Wis.LIRC WC Decision: Morgan, Helen - December 20, 2001 - ND � 7.5 - Violation, Prima Facie case, safety violation - subsequent remedial measures; ND � 7.10 - Employe Misconduct - employer did not maintain unsafe workplace by virtue of not having stop signs at location where forklifts crossed busy pedestrian walkway -- employer's decision to erect such signs after the accident here, does not establish that the injury arose out of unsafe workplace -- applicant conceded that she was not paying attention to traffic at the time she was hit while walking across path of forklifts

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

HELEN MORGAN, Applicant

KOHLER CORPORATION, Employer

KOHLER CORPORATION, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1998-005559

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 December 20, 2001
morgahe . wsd : 175 : 8 ND � 7.5 � 7.10

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The applicant asserts in her petition for commission review that the administrative law judge erred in dismissing the applicant's claim for 15 percent increased compensation pursuant to Wis. Stat. § 102.57, for the employer's failure to provide a safe workplace. The applicant contends in her petition for commission review that her injury was caused by the fact that the employer failed to have stop signs requiring forklift drivers to bring their vehicles to a complete stop before crossing the crosswalk used by hundreds of employees everyday. The applicant states that the company recognized that stop signs provide a safer environment for pedestrian traffic since they were erected on both sides of the crosswalk following the applicant's accident. However, the fact that the employer erected stop signs subsequent to the applicant's injury does not establish that the applicant's injury arose out of an unsafe workplace.

The evidence indicates that the employer had several safety precautions available in the area where the applicant's injury occurred. The applicant testified that she was injured proceeding from the employer's parking lot after using a passcard to get through a turnstile, and through another area on the way to cross a service road which was used by the employer's forklifts and other vehicles. The applicant admitted that there was a chain link fence around the parking lot with turnstiles, and there was a guard at the second gate. The applicant testified that she knew that there was vehicle traffic on the service drive and that there was designated crosswalk areas. There was no evidence that the employer was cited for any safety violation by a federal or state agency for its maintenance of the area on the way from the parking lot to its plant facilities.

The administrative law judge appropriately noted that factories can be dangerous areas if precautions are not taken, but in this case there were numerous safety devices to protect the applicant. The applicant admitted that she was not looking at the time she was struck by the forklift but was putting her passcard back into her purse, and had proceeded onto the service walkway while doing this, and did not look to see if anyone was coming. The commission finds that the applicant's injury was not due to any unsafe condition maintained by the employer, but rather due to the applicant's inattentiveness before proceeding across the service drive. It was not established that the employer was guilty of maintaining an unsafe workplace, and therefore the applicant was not entitled to 15 percent increase compensation pursuant to Wis. Stat. § 102.57.

As to the applicant's claim for medical expenses for Advil and a Vitamin E lotion, although the applicant testified that these are helpful given her skin condition and ongoing pain as a result of her work injury, there is no evidence that such treatments have been ordered or prescribed by any physician, but are taken at the applicant's own initiative. Therefore, there is no evidence in the record to form a basis to reimburse the applicant for these expenses.

cc:
Attorney Robert T. Ward
Attorney Paul H. Ten Pas

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