STEVE J RUDITYS, Applicant

DUWE METAL PRODUCTS INC, Employer

TRANSPORTATION INSURANCE CO, Insurer

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.

The findings and order of the administrative law judge are affirmed.

Dated and mailed May 7, 2001
ruditst . wsd : 175 : 8  ND § 7.18

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

The applicant asserts in his petition for commission review that the administrative law judge erred in determining that the applicant was not entitled to additional compensation since the employer was not liable for a safety violation under Wis. Stat. § 102.57. Under Wis. Stat. § 102.57, if injury is caused by the failure of the employer to comply with any statute or any lawful order of the department benefits shall be increased 15 percent. The evidence indicates that the applicant seriously injured his left foot, in an unfortunate incident in which a steel beam which was being lifted while being held by a single clamp, came loose and fell causing the injury. The evidence did not indicate that the employer had been cited for any safety violation or rule for the applicant's injury. Mr. Steiner, the employer's vice-president of manufacturing, testified that he inspected the clamps daily and that there was no cracks or defects in the clamps and no one had complained about the clamp used in the incident which resulted in the applicant's injury.

The applicant contends that a co-worker, Carlos, was not trained in the proper procedures for performing the lifts with the crane. However, it was not established that Carlos did not have the proper training. Mr. Lechman, the applicant's foreman, testified that the applicant was in charge of the procedure on the date of his injury and Carlos was instructed to assist him. The evidence indicates that the applicant was aware of the proper lifting techniques and he testified that he was aware of the safety procedures in use in the industry. The administrative law judge appropriately noted that if the applicant felt that the lifting procedures on September 25, 1996, were unsafe he could have refused to go near the beam or modify the lifting procedure.

Mr. Steiner testified that he inspected the clamps after the incident and they looked okay and were in working order. Mr. Steiner testified that Carlos and the applicant should have used chains or two clamps to lift the beam, but a defect in equipment was not the cause of the accident. Also, it was not established that the manner in which the beams were stacked and the lack of wood spacers was an unsafe working condition or a safety violation. The administrative law judge appropriately noted that the applicant felt that the manner in which the beams were stacked was unsafe, it would have been an easy manner to lift one end of the beam with the hoist, place a wood spacer under the beam, and then use chains rather than a single clamp. Also, it was not established that the employer had been cited by OSHA or any other safety regulatory agency for having unsafe equipment or operating in an unsafe manner. The evidence also indicates that on the applicant's injury date there were additional chains and clamps available if the applicant had chosen to use them. Though clearly, the applicant suffered an unfortunate and painful injury as a result of the incident on September 25, 1996, the evidence does not establish that the employer was guilty of a safety violation or for operating in a unsafe manner leading to the injury. Therefore, it was not established that the applicant was entitled to an additional 15 percent award pursuant to Wis. Stat. § 102.57.

cc: 
Attorney Alan E. Seneczko
Attorney Michael W. Fleming, SC

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uploaded 2001/07/16