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

KELLEY TATROE, Applicant

NORTH SHORE ENVIRON CONS, Employer

AMERICAN STATES INS CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1997049648


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 July 29, 2004
tatroe . wsd : 101 : 9    ND § 7.1  § 7.10

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION


This case arises on the applicant's claim for increased compensation under Wis. Stat. § 102.57 (1)  which allows a 15% or $15,000 penalty when the injury was caused by an employer's failure to follow a safety rule.

The applicant was born in 1970, and has an associate degree as a hazardous materials technician. He is certified as a "remover cleaner" by the State of Wisconsin. He was injured in a job on July 2, 1997 where his employer was hired to remove an underground storage tank in a gas station. When injured, the applicant was standing about 12 feet below grade, cutting a hole in the side of the tank, when there was a cave-in. He hurt his back -- requiring ultimately a fusion procedure -- in the process of being dug out.

a. Safety violation?

The applicable federal safety regulations require workers in excavations be protected from cave-ins by an "adequate protective system," including either (a) sloping or benching in the excavation or (b) a support system (shielding, shoring and the like). 29 CFR 1926.652 at exhibit A. The regulations provide for two exceptions when: (a) the excavation is less than five feet deep and a "competent person" has examined the ground, or (b) the excavation is made in entirely stable rock.

The employer argues there was no safety violation because a protective system was not required as the applicant was only supposed to be three feet deep in the excavation. (2)   The commission does not agree. Some kind of protective system was required because the applicant in this case was in fact working at the bottom of a 10 to 12-foot deep excavation. Indeed, it is reasonable to conclude a protective system would have been necessary as a matter of course when underground storage tanks are excavated from gas station sites -- even under the procedure described by Mr. Sheffer -- as the worker would still be working in a ten to twelve foot deep excavation, albeit only three feet below grade. Beyond that, like the ALJ, the commission credits the applicant's testimony that his coworker, Mr. Janowski, contacted the employer to request a protective system and his request was denied.

b. The law regarding superseding causes.

The employer, however, argues even if there was a safety violation, the applicant's negligence was a superseding cause of his injury, as he was a "competent person" who by his own testimony determined the excavation was unsafe, but still went down into it to work.

The question of superseding negligence is important because it provides a possible defense for the employer to the penalty. That question was also addressed by the supreme court in Milwaukee Forge v. ILHR Department, 66 Wis. 2d 428 (1975). In that case, the court noted prior cases in which a worker's failure to follow safety procedures could have been a contributing cause to the injury, but also the employer's concurrent failure to maintain a safe place was a "substantial factor" in bringing about the injury, so that the employer remained liable for increased compensation. In particular, the supreme court stated:

" 'The statutes nowhere provide that the employer is to be exempted from the increased-compensation penalty provided by sec. 102.57, Stats., if the injury could have been avoided by compliance by the employee with all instructions and orders.'"

Milwaukee Forge, at 66 Wis. 2d 436 (quoting Eau Claire Cooperative v. Industrial Commission, 10 Wis. 2d 209, 218 (1960).)

The court went on to distinguish between those negligent acts of the injured worker which went beyond being a mere "intervening force" in the injury to constituting a "superseding cause." Quoting the Restatement of Torts, the court concluded that an employer would be relieved from the increased penalty if the worker's own negligent act was a superseding cause.

When is a worker's own negligence an intervening force that amounts to a superseding cause? Again referring to the Restatement, the court stated that the worker's intervening negligence would not be a "superseding cause" if:

1. The employer should have realized at the time of its negligent conduct that a worker might do the intervening negligent act; or
2. A reasonable person knowing the situation existed when the worker did his intervening act would not regard it as highly extraordinary that the worker would have done the intervening act; or
3. The worker's intervening act was a normal consequence of a situation created by the employer's conduct and the manner in which it was done is not extraordinarily negligent.

Milwaukee Forge, at 66 Wis. 2d 436-37. These three conditions are disjunctive; only one of them need apply to take the applicant's conduct out of the realm of superseding cause.

c. Was the applicant's conduct a superseding cause?

In the commission's view, the dispute about whether the applicant was a "competent person" is not dispositive because the "competent person" language in the federal regulations applies only to excavations less than five feet. The excavation around the sides of the tank here were 10 to 12 feet deep. Further, a "competent person" by definition must not only be able to identify hazards, but also have the authority to take prompt corrective action to eliminate them. 29 CFR 1926.650(b). However the commission reads the testimony of Mr. Sheffer to indicate that the employer just did not intend to provide a protective system for this type of job -- as following Mr. Sheffer's procedure a worker need not go into the deeply excavated areas around the sides of the tank -- so the applicant had no authority to eliminate the hazard. And, again, the applicant credibly testified Mr. Janowski's request for some type of protective system was denied.

Second, the applicant testified credibly that he was following the course set out by his more experienced coworker and fellow foreman, Mr. Janowski, when injured. Like the ALJ, the commission concludes that Mr. Janowski, not the applicant, was the "competent person" on the job site. Under the facts of the case, it was not highly extraordinary and extraordinarily negligent for the applicant to defer to Mr. Janowski. The applicant's testimony to that he was following Janowski's instruction went unrebutted, and the ALJ credited it.

While obviously it would have strengthened the applicant's case still further to have brought Mr. Janowski to the hearing, that does not mean the applicant's testimony is legally insufficient. Mr. Janowski was a foreman, and the employer's witness agrees he was a "competent person." Transcript, page 104. Another remover-cleaner, Strande, testified that the excavator operator, Janowski, would have been the "competent person" with respect to tank excavations, and would decide whether a job was unsafe. Transcript, page 54, 58.

d. Conclusion.

In short, there was a ten to twelve foot excavation dug, and no protective system was provided to the applicant who was working in the excavation. The fact the employer may have expected the applicant be standing on the tank, and so only be three feet below grade in the 12-foot excavation, does not change the fact a protective system was necessary under the regulations.

The applicant went into the excavation to cut from the side of the tank while standing in the bottom of the excavation at the behest of another foreman whom the applicant testified had more experience and whom Mr. Strande indicated would be in charge. To the extent this was an "intervening action," it was not highly extraordinary or extraordinarily negligent -- and so would not be a superseding cause.


cc:
Attorney James A. Pitts
Attorney Amy O. Bruchs



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Footnotes:

(1)( Back ) 102.57 Violations of safety provisions, penalty. If injury is caused by the failure of the employer to comply with any statute, rule, or order of the department, compensation and death benefits provided in this chapter shall be increased 15% but the total increase may not exceed $15,000. Failure of an employer reasonably to enforce compliance by employees with any statute, rule, or order of the department constitutes failure by the employer to comply with that statute, rule, or order.

(2)( Back ) The employer's witness, Sheffer, testified that to remove the pea gravel from the empty tank, a worker should stand on top of the tank and cut a large hole in the tank top, so that the gravel can then be dug out of the tank with excavation equipment. When as much gravel is removed as possible, the tank is then lifted out of the excavation by using chains and the tank cleaning is finished aboveground. Removing the gravel from the top means the worker never has to go all way to the bottom of a 12-foot excavation, but could stand only three feet below grade on the top of the tanks. Sheffer testified, though, that he thought the applicant went into the excavation and cut the tank from the side because it would be physically easier--the applicant would be operating the cutting machine at arms length rather than having to bend over. The commission considered the question of when the sides of the tank would be excavated under Mr. Sheffer's procedure. Theoretically, there would be no need to actually dig the 12-foot trench or excavation around the tank until the top had been cut off and the pea gravel removed. This would reduce the possibility of a cave-in during the process of cutting off the top. It also would eliminate the chance a worker might fall off the tank into the excavation. But it seems that even under Mr. Sheffer's procedure, the practice was to excavate the sides of the tank before the top of the tank is cut out. For example, Sheffer testified that after the gravel was removed, the next step was to pull the tank out with a chain. He did not mention digging out the sides. Transcript, page 93. Further, when Mr. Sheffer found out the applicant was down in the bottom of the excavation working from the side, he asked "why he would be down there" not why the sides had been excavated out-of-order. Transcript, page 96. Further, on cross-examination, when explaining why shoring was not used, Mr. Sheffer said there was no reason for the applicant to be in the excavation, or more than five feet below grade, not that there was no reason for the sides to have been excavated at that point. Transcript, page 99.

 


uploaded 2004/08/09