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


DONNA K. GRETZ, Applicant

GOETZE CORPORATION OF AMERICA, Employer
N/K/A FEDERAL MOGUL

HARTFORD ACCIDENT & INDEMNITY COMPANY, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1990037421


The applicant submitted a petition for commission review alleging error in the administrative law judge's Findings and Order issued in this matter on May 6, 1998. At issue is whether the employer is liable for payment of 15 percent increased compensation, pursuant to Wis. Stat. 102.57, stemming from the conceded work injury of June 11, 1990.

The commission has carefully reviewed the entire record in this matter and hereby reverses the administrative law judge's Findings and Order. The commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant injured her left hand while operating a sharp edge grinder for the employer on June 11, 1990. The grinder had been purchased from Germany and installed in 1981, but the applicant had been operating it for only about eight months. The grinder was formerly used as a heeled grinder as opposed to a sharp edge grinder, but there is no explanation in the record of the difference between these two types of grinding operations.

On the date of injury, the applicant followed her normal procedure of placing a piston ring (six inches in diameter and about one-quarter inch thick) into a cup which held the ring tightly. The applicant stood in front of the sharp edge grinder to do this, and used both hands to place the piston ring into the cup. Next, she activated the grinder by pressing a start button with her right hand. The start button was located about 18 inches above and to the right of the cup. This caused the cup to spin and move to the left into a grinding wheel about 12 inches away. Both the cup and the grinding wheel were rotating. The applicant's gloved left hand remained near the cup, and within a matter of a second, it was drawn into the cup, and then the grinder. This resulted in serious injury to her left hand, including amputation of the left little finger. Shortly after the applicant's injury, the employer installed a left-hand start button, thus requiring both hands to be away from the moving parts in order to activate the machine.

The administrative law judge found no violation of the safe place statute (Wis. Stat. 101.11), primarily on the basis that in his opinion, the employer did not have actual or constructive notice of an unsafe condition prior to injury. He also relied upon the fact that prior to the injury, the applicant had not recognized a hazard or complained to the employer about an unsafe condition. Finally, he refused to allow the applicant's attorney to submit any post-hearing citations to relevant OSHA or State regulations, indicating that such citations should have been prepared prior to hearing.

Wis. Stat. 102.57 provides for 15 percent increased compensation:

"If injury is caused by the failure of the employer to comply with any statute or any lawful order of the department. . ."

29 C.F.R. 1910.212 is adopted as the law in Wisconsin pursuant to Wis. Stat. 101.055(3)(a) and Chapter DWD 32.50(1). 29 C.F.R. 1910.212 provides that the point of operation of machines whose operation exposes an employe to hazards such as rotating parts shall be guarded (a copy of the full regulation is attached to this decision) (1). This regulation reflects a fundamental safety concern for machines with dangerous rotating parts such as the sharp edge grinder. The sharp edge grinder which injured the applicant was unsafe without a guard or two-hand tripping device. The fact that the applicant did not recognize this, at least to the extent of complaining about it to the employer, is irrelevant to the fact that the employer violated Wisconsin law by not providing a guard or two-hand tripping device.

The applicant's attorney should have come to the hearing prepared to cite the relevant statute and regulation, but this does not change the fact that the employer violated the law. The administrative law judge and the commission are required to apply relevant law to the case, even though an attorney may fail to provide proper assistance in that task. Additionally, there is nothing in the law to preclude an attorney from submitting relevant legal citations after a hearing and prior to the issuance of a decision.

Given the employer's violation of 29 C.F.R. 1910.212, the issue of whether there was constructive notice, and thus a violation of Wis. Stat. 101.11, becomes moot. However, even were it not for the violation of 29 C.F.R. 1910.212, the commission would have found a violation of the safe place statute. With regard to constructive notice, the court stated the following in Caldwell v. Piggly Wiggly Madison Company, 32 Wis. 2d 447, 452-53, 145 N.W.2d 775 (1966):

"We have defined constructive notice as follows:

'Constructive notice of course is neither notice nor knowledge, but a mere shorthand expression. We say a person has constructive notice of something when for promotion of sound policy or purpose he is to be treated as if he had actual notice, whether or not he had it in fact. Schoedel v. State Bank of Newburg, 245 Wis. 74, 76, 13 N. W. (2d) 534.' Uhrman v. Cutler- Hammer, Inc. (1957), 2 Wis. (2d) 71, 75, 85 N. W. (2d) 772.

In Turk v. H. C. Prange Co. (1963), 18 Wis. (2d) 547, 561, 119 N. W. (2d) 365, we determined that the following instruction offered by the trial court correctly embodied the recognized principles of law:

`If you find from the evidence that an unsafe condition existed for such a length of time that the defendant . . . by the use of ordinary care, could have become aware of its existence and remedied the situation prior to the time the plaintiff sustained her injury, then the defendant . . . is charged with such knowledge.' "

Essentially, ordinary care and foreseeability are the essence of constructive notice. The danger presented by the sharp edge grinder, which had rotating and spinning parts potentially coming in direct contact with the operator's gloved hand, was foreseeable and could have been eliminated by ordinary care, such as the installation of a two-hand tripping device.

Finally, the administrative law judge cited Milwaukee Corrugating Co. v. Industrial Commission, 197 Wis. 414, 222 N.W. 251 (1928), for the proposition that the applicant had the burden of proving that the employer had knowledge of the existence of an available guard for the machine, and that its use would have been practicable. Milwaukee Corrugating predates the existence of 29 C.F.R. 1910.212, which puts the burden on employers to provide guards or two-hand tripping devices on machines such as the sharp edge grinder. The regulation does not require the injured worker to carry any burden of proof with regard to the employer's knowledge or the practicability of a particular guarding device. The most logical and practicable method for complying with 29 C.F.R. 1910.212 in this instance was installation of a two- hand tripping device, something the employer should have had no difficulty perceiving prior to the applicant's injury. The commission therefore finds that employer violated Wis. Stats. 102.57, resulting in a 15 percent penalty against total payments of $14,147.91, for a penalty amount of $2,122.19. The applicant received an additional $2,000 to settle her disfigurement claim, but the commission does not apply the 15 percent penalty against amounts received in compromises. James R. McCoy v. Fox Valley Construction Company, WC claim no. 85-036974 (LIRC May 31, 1990). Pursuant to Wis. Stat. 102.62, primary liability for the penalty amount rests with the employer, but Hartford Accident and Indemnity Company is secondarily liable. The applicant's attorney is entitled to a 20 percent fee.

NOW, THEREFORE, this

ORDER

The Findings and Order of the administrative law judge are reversed. Within 30 days from this date the employer shall pay to the applicant the sum of One thousand six hundred ninety-seven dollars and seventy-five cents ($1,697.75); and to applicant's attorney, Keary W. Bilka, fees in the amount of Four hundred twenty-four dollars and forty-four cents ($424.44).

Hartford Accident and Indemnity Company remains secondarily liable for payment of these amounts.

Dated and mailed: August 6, 1998
gretzdo . wsd : 185 : 8   ND 7.1  7.12

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission reversed the administrative law judge's Order as a matter of law. The credibility and demeanor impressions of the witnesses who testified at the hearing were not at issue, because the facts of the case were not in dispute.

cc: KEARY W BILKA
ATTORNEY AT LAW


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Footnotes:

(1)( Back )

1910.212 General requirements for all machines.

(a) Machine guarding.

(1) Types of guarding. One or more methods of machine guarding shall be provided to protect the operator and other employees in the machine area from hazards such as those created by point of operation, ingoing nip points, rotating parts, flying chips and sparks. Examples of guarding methods are--barrier guards, two- handed tripping devices, electronic safety devices, etc.

(2) General requirements for machine guards. Guards shall be affixed to the machine where possible and secured elsewhere if for any reason attachment to the machine is not possible. The guard shall be such that it does not offer an accident hazard in itself.

(3) Point of operation guarding.

(i) Point of operation is the area on a machine where work is actually performed upon the material being processed.

(ii) The point of operation of machines whose operation exposes an employee to injury, shall be guarded. The guarding device shall be in conformity with any appropriate standards therefor, or, in the absence of applicable specific standards, shall be so designed and constructed as to prevent the operator from having any part of his body in the danger zone during the operating cycle.

(iii) Special handtools for placing and removing material shall be such as to permit easy handling of material without the operator placing a hand in the danger zone. Such tools shall not be in lieu of other guarding required by this section, but can only be used to supplement protection provided.

(iv) The following are some of the machines which usually require point of operation guarding:

(a) Guillotine cutters.
(b) Shears.
(c) Alligator shears.
(d) Power presses.
(e) Milling machines.
(f) Power saws.
(g) Jointers.
(h) Portable power tools.
(i) Forming rolls and calendars.

(4) Barrels, containers, and drums. Revolving drums, barrels, and containers shall be guarded by an enclosure which is interlocked with the drive mechanism, so that the barrel, drum, or container cannot revolve unless the guard enclosure is in place.

(5) Exposure of blades. When the periphery of the blades of a fan is less than seven (7) feet above the floor or working level, the blades shall be guarded. The guard shall have openings no larger than one-half (1/2) inch.

(b) Anchoring fixed machines. Machines designed for a fixed location shall be securely anchored to prevent walking or moving.