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


JOHN B PINTZ, Applicant

MARIGOLD FOODS (LA CROSSE), Employer

LUMBERMENS MUTUAL CASUALTY CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 90068263


An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development (Department of Industry, Labor and Human Relations prior to July 1, 1996) 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, except that it makes the following modification:

1. Delete the first and second paragraphs that begin on page 7 of the decision.

ORDER

The findings and order of the administrative law judge, as modified, are affirmed.

Dated and mailed September 30, 1996
pintzjo.wmd : 101 : 0  ND § 7.15

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

David B. Falstad, Commissioner

MEMORANDUM OPINION

The ALJ determined the employer was not liable for increased compensation under sec. 102.57, Stats., after the applicant was injured while building walls for the employer's loading dock. In his petition for commission review, the applicant contends that the ALJ made that finding because the applicant was in charge of the construction project. In fact, the ALJ did note that the applicant was in charge of the construction project and could have taken measures to protect himself. However, that was not the basis of his dismissal of the applicant's claim for increased compensation. Rather, the ALJ dismissed the claim because the applicant did not show that his injury was caused by the employer's failure to comply with a statute or order of the department as required under sec. 102.57, Stats.

The applicant's application for hearing alleges that the construction area where the applicant was working at the time of his injury was not properly guarded. At the hearing, the applicant asserted the lack of guarding violated an OSHA regulation that requires guarding of open-sided floors, platforms or runways which are four or more feet off the ground. 29 CFR, sec. 1910.23. In this case, the uncompleted, open-sided loading dock was not so guarded, even though it was four and a half feet from the loading dock floor to the ground.

The employer points out, though, that a different set of OSHA regulations, those found in 29 CFR, sec 1926, applies to "every employment and place of employment of every employe engaged in construction work." 29 CFR, sec. 1910.12 (a). "Construction work" is defined as "work for construction alteration, and/or repair, including painting and decorating." 29 CFR, sec. 1910.12 (b). Under 29 CFR, sec. 1926.501 (b)(1), "fall protection" is required only when an employer is on a walking or working surface 6 feet or more off the ground.

The record does establish that the employer was using the uncompleted dock for its shipping operations at the time of the applicant's injury. The record also establishes that the applicant was employed by the employer as a maintenance worker, not by a contractor as a construction worker. However, as the cases cited in Exhibit C indicate, work may be "construction work" even if the employer is not a construction company. In addition, construction work is defined not simply as new construction, but includes the repair of existing facilities. Finally, while "maintenance activities" are excluded from the definition of "construction work," those activities are defined as a structure in proper condition (or its existing state) in a routine fashion or scheduled fashion. On this basis, the ALJ properly determined that 29 CFR, sec. 1926.501 (b)(1) pre-empted 29 CFR, sec. 1910.23 in this case, and that the former regulation was not violated by the employer.

The next question is whether the employer failed to comply with its more general duty to furnish safe employment and a safe place of employment under sec. 101.11, Stats. Because the applicant's attorney told the respondent's attorney before the hearing that he intended to rely solely on the OSHA regulations, the ALJ declined to consider the more general "safe place" claim. The ALJ cited Neal & Danas, Worker's Compensation Handbook, sec. 7.14 (3d ed. 1990) for the proposition that, lacking pre-hearing notice of a general safe place claim under sec. 101.11, Stats., once the OSHA claim fails the hearing should either be continued or the claim dismissed. The commission agrees with the ALJ's analysis of this issue as well, and affirms his dismissal of the safety violation claim with prejudice.

cc: ATTORNEY CAROL S DITTMAR
GARVEY ANDERSON JOHNSON GABLER & GERACI SC

ATTORNEY W A KIRKPATRICK
HALE SKEMP HANSON & SKEMP


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