WILFRED KLEINHANS, Applicant

KOHLER COMPANY,
TERRI PODRUCH WC, Employer

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 and supplements them as follows:

MODIFIED FINDINGS OF FACT AND CONCLUSIONS OF LAW

Insert the following after the third full paragraph on page two of the Administrative Law Judge's decision:

"Pursuant to section 102.17 (1)(e) the Worker's Compensation Division (W. C.) with or without notice to either party, may cause an inspection of the premises where the injury occurred to be made and a report issued. This report, pursuant to such section, should be reduced to writing and either party should have an opportunity to rebut its findings. Pursuant to this section and section 102.17 (1)(b) W.C. employed a safety specialist whose investigation report was forwarded to W.C. Such report indicates an investigation took place on January 3, 1990 and that in addition to the injured worker, the employer's attorney, its Manager of Safety and Hygiene, its foreman and its Manufacturing Engineer were all interviewed and had input into the investigation. On March 14, 1990 W.C. sent the employer a letter, including a copy of the aforesaid report, informing the employer of the investigator's conclusion and soliciting the employer's position so that a formal hearing could be scheduled if liability was denied. On March 30, 1990 the employer responded denying liability. On May 25, 1990 W.C. sent employer another letter indicating that they had found increased compensation to be due. On September 5, 1990 a hearing notice was sent to the employer setting a hearing on the question of increased compensation. On November 20, 1990 a hearing was conducted before ALJ Thomas R. Jones. There is no indication that ALJ Jones had any involvement whatsoever with this claim prior to the date of hearing of November 20, 1990. At such hearing exhibits were introduced, including the aforereferenced January 3, 1990 investigation report, the employe gave testimony and was cross-examined by the employer, and the employer presented its Manager of Safety and Hygiene as a witness. No objection was made to the introduction of any evidence by the employer, a request for continuance was not made by the employer, there is no indication that ALJ Jones was the target of any personal abuse from the employer, and there is no indication that the employer objected in any way to the manner or substance of the hearing conducted. On February 13, 1991, the ALJ's decision was entered directing payment of increased compensation. However a petition for Commission review was filed on February 20, 1991. To date there is no record that the employer has made any payment whatsoever to the injured worker as the result of the aforereferenced procedure."

Insert the following after the completion of the partial paragraph which commences on the top of page three of the Administrative Law Judge's decision:

"In its petition to the Commission the employer alleged for the first time that its due process rights had been violated because the W.C. determined, before a face-to-face hearing, that employer was liable for increased compensation and that the ALJ, who eventually conducted the face-to-face hearing, was not impartial because he was an employe of the W.C. Division that prosecuted this claim.

"Based upon the above facts the Commission fails to find any violation of the employer's due process rights. The employer has not parted with any property and there is no record of any payment having been made to the injured worker by the employer herein as a result of the procedure challenged. W.C. undertook its inspection of the premises, through a safety specialist as provided by statute, the employer was consulted and had input into the investigation, the employer was furnished a written copy of the investigation, the employer was given an opportunity to respond to the investigation report prior to any decision being made, the employer was given an opportunity for full, fair, hearing after reasonable notice of the charges, had an opportunity to meet charges by competent evidence, and had the right to be heard by counsel. All of these opportunities were taken advantage of by employer. The law is clear that there is no per se disqualification of an adjudicator because of the combining of investigatory and adjudicatory functions. In this instance, in particular, there is no indication that the ALJ was involved in any way in the investigatory process. There is no indication that he was psychologically wedded to any predetermined state of mind prior to the hearing. There is a presumption of honesty and integrity on the part of administrative adjudicators and one who objects to the merger of investigatory and adjudicatory functions, within the same division, must show special facts and circumstances to demonstrate that the risk of unfairness or bias is intolerably high. Withrow v. Larkin, 421 U.S. 35 (1955), State ex rel. De Luca v. Common Council, 72 Wis. 627, 242 N.W. 2d 689 (1976), Hortonville Joint School Dist. v. Hortonville Ed. Assoc., 426 U.S. 482 (1976), and Guthrie v. WERC, 111 Wis. 2d 447, 320 N.W. 2d 213, 331, (Ct. App. 1983). This burden has not been met by the employer in this case.

"In addition is must be kept in mind that the ultimate fact-finder is the Commission, not the ALJ. Burton v. ILHR Dept. 43 Wis. 2d 218, 222, 168 N.W. 2d 196, 170 N.W. 2d 695 (1969). The Commission was not involved in any way with the investigatory process, and exercises its duties under law independently of the head of DILHR. Sections 15.225 and 15.03, Stats.

"For all of the above reasons for the Commission cannot find that the employer's due process was violated in the handling of the above-referenced claim.

"In its petition to the Commission the employer also alleges for the first time that the Federal Occupational Health and Safety Act (OSHA-29 USC section 651 et. seq.) preempts section 102.57.

The doctrine of federal presumption is based on the supremacy clause of the U.S. Constitution, Article VI, clause 2. In Hillsborough County v. Automated Med. Labs., 471 U.S. 701, 713 (1985) the U.S. Supreme Court explained:

"Under the Supremacy Clause, federal law may supersede state law in several different ways. First when acting within constitutional limits, Congress is empowered to pre-empt state law by so stating in express terms. In the absence of express pre-emptive language, Congress' intent to pre-empt all state law in a particular area may be inferred. . . ."

"29 USC section 653 (b)(4), which along with the other sections of OSHA became effective in 1971, states:

"Nothing in this Act shall be construed to supersede or in any manner affect any workmen's compensation law or to enlarge or diminish or affect in any other manner the common law or statutory rights, duties, or liabilities of employers and employees under any law with respect to injuries, diseases, or death of employees arising out of, or in the course of, employment."

"Far from pre-empting worker's compensation law in express terms, the above provisions exempt worker's compensation law in general, and in a particular those laws in effect as of the date of OSHA passage, from pre-emption in express terms. At the time OSHA because effective, section 102.57, Stats., and section 101.11, Stats., the "safe-place statute" which is incorporated by reference into sec. 102.57, had been in existence for long periods of time.

"Nor can an intent to pre-empt sec. 102.57 be inferred. The employer alleges that the purposes and means of enforcement of OSHA and sec. 102.57 are "identical." In fact the purpose of, the remedies under, and the enforcement of, sections 102.57, Stats., and OSHA, are substantially different. The violation of an employer's general duty to furnish employment, and a place of employment, which are free from hazards or violations of specific safety and health standards is all that is necessary to invoke OSHA jurisdiction. Contrary to that, regardless of the safety and health aspects of the workplace, an injury to a worker must have occurred in the course of and as a result of his employment to invoke section 102.57, Stats. Under OSHA civil and criminal penalties can be assessed, the amount depending upon consideration of many circumstances, and, if necessary, abatement of violations can be enforced through civil injunctions. The employer pays penalties to the government and no civil liability is created against the employer on behalf of or to provide damages to the employe. OSHA does not create a private cause of action for violation of the Act or the regulations thereunder. 35 ALR Fed 461. Unless someone is killed the penalties under OSHA do not require the occurrence of an injury. Under section 102.57, a section of the Worker's Compensation Act (WCA), section 102.01 et. seq., the amount of additional compensation due is directly related to, and fixed at 15 percent of, the amount of primary compensation payable as a result of the compensable injury. The payment is made directly to, and for, the injured worker. If compensation payments have not been made to an injured worker, the employer has no liability under sec. 102.57 regardless of whether he has failed to comply with applicable safety laws. If no injury occurs section 102.57, being a part of the WCA, is completely inapplicable to an employer regardless of its safety status. While section 102.57 does have as a secondary effect the inducement of safety and a healthy workplace its purpose is not punitive but rather is compensatory. R. J. Wilson Co. v. Industrial Comm., 219 Wis. 463, 263 N.W. 204, 207 (1935) and Badger Dye, supra. 266 N.W. 2d at 788.

"It is clear from 29 USC section 653 (b)(4) that OSHA was not intended to pre-empt rights or liabilities concerning injuries in the work place existing at the time of OSHA's passage.

Section 102.57 existed long before passage of OSHA. The safe place statute, as a right of private action and as a measure of liability under section 102.57, was in existence long before OSHA was in effect. It is true that there is no Rule Ind 1910.212 (a)(1) applicable to employer. While the Commission therefore places no reliance on a violation of such rule as a basis for finding liability under sec. 102.57, but rather finds failure to comply with the safe-place statute, it is noted that 29 CFR sec. 1910.212 (a)(1), issued pursuant to, and in derogation of, the OSHA statute, does exist and is identical to what once was Rule Ind 1910.212 (a)(1). The pre-emption provisions of OSHA are not necessarily violated by allowing such statutorily promulgated regulation to serve as a standard for measuring liability under section 102.57. See e.g. Pratico v. Portland Terminal Co., 783 F. 2d 255, 266 (1st Cir. 1985) (OSHA pre-emption not violated by allowing regulations to serve as standards of care under the doctrine of negligence per se under FELA).

"Based upon the above the Commission concludes that the Federal OSHA does not pre-empt section 102.57."

NOW, THEREFORE, the Labor and Industry Review Commission does

That the findings and order of the Administrative Law Judge are hereby modified as indicated above and, as modified, are hereby affirmed..

Dated and mailed May 27, 1992
ND  § 7.3  § 8.5  § 8.17

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

James R. Meier, Commissioner

cc:
Attorney Paul H. Ten Pas
Kohler Company

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