Opinion
November 3, 1960 —
November 29, 1960.
APPEAL from a judgment of the circuit court for Dane county: EDWIN M. WILKIE, Circuit Judge. Affirmed.
For the appellant there was a brief by Harold Jordan of St. Paul, Minnesota, and oral argument by Mr. Jordan and Mr. Walter P. Ela of Madison.
For the respondent Industrial Commission the cause was argued by John H. Bowers, assistant attorney general, with whom on the brief were John W. Reynolds, attorney general, and Mortimer Levitan, assistant attorney general.
Frank Brown, a fireman and maintenance man employed by plaintiff, lost his sight when a caustic boiler compound, which he was mixing with hot water, erupted into his face.
The only issue is whether the employer is liable for 15 per cent increased compensation because of failure to enforce compliance by its employees with a safety order requiring the use of goggles. The examiner found that there was such failure, and awarded increased compensation. The Industrial Commission affirmed. On May 25, 1960, the circuit court entered judgment confirming the award. Plaintiff appealed.
The findings of the examiner are hereinafter set forth. We have italicized those findings at which plaintiff's challenge appears to be directed.
"That in 1952 the respondent commenced to use at its plant at Marshfield, Wisconsin, a boiler compound prepared by the Western Chemical Company; that such compound was used until approximately April of 1957; that during this period of time the shot-treatment method of treating the boilers was in use and the compound was mixed in small batches of several pounds each in cool water and in wide-mouthed containers; that the applicant was employed as a fireman for approximately five years during this period and regularly and frequently mixed the Western boiler compound; that the compound was 49 per cent by weight caustic soda; that the composition of the compound was at all times known to the respondent; that during the year 1957 the respondent decided to discontinue the Western compound and to use a compound provided by the Drew Chemical Company; that in mixing the Drew compound it was first added to water and caustic soda later added; that the respondent's employees, including the applicant, were instructed by respondent to use boiler condensate, being water of a temperature of 190 degrees F., in mixing the Drew compound; that caustic soda was used in other parts of respondent's plant and the danger of handling such soda was known to respondent and the use of safety goggles and protective clothing required in such other places; that respondent did not consider either the Western or the Drew compounds as dangerous and such safety requirements were not intended to apply and did not apply to handling the boiler compounds; that about ten days before the applicant's injury, the applicant's foreman had a drop of caustic soda splashed on his face while mixing caustic soda with the Drew compound; that the foreman recognized the danger and suggested to respondent's management the purchase of goggles, two pairs of which were hung in the boiler room; that the employees were instructed to wear goggles in mixing the Drew compound; that no instructions were ever given with respect to wearing goggles in mixing the Western compound.
"That after the purchase of the goggles, goggles and gloves were at all times worn when getting the Drew compound from the warehouse and in handling and mixing the Drew compound; that the decision was made by respondent to return to use of the Western compound and on March 19, 1958, such compound was to be mixed and used again for the first time; that the applicant and his foreman went to the warehouse, neither wearing goggles, to measure out a 12-pound batch of the Western compound; that the applicant was instructed to mix such compound; that the applicant returned to the boiler room and drew condensate into a milk can which had been used in mixing the Drew compound; that the applicant poured the Western compound into such can; that there was an eruption into the applicant's face, causing serious visual injury; that the eruption might not have occurred had the water used been cooler or the compound added more slowly.
"That Safety Order, Ind 1.44 (1) (d), provides as follows:
"(1) Eye protection shall be provided where persons are exposed to any hazard which may reasonably be expected to cause injury to the eyes.
"Such hazards are: . . .
"(d) Injurious gases, fumes, and liquids.
"Note: There are many operations and processes where this hazard occurs. Some of these are encountered in the handling of acids and caustics.
"That upon the entire record the respondent failed to reasonably enforce employee's compliance with Order 1.44; that upon the entire record the respondent failed to comply with Order 1.44; that had respondent complied with Order 1.44, injury to the applicant's eyes would not have occurred; that respondent is liable for payment of 15 per cent increased compensation."
Additional facts will be referred to in the opinion.
Sec. 102.57, Stats., provides:
"Where injury is caused by the failure of the employer to comply with any statute or any lawful order of the commission, compensation and death benefits as provided in this chapter shall be increased 15 per cent. Failure of an employer reasonably to enforce compliance by employees with such statute or order of the commission shall constitute failure by the employer to comply with such statute or order."
As stated in the findings of the examiner, a Safety Order, sec. Ind 1.44, 2 Wis. Adm. Code, requires that eye protection shall be provided where persons are exposed to any hazard which may reasonably be expected to cause injury to the eyes. Portions of the section other than those quoted require the use of such eye protection. Failure reasonably to require the employee to use the protection is itself failure to comply with the order. Plaintiff employer does not contend otherwise.
Plaintiff does not appear to challenge the findings which indicate that the mixing of the Western compound presented a hazard which may reasonably be expected to cause injury to the eyes. There is evidence to support such findings. While there was much-less danger if cool water were used and the compound added slowly, the 12 pounds of compound to be mixed was an unusually large amount, and there was no proof that Brown was instructed to return to the use of cooler water.
The gist of plaintiff's argument is that there can be no finding of failure reasonably to enforce the order without a finding "that there were occurrences of noncompliance by employees generally antecedent to the accident, of which the employer had knowledge or should have had knowledge, and failed to take measures reasonably to correct such noncompliance."
Plaintiff's position would be well taken if the employees had been instructed to use goggles when mixing all boiler compounds, had complied, and then Brown without the knowledge of the employer, had failed to use them and been injured as a result. Although there was testimony by the foreman that he had told Brown and all the other employees involved that they must use goggles when "mixing anything at all," and that after that he observed Brown wearing goggles when mixing the Drew compound, there was testimony tending to support the finding that the instruction was given with respect to the Drew compound, but not the Western compound. Brown testified that he had not been instructed to wear goggles when mixing the Western compound; that he used them for the Drew compound because that was the way he understood the instructions. The foreman admitted he did not tell Brown to wear goggles when he was mixing Western after they finished using Drew. He testified that although it was customary to use goggles and gloves when handling the Drew compound, neither he nor Brown used them on the day of the accident when they went to the storeroom to get the Western compound.
We conclude that the findings are supported by the evidence.
By the Court. — Judgment affirmed.