RALPH H HENES, Applicant

MEGA TELECOMMUNICATIONS, Employer

HARTFORD FIRE INSURANCE COMPANY, 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 6, 2005
henesra . wsd : 175 : 2 ND § 7.2  § 8.18  § 8.19

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

The employer asserts in its petition for commission review the administrative law judge erred in determining the applicant was entitled to 15 percent increased compensation due to his work injury pursuant to Wis. Stat. § 102.57. The employer states that the injury sustained by the applicant was caused by his own lack of good judgment. The evidence established that the applicant was required to lift manhole covers to perform his work for the employer. However, the applicant testified that the employer failed to provide a hole hook which is used to grasp and safely lift a manhole cover. The applicant testified the manhole cover which struck him on July 29, 2003 weighed approximately 150 pounds leading to the amputation of his finger. The applicant testified that because the employer failed to provide the hole hook he would lift the manhole covers in his work by using screwdrivers. The applicant testified that on the day of his work injury he was attempting to lift a manhole cover using the screwdrivers and when he grabbed it with his hand, there was moisture under the lid, and it slid and fell on his right hand and amputated his finger. The applicant testified that he had requested the employer to provide the hole hook on several occasions but the employer failed to provide the needed tool.

Under Wis. Stat. § 101.11 every employer shall furnish employment which shall be safe for employees therein, and shall furnish a place of employment which shall be safe for employees 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. The administrative law judge appropriately noted that the employer should have provided a hole hook for the applicant to perform his normal work lifting the manhole covers. The applicant had requested the employer to provide such a tool and the employer had failed to do so. The applicant's failure to have a hole hook to lift manhole covers directly lead to his work injury. The commission agrees with the administrative law judge that the employer's failure to provide the hole hook was a violation of the Wisconsin safe place Wis. Stat. § 101.11 and led to the applicant's injury. Therefore, the employer was appropriately found liable for a penalty under Wis. Stat. § 102.57 and assessed 15 percent increased compensation.

The employer also states in its petition for commission review that it was its intention to clarify this matter at the hearing, but it was misinformed and under the impression that the hearing could be held by phone. However, the employer was sent notice of hearing which included information that the employer was required to appear in person. The hearing notice informed the employer that the hearing would be held unless the department was notified within seven days in writing with a copy to all parties. The notice also informed the employer that failure to appear as scheduled may result in a decision by default as occurred in this case. The employer had an opportunity to contact the department and clarify the need to appear in person or request a postponement. The employer has failed to provide any reasonable explanation for its failure to do so. Under the circumstances, the commission finds that the administrative law judge appropriately awarded the applicant 15 percent increased compensation pursuant to Wis. Stat. § 102.57.

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uploaded 2005/05/16