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


DANIEL SCHRAUTH (DECEASED)
PAT SCHRAUTH, Applicant

EDWARD E GILLEN CO, Employer

HARTFORD ACCIDENT & INDEMNITY CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 93049959


An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Industry, Labor and Human Relations 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 April 30, 1996
schrada.wsd : 101 : 0  ND 7.1 7.17  8.22

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

David B. Falstad, Commissioner

MEMORANDUM OPINION

This case involves essentially two issues: whether the applicant's death benefit should be increased under sec. 102.57, Stats., and whether it should be decreased under sec. 102.58, Stats. These sections state:

"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.

"102.58 Decreased compensation. If injury is caused by the failure of the employe to use safety devices which are provided in accordance with any statute or lawful order of the department and are adequately maintained, and the use of which is reasonably enforced by the employer, or if injury results from the employe's failure to obey any reasonable rule adopted and reasonably enforced by the employer for the safety of the employe and of which the employe has notice, or if injury results from the intoxication of the employe by alcohol beverages as defined in s. 125.02 (1) or use of a controlled substance as defined in s. 161.01 (4), the compensation and death benefit provided in this chapter shall be reduced 15% but the total reduction may not exceed $15,000."

In its brief in support of its petition for review, the employer's attorney asserts that the ALJ erred by refusing to decrease compensation under sec. 102.58, Stats., and by ordering increased compensation under sec. 102.57, Stats.

The ALJ refused to hear the employer's claim under sec. 102.58, Stats., on procedural grounds. He noted the employer only raised this issue on July 21, 1995, ten days before the hearing, and two months after the notice of hearing went out. Section Ind 80.08, Wis. Adm. Code, requires amendments to the pleadings be made before the notice of hearing is sent, and the commission construes this to include counterclaims or cross-applications as well as simple amendments. As the deadline for amending or supplementing the pleadings had passed by the time the employer raised sec. 102.58, Stats., the ALJ properly refused to hear the issue. In deciding this issue, the commission notes that the employer here had notice that the department was pursuing the penalty claim as far back as 1993.

The employer also asserts that the negligence of the applicant was an intervening and superseding cause of his death, so the employer should not be liable for the increased penalty under sec. 102.57, Stats. On this point, the commission notes the supreme court's holding that both secs. 102.57 and 102.58, Stats., may apply in the same workers compensation case if the negligence of both the employer and applicant are causes of the employe's injury. Milwaukee Forge v. ILHR Dept., 66 Wis. 2d 428. 437-38 (1975).

The court in Milwaukee Forge also makes it clear that an injured worker's failure to follow the employer's instructions concerning safety does not insulate the employer from liability under sec. 102.57, Stats, if the employer's failure to follow safety rules was also a substantial cause of the injury. This is true even if the injured worker's compliance with the employer's rules would have prevented the accident. Id., at 66 Wis. 2d 436.

In this case, of course, the employer failed to allege a timely sec. 102.58, Stats., claim based on the applicant's failure to follow the employer's rules. Even if it had raised a timely claim and prevailed, however, that would not have precluded the employer's liability under sec. 102.57, Stats. Likewise, a claim of superseding or intervening negligence by the applicant, even if proven, does not insulate the employer from liability under sec. 102.57, Stats., if the employer failed to comply with DILHR (1) safety rules and that failure was a substantial cause of the applicant's injury.

In this case, the fatal accident was investigated by DILHR's Safety and Buildings Division. Its safety specialist issued a report on July 19, 1994 which concludes "the fatality was caused by the failure of the employer to enforce and comply with ILHR 32.50 and 1910.184 (c)(9), 1910.185 (c)(6) (2), and Section 101.11 Wisconsin Statutes." Exhibit A.

Section 101.055 (3)(a), Stats., allows DILHR to adopt federal occupational safety regulations by reference. Under that authority, DILHR has specifically adopted 29 CFR part 1910. See sec. Ind 32.50-1 (table), Wis. Adm. Code. The OSHA regulations adopted by DILHR includes 29 CFR 1910.184, which deals with "slings." Slings are the assembly that connects a load to a material handling device.

29 CFR 1910.184 provides in material part:

"1910.184 Slings. (a) Scope. This section applies to slings used in conjunction with other material handling equipment for the movement of material by hoisting, in employments covered by this part. The types of slings covered are those made from alloy steel chain, wire rope, metal mesh, natural or synthetic fiber rope (conventional three strand construction), and synthetic web (nylon, polyester, and polypropylene).

"(b) Definitions....
"Sling is an assembly which connects the load to the material handling equipment.
...
"(c) Safe operating practices. Whenever any sling is used, the following practices shall be observed:
...

"(6) Slings shall be securely attached to their loads.
...
"(9) All employees shall be kept clear of loads about to be lifted and of suspended loads."

In this case, the report of DILHR's safety and buildings investigator found that the employer had violated DILHR safety rules. His written report to that effect constitutes prima facie evidence as to the matter stated therein under sec. 102.17 (1)(h), Stats. (3) No expert has testified otherwise in this case. Further, after examining the record in this case the commission must agree with the safety inspector's findings. The operation was overseen by the employer's foreman and the employer's failure to use a more secure sling was a violation of DILHR's safety rules, as was the employer's failure to ensure the applicant stood a safe distance from the crane.

The employer also argues that the OSHA rules, adopted by DILHR, are unconstitutional. It cites a case in which the supreme court found a safety rule to be unreasonable and vague. Manitowoc County v. Industrial Commission, 273 Wis. 293 (1956).

In Manitowoc County, a worker was injured when the counterweight detached from the ceiling. The industrial commission concluded the employer had violated a rule that required the employer to use a safety chain which "will prevent" a counterweight from falling closer than seven feet to floor. The court found the rule unreasonable as it imposed an absolute requirement that in effect "makes an employer an insurer." The court also found the rule vague because it did not make it reasonably clear what had to be done to comply. Id., at 273 Wis. 297-98.

To begin with, this commission, like most agencies, has no authority to address the constitutionality of statutes it enforces, McManus v. DOR, 155 Wis. 2d 450, 454 (Ct. App., 1990). Although this case involves a rule rather than a statute, the same conservative approach against such pronouncements should apply.

Nor can the commission conclude the rules at issue here, "the load should be securely attached to the sling" and "employes should stand at a safe distance," are vague. Certainly, the rules do not lead the commission to doubt that an open hook was an insecure sling for bouncing or jerking a load by crane, or that standing 15 feet away from the place where a 60 foot load was suspended was too close. Nor does finding that the an employer violated these rules unreasonably make the employer an insurer.

The employer's next argument is that crane operator Matz's negligence, not its own, caused the piling sheet to be unhooked, and that it should not be held liable for this momentary lapse by Mr. Matz. The problem with this argument is that such momentary lapses are the very reason for the DILHR safety rules. There is no way around the fact that the piling sheet was not securely attached to the crane given the "jerking" type of operation performed in this case. This case does not involve an unforeseeable or unavoidable accident as in Manitowoc County; the facts here present a procedure better described as an accident waiting to happen.

Finally, the employer raises several errors it suggests warrant reversing the ALJ's decision. First, it points to the mis-citation of 29 CFR 1910.184 (c)(9) (dealing with having employes stand clear of suspended loads.) However, the commission cannot conclude that the employer was prejudiced by this. Moreover, 29 CFR 1910.184 (c)(6) (dealing with attaching the load securely) was cited correctly.

Next, the employer complains that the ALJ acted as the unrepresented applicant's counsel by examining witnesses. Of course, ALJs are referred to in the statutes as "examiners," and examination of witnesses by an ALJ is within an ALJ's authority under sec. Ind. 80.12 (1), Wis. Adm. Code. Stated simply, an examination of a witness by an ALJ is not an unconstitutional denial of due process (4).

The employer also asserts that the ALJ should have made the Safety and Buildings inspector available for cross-examination. However, sec. 102.17 (4)(h), Stats., only requires that the inspector be available to examined. It does not require the ALJ to compel the inspector's attendance at the hearing. If the employer wanted to cross-examine the investigator, it was its responsibility to subpoena him. Section Ind. 80.09, Wis. Adm. Code.

Lastly, the employer asserts the ALJ wrongly applied the safe place statute because it applies only to physical conditions, not activities conducted on the premises. This contention, too, must be rejected. The rule the employer's attorney cites refers to "frequenters," whom an employer may not owe protection from negligent acts of its employes on its premises. "Employes" (like the applicant here) are entitled to broader protection which includes not only a safe place of employment, but also safe employment. Leitner v. Milwaukee County, 94 Wis. 2d 186, 193 (1980).

cc: PAT SCHRAUTH

ATTORNEY JULLANE J JACKSON

ATTORNEY SHERMAN ABRAHAMSON


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Footnotes:

(1)( Back ) The department of industry, labor and human relations.

(2)( Back ) The employer points out that this is an incorrect cite; it should be 29 CFR 1910.184 (c) (9). The employer was not prejudiced by this inaccurate citation, since the body of the report specifically indicates that one of the violations was that the applicant stood too near the load.

(3)( Back ) This is stated on the bottom of the form itself.

(4)( Back ) Withrow v. Larkin, 421 US 35 (1975).