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

MICHAEL J MERKES, Applicant

HAMEL RALPH FOREST PRODUCTS, Employer

AMERICAN INTERSTATE INS CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1998-033594

The employer submitted a petition for commission review alleging error in the administrative law judge's Findings and Order issued in this matter on December 11, 2002. The applicant submitted an answer to the petition. At issue is whether the applicant is entitled to 15% increased compensation pursuant to the provisions of Wis. Stat. § 102.57.

The commission has carefully reviewed the entire record in this matter and hereby affirms in part and reverses in part the administrative law judge's Findings and Order. The commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW


On April 13, 1998, the applicant began his employment as a lumber piler for the employer, a lumber mill. Several weeks prior to his injury he had been transferred to the position of slab man, which required him to keep wood slabs straight as they moved along a conveyor/sawing line. The job also required him to keep pieces of wood from obstructing the operation of the machinery. The accident occurred on May 20, 1998, and the only description of what occurred is by hearsay. Nobody but the applicant witnessed the accident, and in November 1998, he suffered a brain aneurysm unrelated to his employment which left him unable to communicate.

The plant manager, Dean Rose, gave a statement on June 4, 1998, in which he indicated that he had talked to the applicant the day after the accident. Rose indicated the applicant told him:

" . . . he reached down to grab a stick out of the grate and when he pulled up on the stick, the stick was longer, longer than two foot and was stuck in the grate, uh and he pulled the stick out of the grate and when he did the top of the stick caught, caught a saw and it pulled his hand back up into the saw."

The "grate" area to which Rose is referring is a rectangular area underneath the conveyor/saw blade and is pictured at Applicant's Exhibit C and Respondents' Exhibit 5. It was normally open and unguarded. After the accident the employer placed a grate over the opening to act as a guard. However, the grate would have to be removed in order to clear out wood pieces that would accumulate there.

Fifteen percent increased compensation is due under Wis. Stat. § 102.57, when an employer fails to comply with a safety rule or statute, and such failure to comply is a substantial factor in causing the injury. Milwaukee Forge v. DIHLR, 66 Wis. 2d 428, 434, 225 N.W.2d 476 (1975). The applicant claims violation of two code of federal regulation sections adopted as part of the Wisconsin Administrative Code. First, 29 C.F.R. 1910.212(a)(3) provides:

"(3) Point of operation guarding. (i) Point of operation is the area on a machine where work is actually performed upon the material being processed.

(ii) The point of operation of machines whose operation exposes an employee to injury, shall be guarded. The guarding device shall be in conformity with any appropriate standards therefor, or in the absence of applicable specific standards, shall be so designed and constructed as to prevent the operator from having any part of his body in the danger zone during the operation cycle."

Second, 29 C.F.R. 1910.265(e)(5)(ii)(a) provides:

"The top and the openings in end and side frames of edgers shall be adequately guarded and gears and chains shall be fully housed. Guards may be hinged or otherwise arranged to permit oiling and the removal of saw."

Violation is also claimed of the safe place statute, 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."

The administrative law judge found a violation of Wis. Stat. § 102.57, and awarded 15% increased compensation assessed not only against the awards for temporary disability and permanent partial disability, but also against the $25,000.00 paid to the applicant in a limited compromise that addressed other claims stemming from the injury. In the petition, the employer asserts that the applicant had a ten-inch flat shovel which was to be used to remove debris from the machine, and that the applicant would have had to have crawled into the rectangular area under the conveyor to have injured himself as he did. The employer says the applicant had no reason to do this. The employer also asserts that the machinery was properly guarded.

The only evidence of record leads to the inference that the accident happened as Rose described it in his statement of June 4, 1998. The applicant was pulling on a wood stick that got caught in the conveyor or the saw and jerked his hand up into the conveyor or saw area. From the second picture at Respondents' Exhibit 5, one can see that the saw blade and the conveyor are in close proximity to the area into which a worker would stick his hand in order to clean out wood debris. The way the machine is constructed, the only safe way to clear out debris would be to make certain the machine was temporarily shut down. In his statement taken on June 4, 1998, Rose indicated:

"Everybody in the mill knows that you don't put your hands in there, everybody in the mill knows that you don't even get around the machines until they're shut down. (Mike Kramer says Uh huh) and there's a shovel there for use, for breaking the piece off, uh if a piece gets hung up in that machine the operator has been running that machine for four years, he's very knowledgeable, he shuts the machine down before he lets anybody get in there and he happened to turn around to pick something, I don't remember what he said happened, but he said he turned around to pick a slab up on the floor and when he turned back around Mike was coming up out of, he bent up coming up out of hole. That's what he told me when I asked him I investigated the accident and that's the response I got from him. The other operator, the other machine operator on the trim saw, he didn't see nothing cause his back is to it."

Of course, this is additional hearsay, and the employer failed to present any competent evidence of regular enforcement of a rule requiring machine shutdown before anyone would reach into the grate area to clean it out. The commission infers that the applicant regularly reached into that area, and on the day in question, he was unlucky enough to grab a piece of wood that was grabbed by the conveyor or the saw. The employer's toleration of this procedure amounted to a violation of the safe place statute and of the federal regulations, and these violations constituted a substantial cause of the injury.

However, the administrative law judge erred by assessing the 15% penalty against the $25,000.00 received for the limited compromise. The commission long ago determined that the 15% penalty is not to be assessed against compromise amounts. Those amounts do not constitute compensation, and assessment of the 15% penalty against compromise amounts would necessitate assessment of the 15% deduction for decreased compensation when there was an employee violation of Wis. Stat. § 102.58 (employee's failure to use safety devices/procedures). James R. McCoy v. Fox Valley Construction Company and Employer's Insurance of Wausau, WC Claim No. 85-036974 (LIRC May 31, 1990).  The statutes do not contemplate applying increased or decreased compensation assessments against compromise amounts independently negotiated between the parties.

The applicant received the sum of $3,874.20 for temporary disability, and the sum of $28,640.00 for permanent partial disability. The total compensation against which the 15% increased compensation is applied amounts to $32,514.20. The increased compensation due therefore amounts to $4,877.13. A 20% attorney's fee and costs in the amount of $154.50 will be subtracted from the increased compensation. Pursuant to Wis. Stat. § 102.62, the employer has primary liability for payment of these amounts, while the insurance carrier has secondary liability.

NOW, THEREFORE this

ORDER

The Findings and Order of the administrative law judge are affirmed in part and reversed in part. Within 30 days from this date, the employer pay shall pay to the applicant the sum of three thousand seven hundred forty-seven dollars and twenty cents ($3,747.20); and to Attorney John Symonds, fees in the amount of nine hundred seventy-five dollars and forty-three cents ($975.43), and costs in the amount of one hundred fifty-four dollars and fifty cents ($154.50). The insurance carrier has secondary liability for payment of any of these amounts ultimately left unpaid by the employer.

Dated and mailed September 25, 2003
merkemi . wpr : 185 : 8   ND  § 7.2  § 7.16 

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner


cc:
Attorney R. John Symonds

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