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

TERRY T PAYNE, Applicant

ARPIN DAIRY INC, Employer

LIBERTY MUTUAL INSURANCE COMPANY, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 92048396

Pursuant to the timely petition for review filed by the employer in the above-captioned matter, the commission has considered the petition and all relief requested. The commission has reviewed the applicable records and evidence and finds that the administrative law judge's findings and order are supported thereby. The commission therefore adopts the findings and order of the administrative law judge as its own.

NOW, THEREFORE, the Labor and Industry Review Commission does

ORDER

That the findings and order of the administrative law judge are hereby affirmed.

Dated and mailed at Madison, WI December 21, 1994
175 : CD000112  ND § 7.41

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner

MEMORANDUM OPINION

The employer contends in its petition for commission review that the administrative law judge erred in determining that the applicant was entitled to $15,000 as a penalty for prohibited employment pursuant to section 102.60(3), Stats. The evidence indicated that the applicant, a minor, was injured on August 3, 1992 while working on a cheese shredding machine. The applicant testified that he had been told to work on the shredding machine by his supervisor and that no one had ever told him not to use the shredder, or not to attempt to clean out the bottom of the machine if it plugged.

The employer contends that the Wisconsin Administrative Code sets forth in chapter IND 70 of the Wisconsin Administrative Code specific prohibited hazardous employment, and that the listing does not include employment on a cheese shredding machine. However, section 103.65 (1), Stats. provides that a minor shall not be employed or permitted to work at any employment or any place of employment dangerous or prejudicial to the life, health or welfare of a minor. Section 103.65 (1), Stats. was clearly enacted to protect minors, and prohibit their employment in activities dangerous or prejudicial to the life, health, and safety of the minor. There is no definition of prohibited employment contained in sec. 102.60(3) stats.. However, there is nothing to indicate that the listing of hazardous activities in section Ind 70.06 was intended to be exclusive. The commission agrees that the prohibition contained in section 103.65, Stats. is relevant to defining prohibited employment under section 102.63, Stats.

In this case the applicant was permitted to work around hazardous machinery involving rotary blades. The employer's own investigative report indicated that the applicant was injured due to a lack of proper instruction on safety procedures and requirements. The applicant credibly testified that he had not been instructed that he should not clear out the bottom of the shredder machine if it jammed. He also testified that he was not aware that there were blades on the bottom as well as the top.

The administrative law judge credited the applicant's testimony. Based upon an independent review of the evidence in the record the commission has found nothing to warrant overturning the administrative law judge's credibility determination. The applicant's foreman testified that he instructed the applicant not to touch the shredder machine if there was a stoppage or a breakdown, but to notify him or his supervisor. However, the foreman admitted that he could not recall specifically if he told the applicant about the rule if there was a stoppage. Rather, he simply stated that he would usually tell new employes not to touch the machine. Therefore it was not established that the applicant had ever been instructed in the proper procedures if there was a stoppage in the shredder machine.

It was undisputed that the shredder machine included moving blades or knives for shredding the cheese. Based on the evidence in the record, including the applicant's testimony, it was established that the applicant was permitted to work in dangerous employment in violation of section 103.65 (1), Stats., and that such employment constituted prohibited employment pursuant to section 102.60 (3), Stats. and that the applicant was injured while performing such work. Therefore the applicant was entitled to treble damages.

cc: ATTORNEY THOMAS W BERTZ
ANDERSON SHANNON O BRIEN RICE & BERTZ

ATTORNEY JAMES KURTH
JAMES KURTH SC

ATTORNEY HAROLD J LA CHAPELLE
LA CHAPELLE RUSHEVICS & LLOYD

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