Last week, the Wisconsin Supreme Court resolved its first case of the year. It affirmed, by an equally divided court, the published opinion of the court of appeals in Sohn v. LIRC, 350 Wis. 2d 469. The Wisconsin Court of Appeals had earlier held that an employer was required to make the “penalty” payment under Wis. Stat. § 102.57 to an employee who was injured at work. That statute requires employers to make a payment to injured employees, calculated as 15% of the employee’s worker’s compensation award, and capped at $15,000, when an employer violates safety regulations.

Sohn began when an employee severely injured her hand while cleaning manufacturing equipment, which her employer required her to do while the machines were still running. An investigation revealed that the employer’s practices did not comply with OSHA standards governing safe shut-down procedures for servicing machines. The practices also violated Wisconsin’s Safe Place Statute. An administrative law judge awarded the 15% penalty to the employee, and that decision was affirmed by the LIRC, the circuit court, and the court of appeals.

The two issues for the court of appeals were whether federal law preempted the penalty under § 102.57 and whether Wisconsin’s Safe Place Statute could support the penalty payment.

The court of appeals quickly disposed of the preemption argument. Federal law “expressly preserved worker’s compensation laws from preemption” with a savings clause.

The court also resolved the statutory-interpretation issue in the injured employee’s favor. The employer argued that violation of an OSHA standard is not sufficient to trigger liability under § 102.57, because (according to the employer) the statute requires that an employer violate “any statute, rule, or order of [Wisconsin's department of workforce development]” and violating OSHA standards (federal law) would not suffice. The court rejected that argument. It held that the employer’s violation of OSHA standards was evidence of a violation of Wisconsin’s Safe Place Statute and that violation in turn would satisfy § 102.57 ‘s statutory requirement (i.e., violation of “any statute”).

The supreme court was deadlocked. Three justices would have affirmed the court of appeals; three would have reversed. (Justice Prosser did not participate.)

The result is that the published decision of the court of appeals will stand, and violations of OSHA standards now will be more costly for Wisconsin employers.