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  • WisBar News
    October 07, 2014

    Employee Gets Additional Compensation for Workplace Safety Violations

    Oct. 7, 2014 – Federal workplace safety regulations do not preempt an injured employee from receiving additional worker’s compensation under state law, according to a split decision by the Wisconsin Supreme Court that affirms a lower appeals court.

    More than a year ago, a state appeals court ruled that employee Tanya Wetor was entitled to increased damages under Wis. Stat. section 102.57, which says employers pay an additional 15 percent penalty for violating workplace safety provisions.

    Recently, the Wisconsin Supreme Court issued a per curiam opinion in Sohn Manufacturing v. LIRC, explaining that the court was divided 3-3 (Justice David Prosser did not participate), and the decision of the appeals court was thus affirmed.

    Employee Tanya Wetor injured her hand while cleaning a machine at Sohn Manufacturing. Sohn was allowing employees to clean machines while still in operation, a practice that violated the federal Occupational Safety and Health Administration (OSHA) standards for workplace safety, in addition to Wisconsin’s safe place statute.

    An administrative law judge (ALJ) concluded that Sohn violated both federal and state workplace safety laws, and ordered Sohn to pay the additional 15 percent penalty.

    The Labor and Industry Review Commission (LIRC) upheld the ALJ’s decision, and a judge for the Sheboygan County Circuit Court upheld the LIRC decision.

    On appeal, Sohn argued that the 15 percent penalty does not apply, because the federal Occupational Safety and Health (OSH) Act and U.S. Supreme Court precedent preempt section 102.57’s penalty for workplace safety violations.

    Sohn said section 102.57’s penalty previously applied for violations of a statute, rule or order of the Wisconsin Department of Workforce Development (DWD).

    But when the OSH Act was enacted in 1970, Sohn argued, workplace safety became a matter of federal regulation that preempted section 102.57.

    “[T]he DWD no longer has statutes, rules, or orders of its own relative to workplace safety,” argued Sohn’s lawyers in appellate briefs, asserting the DWD now “relies entirely on outside sources” to determine if workplace safety violations have occurred.

    However, a three-judge panel disagreed with that conclusion.

    “The penalty award found in Wis. Stat. § 102.57 was in force when Congress enacted OSH Act, and Congress has not placed any express limitation on Wisconsin’s worker’s compensation laws,” Judge Paul Reilly wrote in the decision of August 7, 2013.

    The appeals court explained that “of the department” in section 102.57 modifies “orders” of the DWD, but it does not modify the word “statute.” Since Sohn violated Wisconsin’s safe place statute, it was appropriate to order the 15 percent penalty, the panel noted.

    The supreme court’s per curiam opinion notes that Chief Justice Shirley Abrahamson, and Justices Ann Walsh Bradley and Patrick Crooks would affirm LIRC’s decision. Justices Patience Roggensack, Michael Gableman, and Annette Ziegler would reverse.

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