If an employer safety violation is a substantial factor in causing a Wisconsin workers compensation injury, the employer must pay a 15% penalty in the form of increased disability and death benefits. Wis. Stat. § 102.57. The penalty will be based on the amount of primary compensation paid by the insurance carrier, but the total increase is limited to $15,000.
The State of Wisconsin Safety and Buildings Division investigates industrial injuries that appear to have been caused by safety violations and will issue a report, finding (1) a violation by the employer of section 102.57 ; (2) no violation; or (3) a violation by the employee of section 102.58. Federal investigators from the Occupational Safety and Health Administration (OSHA) generally do not testify at worker’s compensation hearings and prefer to provide documentation. OSHA documents authenticated under section 909.02(1) and (4) are admissible under section 908.03(8). OSHA refuses to disclose compliance officers’ notes and witness statements but will provide other information.
A finding of liability for 15% increased compensation may be based either on a violation of an administrative safety rule or on a violation of section 101.11(1), the safe-place statute.
The employer must enforce compliance with all safety rules and the safe-place statute. However, the employer is not liable for co-employee negligence, unless the employer had previous notice of the co-employee’s habitual negligence and failed to do anything. Any negligent act by a supervisory employee is a violation of the safe-place statute if the act causes injury. Evidence of employer subsequent remedial measures is admissible cases concerning violations of the safe-place statute. Unless a claim is based on a supervisor’s negligent act, the employee must prove that the employer had actual or constructive notice of the unsafe equipment, condition, or practice.
The claimant has the burden of proving that the safety violation was a substantial factor in causing the injury. Causation is presumed when a violation of a safety order is shown and the injury is of the kind that the order was designed to prevent.
An injured worker’s compensation may be decrease by 15% if an injury is caused by the employee’s failure to use a safety device that is provided in accordance with a statute or with a DWD administrative rule if the device is adequately maintained and if its use is reasonably enforced. Compensation is also reduced if the injury is caused by the employee’s failure to obey a reasonable safety rule that is enforced by the employer or if the injury is caused by the employee’s intoxication. The maximum reduction is $15,000.
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