to pull with considerable force on a heavy plate with a metal hook that was not actually "hooked" into the plate. An actual injury should not have been necessary to establish that the practice was not safe. Finally, the ALJ's observation that injury was not inevitable (or certain to happen), while perhaps accurate, does not mean that the employer did not violate the safe place statute. The safe place statute imposes a duty to take steps that are "reasonably adequate" or "reasonably necessary." While the employer has no duty to ensure absolute safety, it does require an employer to do more than to prevent inevitable injuries.

The commission conferred with the administrative law judge as part of its deliberations in this case, even though the judge indicated in his synopsis of the hearing testimony that witness credibility was not at issue. See: Transamerica Ins. Co. v . ILHR Department, 54 Wis. 2d 272, 283-84 (1972). During the conference, the administrative law judge offered little in the way of his impressions of witness credibility or demeanor and stated that his reasoning was explained in his decision. The commission agrees that this case does not turn on witness credibility since the witnesses were all in general agreement in the relevant aspects of their testimony. However, because the commission reaches a different legal conclusion on essentially the same set of facts as found by the administrative law judge, it must respectfully reverse his decision.

cc:
Attorney James C. Wood

Attorney James A. Mast
Rohde Dales Melzer Le Winkle & Gass

101 : CD8332

[ Search Decisions ] - [ WC Legal Resources ] - [ LIRC Home Page ]

Footnotes:

(1)( Back ) This is something different than the rack release switch which was on the machine at the time of the accident.

(2)( Back ) Since the applicant is an employe the employer has to provide him with both a safe place and safe employment. Miller v Paine Lumber, infra, at 202 Wis. 90. Subcontractors or mere frequenters need only be furnished with a safe place. Korenak v Curative Workshop Adult Rehabil. Ctr.. 71 Wis. 2d 77, 84 (1976); Leitner v. Milwaukee County, 94 Wis. 2d 180, 193 (1980).

uploaded 2001/04/04