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


KEITH GALLAGHER, Applicant

SMITHFIELD FOODS, Employer

TRAVELERS INDEMNITY CO OF ILLINOIS, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 96047450


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.

ORDER

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

Dated and mailed: April 30, 1998
gallake.wsd : 101 : 7  7.17  7.18  7.1  7.2

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

1. Posture.

The hearing in this case involved a claim for 15 percent increased compensation under Wis. Stat. 102.57 (brought by the applicant) and a claim for 15 percent decreased compensation under Wis. Stat. 102.58 (brought by the employer) for what each assert is the other's safety violation causing the applicant's work injury. In addition, the employer asserted it had overpaid benefits based on an average weekly wage of $409.22 rather than the correct wage of $353.20.

The ALJ awarded neither increased nor decreased compensation, and so ordered the employer to pay the 15 percent it had previously withheld totaling $1,178.34. He also held that $409.22 was in fact the correct wage.

Both sides appeal, reasserting their respective increased/decreased compensation claims. The employer also reasserts its claim the average weekly wage should be only $353.20. It also now contends that, in any event, the ALJ miscalculated the award of $1,178.34.

2. Increased/decreased compensation claims.

The commission must first decide two closely related issues: whether the applicant's compensation should be increased under Wis. Stat. 102.57, or decreased under Wis. Stat. 102.58. 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."

The standard for awarding increased compensation under Wis. Stat. 102.57 is whether an employer's safety violation or unsafe practice is "a substantial factor in bringing about the injury;" it need not be the sole cause. Milwaukee Forge v. ILHR Dept., 66 Wis. 2d 428, 437 (1975). The same "substantial factor" causal test also applies to safety rule violations by the injured worker resulting in decreased compensation under Wis. Stat. 102.58. Id. In fact, given that safety violation (by either the worker or employer) need not be the "sole cause," both Wis. Stat. 102.57 and 102.58, may apply in the same workers compensation case if safety violations by both the employer and applicant are substantial factors in the occurrence of the injury. Milwaukee Forge, 66 Wis. 2d at 437-38.

The basis for the applicant's claim for increased compensation is the frank testimony of Executive Fulayter that the applicant was inadequately trained and should not have been allowed to operate the Tieramat machine alone. The grounds for the employer's assertion the award should be decreased is the applicant's violation of the safety rules.

Regarding the applicant's claim for increased compensation, the record establishes that the Tieramat machine was adequately guarded; the applicant was only hurt because he reached his hand into a guarded area, perhaps as far as 21 inches. The applicant admits he had been shown the proper way to clear jams, and had performed the procedure himself. Thus, despite Executive Fulayter's statement that the applicant was inadequately trained and should not have been allowed to operate the machine alone, the degree of the applicant's training was neither a safety violation by the employer nor a substantial factor in bringing about the applicant's injury.

Regarding the claim for decreased compensation, the applicant faces the task of defending against his violation of the employer's rule against reaching into machines while they were operating. The applicant attempted to prove he slipped, so thus the cause of his injury was not simply the reaching in but the slipping which caused his arm to go in further than he intended. The ALJ did not accept this testimony, however, and did not find that the applicant slipped.

On the other hand, the applicant testified, credibly in the ALJ's view, that trainer/crew leader "Joe" had unjammed the machine while it was operating. This leads to the conclusion that the safety rule against reaching into this machine, which frequently jammed, may not have been reasonably enforced. Or it could be that the applicant misunderstood what Joe was doing, due possibly to his unfamiliarity with the machine, and so was unaware that the rule against reaching into the machine was reasonably enforced. Accordingly, the commission declines to decrease the applicant's compensation under Wis. Stat. 102.58 on this record.

3. Average weekly wage.

The applicant's average weekly wage is also at issue. The ALJ found an average weekly wage of $409.22, based the wage on an average of the applicant's prior 52 weeks of actual wages. (1) However, the employer points out that Wis. Stat. 102.11(1)(d) refers to actual wages in the preceding year "in the kind of employment and for the employer for whom the employe worked when injured."

The employer asserts that the applicant only worked as "lead man trainee" in the meat slicing department for three weeks before his injury, and that this position constituted a different "kind of employment" than he had previously held for the employer. Thus, the employer contends, the applicant's average weekly wage should be based only on the last three weeks of his employment. The employer asserts that this works out to a much lower weekly rate, $353.20 (the commission calculates $355.96), than the $409.22 found by the ALJ.

However, there is no evidence the applicant was paid a different hourly wage when he transferred to the meat slicing department, or even worked different hours. The record indicates that the applicant's earnings varied greatly from week to week during the entire 52-week period specified in respondent's Exhibit 15, regardless of which job he had. It does not appear the applicant had anything close to a set number of hours at any point. The commission cannot conclude from the record that the applicant was paid a different wage based on a different kind of employment while working in the meat slicing department.

Further, the employer argues at another point in its brief that the applicant was not a "green employe" and that his experience elsewhere in the plant should have made it clear to him that he should not have stuck his hand inside the machine, regardless of his familiarity with the Tieramat machine specifically. This leads the commission to conclude that while the applicant's duties may have been different after he transferred to the meat slicing department, he cannot be realistically viewed as changing "employments."

In sum, there really is no evidence that the applicant's "employment" changed in any material fashion, much less that his hours or wage did, when he transferred to the meat slicing department. The commission concludes the ALJ properly based the applicant's average weekly wage on a 52-week average, rather than a three-week average.

4. Calculation of award.

Lastly, the employer claims the ALJ miscalculated the applicant's award. It asserts that, based on the ALJ's reasoning, it should only have to pay $997.67, not the $1,178.34 the ALJ awarded.

However, the ALJ found that the employer paid the applicant $6,677.25 in temporary disability, after withholding 15 percent of the full amount based on its assertion that the decreased compensation provision applied. In other words, the amount the employer conceded and paid was 85 percent of what the ALJ found the applicant should have received because the decreased compensation provision did not apply.

If the applicant was paid only 85 percent of his full award, the remaining amount due may be easily calculated by dividing what he was paid ($6,677.27) by 85 and then multiplying the resulting quotient by 15. Or one may divide $6,677.25 by 0.85 (to determine the full amount he should have gotten) and subtract $6,677.25 therefrom to get the difference. Either way, the award works out to the amount the ALJ calculated: $1,178.34.

cc: ATTORNEY ROBERT T WARD
SCHIRO & WARD

ATTORNEY DANIEL J STANGLE
OTJEN VAN ERT STANGLE LIEB & WEIR SC


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Footnotes:

(1)( Back ) The parties evidently agreed to use a 52 week year rather than a preceding four calendar quarter year.