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


RICARDO SALINAS, Applicant

PINE VALLEY MEATS INC, Employer

CONNECTICUT INDEMNITY CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 93004181


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.

ORDER

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

Dated and mailed May 8, 1997
salinri.wsd : 101 : 8   ND § 7.12  § 7.15

Pamela I. Anderson, Chairman

David B. Falstad, Commissioner

MEMORANDUM OPINION

On the date of injury, the applicant was working as a cut down man. His job involved cutting beef carcasses that were suspended about a foot off the ground on rails. At the time of the injury, the applicant had just finished cutting down a carcass and was pulling another into place when the carcass swung into his right arm, forcing a knife he held in his right hand into his right eye. He sustained a total loss of vision in his right eye, for which he was paid disability compensation. The issue is whether his compensation should be increased by 15 percent because of a safety violation by the employer, pursuant to sec. 102.57, Stats.

Section 102.57, Stats., provides:

"102.57 Violations of safety provisions, penalty. If injury is caused by the failure of the employer to comply with any statute or any lawful 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 employes with that statute or order of the department constitutes failure by the employer to comply with that statute or order."

The applicant contends his injury was caused by the employer's failure to comply with 29 CFR 1910.133 (a)(1) which provides:

"1910.133 (a)(1) Protective eye and face equipment shall be required where there is a reasonable probability of injury that can be prevented by such equipment. In such cases, employers shall make conveniently available a type of protector suitable for the work to be performed, and employee shall use such protectors. No unprotected person shall knowingly be subjected to a hazardous environmental condition. Suitable eye protectors shall be provided where machines or operations present the hazard of flying objects, glare, liquids, injurious radiation, or combination of these hazards."

The primary question before the commission, then, is whether the employer should have provided safety glasses or other eye protection. The employer's workers who cut down the sides of beef work side-by-side, very near one another, with extremely sharp knives, on pieces of meat suspended from the ceiling. The applicant asserts that, under these circumstances, an eye injury that can be prevented by protective equipment is probable.

However, the employer's witnesses testified that the employer tried to use protective eye wear, but the employer's experience was that the eye wear would fog up and decrease the vision of the cut down workers. The employer's financial officer who oversaw the employer's safety department, Mr. Rauscher, testified that the employer tried anti-fog lenses without success. Ultimately, the employer concluded requiring protective eye wear was more dangerous than not requiring it. Mr. Rauscher did admit that eye wear was required for other jobs involving flying objects, such as sawing through bone and meat. However, he also testified that he had worked for the employer since 1973, and no accident similar to the applicant's had ever occurred.

On this record, the commission, like the ALJ, concludes that the employer did not violate 29 CFR 1910.133 (a)(1). Credible evidence in the record establishes that the employer reached an informed conclusion that rather than preventing injury, requiring protective eye wear would cause injury. The danger of cut-down workers in close proximity with restricted vision is obvious. Under the facts of this case, for the commission to find a reasonable probability that protective eye wear would prevent injury would border on speculation in the face of the employer's firsthand experience. Finally, as the employer and the ALJ both point out, if eye wear was necessary, OSHA presumably would have required it by rule or have cited the employer for not providing it.

At the hearing, though not in his brief to the commission, the applicant also asserted that the employer failed to enforce its own safety rule requiring that knives be sheathed when not in actual use. Had the rule been enforced, the applicant argued, he would have sheathed his knife and not been blinded when struck by the side of meat. On the other hand, the employer's witnesses uniformly testified the sheathing rule was enforced.

This question, whether the sheathing rule was enforced, however, need not be addressed in this case. As the ALJ pointed out, whether the employer failed to enforce its own rules raises a more general "safe place" claim under sec. 102.57, Stats., rather than a claim that a specific state or federal safety regulation was violated. Since the applicant did not put the employer on notice that he would be pursuing a safe place claim, the ALJ declined to consider it. The ALJ's resolution of the issue is consistent with the past practice of the commission and the department. Neal & Danas, Workers Compensation Handbook, sec. 71.5 (3d ed., 1990); John Pintz v. Marigold Food (LaCrosse), WC claim no. 90068263 (LIRC, September 30, 1996), slip opinion at page 3.

cc: ATTORNEY PETER T WALTZ
FITZPATRICK SMYTH DUNN & FITZPATRICK

ATTORNEY JAMES A HELLMAN
HELLMAN LAW OFFICES SC


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