Opinion
No. 425.
Argued January 2, 1975. —
Decided February 4, 1975.
APPEAL from a judgment of the circuit court for Dane county: W. L. JACKMAN, Circuit Judge. Affirmed.
For the appellant there was a brief by Peck, Brigden, Petajan, Lindner, Honzik Peck, S.C., attorneys, and Barton M. Peck and Albert H. Petajan of counsel, all of Milwaukee, and oral argument by Gary A. Marsack of Milwaukee.
For the respondents the cause was argued by Lowell E. Nass, assistant attorney general, with whom on the brief was Robert W. Warren, attorney general.
Action for review of an award of the industrial commission. James Stephan was employed by Milwaukee Forge. On April 21, 1970, while operating a trim press in the course of his employment, Stephan met with an accident which resulted in the loss of his left hand. Stephan received workmen's compensation benefits, it being conceded that the injury was compensable.
A hearing was held on April 20, 1972, before an examiner to determine whether Milwaukee Forge is liable for 15 percent increased compensation for an alleged violation of a safety order or statute or whether the compensation being paid should be reduced 15 percent for failure to use safety devices or for violation of a reasonable safety rule.
Stephan had operated the trim press two or three times before the night of the accident. His work in operating the press required him to take a red-hot forging from the "hammerman" and place it in his trim press. The forgings were handled with tongs approximately 26 or 27 inches long. The press was controlled by a foot treadle contained in a small box into which the foot had to be inserted to step on the treadle. The cycle of the press was started by merely touching the treadle and the cycle takes four to five seconds to complete. After the press completed its trimming cycle, the forgings are pushed through the machine, over a deck and into a bucket. However, sometimes the forgings would pile up on the deck rather than falling into the bucket. A "hitcher" was supposed to pull the forgings off the deck and take the buckets away when they were full.
At the time of the accident, five or six forgings were on the deck. The "hitcher" was apparently not around so Stephan reached through his machine to push the forgings off the deck with his tongs. The press went through its cycle and amputated Stephan's left hand. Stephan testified that reaching through the machine was accepted practice but admitted he had been told not to put his hand in the press. It would have taken two or three minutes for Stephan to have walked around the press to clear off the deck rather than reaching through the machine.
Other employees testified that although there was a rule against putting your hands underneath the press, it was occasionally done. The vice-president of the company testified that the two alternatives for removing trimmed forgings from the deck or "bolster plate" are to either go around the press or to reach through it, but that the latter was a violation of the rules because it meant putting your hands under the operating press. Upon questioning by the examiner, he admitted that it would be helpful for the press operator to have a long pole-type device to be used to knock forgings off the deck.
At the close of the hearing, the examiner noted that the employer withdrew the allegation that compensation payable to Stephan should be reduced by 15 percent for an alleged violation of a safety rule or failure to use safety devices.
On May 3, 1972, the hearing examiner made his findings of fact and order. The order was that the 15 percent increased compensation was to be paid to the employee. This order was based on findings of fact which relied on the pay schedule which makes the pay of each member of the crew dependent upon the performances of other members in determining that under the circumstances, Stephan's injury was not due to his failure to obey a reasonable safety rule: and that the employer failed to provide a safe place of employment.
The employer petitioned the department for a review of the examiner's findings. The commission on August 3, 1972, modified the findings of the examiner but made the same order. The basis for the commission's order is found in the following paragraph from its findings of fact:
"That the 26-inch-long tongs were too short for this purpose; that the inherent danger to the operator's hands could have been eliminated by providing tongs which were sufficiently long to reach the deck and push the forgings off when required; that the employer did not provide to the applicant a safe place of employment and did not use methods and processes reasonably adequate to render the applicant's employment by the employer safe; that the employer failed to comply with Section 101.06 of the Wisconsin Statutes; that if the employer had complied, injury probably would have been avoided."
The findings and order of the commission do not mention the pay schedule or the employee's violation of safety rules.
Milwaukee Forge then commenced an action in the circuit court for Dane county to review the order of the commission. In a memorandum decision dated March 26, 1973., Judge CURRIE concluded that there was credible evidence that the employer violated the safe-place statute. However, he stated that "This finding of a violation of the Safe-Place Statute may prove academic if the department on remand should find that the employee's injury was caused by a violation of the employer's instructions not to place his hands in the press." The order was reversed and remanded to the department for further proceedings because the findings modifying those of the examiner omitted any findings with regard to the failure of Stephan to follow the safety rules without explaining why that finding of the examiner was omitted. Judge CURRIE stated that in addition to making a finding that the employer had prior to the accident instructed the employee not to put his hand in the press, findings should be made as to whether there existed any justification for the employee ignoring such instruction and on the causation issue. Judgment was entered pursuant to this decision.
The commission made new findings of fact on July 12, 1973. It again found that because the length of the tongs was too short for the purpose of pushing forgings off the deck, Milwaukee Forge violated the safe-place statute and that had it complied with the statute, injury probably would have been avoided. Additionally, however, it was found that Stephan violated a reasonably enforced safety rule of the employer against putting his hands into the press: and that he knew this rule when he violated it.
The liability of the workmen's compensation insurance carrier was decreased by 15 percent because of the violation of the safety rule by Stephan, but Milwaukee Forge was ordered to pay Stephan $2,167.95 as increased compensation because of its violation of the safe-place statute.
Milwaukee Forge then commenced an action to review this order. The circuit court affirmed the order of the commission. It based its decision on the fact that the law of causation recognizes that there may be more than one cause of an injury. Milwaukee Forge appeals from the judgment.
The sole issue presented on appeal is whether an employer is subject to the provisions of sec. 102.57, Stats., for violating the safe-place statute where the employee who was injured violated the employer's safety rules.
The circuit court, in its decision of March 26, 1973, concluded that there was sufficient credible evidence to support a finding of a violation of the safe-place statute, sec. 101.06, Stats. 1969 (now sec. 101.11) by the employer, Milwaukee Forge. This decision was not appealed to this court. Therefore, this determination is res judicata. See: Cathey v. Industrial Comm. (1964), 25 Wis.2d 184, 186, 130 N.W.2d 777.
In a proper case, an award of increased compensation can be based upon a finding of a violation of the safeplace statute without a finding of a violation of any particular safety order. Eau Claire Electric Co-operative v. Industrial Corem. (1960), 10 Wis.2d 209, 217, 102 N.W.2d 274.
"However, mere violation of the safe-place statute does not sustain an award of 15 percent increased compensation. Applicant must show that the violation was the cause of the accident. Wm. Esser Co. v. Industrial Comm. (1926), 191 Wis. 473, 211 N.W. 150." Van Sluys v. ILHR Department (1968), 38 Wis.2d 419, 424, 157 N.W.2d 606.
Because it had been established that there was a violation of the safe-place statute for purposes of this case, the question of causation must be determined.
Appellant argues that the "cause" of the injury was Stephan's failure to follow the safety rule against putting hands into the press and not its failure to provide longer tongs. It also argues that it was not the legislature's intent for sec. 102.57, Stats., to apply to a "contributing cause" because if that were the legislature's intent, it would have so stated.
Milwaukee Forge relies primarily on the case of L. G. Arnold, Inc. v. Industrial Comm. (1957), 2 Wis.2d 186, 85 N.W.2d 821. In that case, a certified blaster was killed when he was hit by a piece of concrete from a pier he was hired to remove. The industrial commission granted increased compensation because safety orders had been violated in the blasting operation and the equipment needed to comply with the safety orders was available to him, but he did not use it. The court reversed the order of the commission, saying:
"Randerson [the blaster] was in charge of blasting operations. He was the only one who could direct that the available equipment be used. He was advised to use some of it, but he spurned the advice. The barges were equipped with motors and could have been moved to any position on the river.
"The finding by the commission that a shelter, blasting mats, and sufficient wire were not furnished by the employer is not supported by substantial evidence in view of the entire record. In Wisconsin Bridge Iron Co. v. Industrial Comm. 273 Wis. 266, 269, 77 N.W.2d 413, this court said:
"`It is well established that an employer may not be subjected to a penalty where the injury is the result of negligent or inadvertent acts of its employees. Saxe Operating Corp. v. Industrial Comm. (1929), 197 Wis. 552, 222 N.W. 781.'" L. G. Arnold, Inc. v. Industrial Comm., supra, at p. 191.
We agree with the circuit court's reasoning that you cannot equate the case at bar with the case where the employer furnished adequate safety equipment but the employee in a single instance neglected to use it and was injured or the case where the injury was caused by momentary inadvertence of a coemployee.
The case of Eau Claire Co-operative v. Industrial Comm., supra, supports the department's finding in this case. In that case, an employee of the power company was injured while working on a power transmission line. After determining that there had been a violation of the safe-place statute, this court discussed the employee's negligence:
"Plaintiff next argues that Gunnes would not have been injured had he used insulated gloves and installed temporary grounds for his own protection; that instructions of plaintiff and certain safety orders of he commission required him to use one or both of these methods of protection notwithstanding the assumed fact that the line was de-energized. Although the use of these devices by Gunnes probably would have prevented or reduced the injury, and in that sense his failure to use them may have been a contributing cause of his injury; nevertheless, the employer's failure was also a substantial cause of the injury. The statutes nowhere provide that the employer is to be exempted from the increased-compensation penalty provided by sec. 102.57, Stats., if the injury could have been avoided by compliance by the employee with all instructions and orders." (p. 218.)
Applying these rules established in negligence cases, Stephan's negligence in placing his hand into the press would be an intervening force but it would not be a superseding cause.
"In sec. 440, Restatement, Torts 2d, p. 465, a `superseding cause' is defined as, `A superseding cause is an act of a third person or other force which by its intervention prevents the actor from being liable for harm to another which his antecedent negligence is a substantial factor in bringing about.' This definition is in terms of effect. But secs. 442: to 453, inclusive, set forth the rules to be used in determining when an intervening force is not superseding in nature." Diener v. Heritage Mut. Ins. Co. (1967), 37 Wis.2d 411, 418, 155 N.W.2d 37.
Sec. 447 of the Restatement, 2 Torts 2d, provides that a negligent intervening act by a third party is not a superseding cause of harm which the actor's negligent conduct is a substantial factor in bringing about if:
"(a) the actor at the time of his negligent conduct should have realized that a third person might so act, or
"(b) a reasonable man knowing the situation existing when the act of the third person was done would not regard it as highly extraordinary that the third person had so acted, or
"(c) the intervening act is a normal consequence of a situation created by the actor's conduct and the manner in which it is done is not extraordinarily negligent."
We think Stephan's act did not amount to a superseding cause. His attempt to push the forging ahead is a normal response to the employer's failure to furnish adequate tools to do the work. Appellant's failure to provide tongs of sufficient length to push the forgings off the deck was a substantial factor in bringing about Stephan's injury. Had longer tongs been provided, Stephan's hand would not have been under the press. The testimony of other employees indicates that Stephan's act was not the only time that a press operator had reached through the press. Also, the testimony of a foreman shows that he was aware of violations of the safety rule because he stated that when he observed such violations he walked up to the employee and told him about it. Therefore, the failure of the employer to provide longer tongs was a substantial factor in bringing about the injury and Stephan's violation of the safety rule was not a superseding cause.
Applying both secs. 102.57 and 102.58, Stats., to the same case is permissible. These sections apply where the conduct specified "caused" the injury. Under the substantial factor concept of causation there can be more than one cause of the injury. This application of statutes of this nature is favored in 2 Larson, Workmen's Compensation Law, sec. 69.20:
"A more equitable solution, which would seem to be perfectly possible legally, would be to let the two failures cancel each other out by simultaneously applying both penalties, and award the regular benefits."
In this state and under the department's order here, the two sections do not really cancel each other out because the employer's liability for the increased compensation becomes primary and his insurance carrier's liability is only secondary.
This application of the statute is consistent with the legislative purpose for the statutes.
"The legislative objective is plainly to put upon the employer the duty of providing safety appliances of a certain standard and to, penalize those who fail to conform. It is hoped that such a penalty will promote compliance with the regulations." Daniels v. Industrial Comm. (1942), 241 Wis. 649, 651, 6 N.W.2d 640.
A similar objective would appear to be accomplished under sec. 102.58, Stats. Both these objectives would be served by imposing the provisions of both statutes where the conduct of both the employer and the employee are substantial factors in bringing about the injury.
We conclude the findings of the department are supported by the evidence and the application of both statutes to this situation is correct.
By the Court. — Judgment affirmed.