Bunkelman, 113020 WIWC, 2018-007955

Case DateNovember 30, 2020
CourtWisconsin
CODY BUNKELMAN Applicant
MCFARLAND CASCADE HOLDINGS INC Employer
NEW HAMPSHIRE INSURANCE CO Insurer
No. 2018-007955
Wisconsin Workers Compensation
State of Wisconsin Labor and Industry Review Commission
November 30, 2020
          Attorney Jeffrey J. Klemp           Attorney Justin M. Schuessler          WORKER'S COMPENSATION DECISION 1           Michael H. Gillick, Chairperson.          Order          The commission rewrites and affirms the decision of the administrative law judge (AL·J) issued in this matter on February 25, 2020. Accordingly, the application is dismissed.          By the Commission:           David B. Falstad, Commissioner, Georgia E. Maxwell, Commissioner.          Procedural Posture          On July 6, 2018, the applicant filed a hearing application alleging that on March 24, 2018, he sustained an injury to his left leg that arose out of his employment with the employer, McFarland Cascade Holdings, Inc. He further alleged that this injury was sustained in the course of his employment with the employer. New Hampshire Insurance Company and the employer (respondents) disputed the claim, and hearings were held in the matter on September 10, 2019, and on December 3, 2019. Presiding over the hearings was an ALJ of the Department of Administration, Division of Hearings and Appeals, Office of Worker's Compensation Hearings. On February 25, 2020, the ALJ issued a decision dismissing the applicant's claim. The applicant timely submitted a petition for commission review alleging error in the ALJ's decision.          The commission has reviewed the evidence submitted at the hearings. It has also considered the positions of the parties as set forth in their respective briefs to the commission. The commission affirms the ALJ's ultimate finding of a dismissal of the application. However, in order to more directly address the arguments presented by the parties, the commission rewrites the ALJ's decision to conform with the following:          Findings of Fact and Conclusions of Law          1. The applicant, whose birthdate is February 1985, began his employment with the employer in January of 2017. He worked there as a treating engineer, which involved monitoring the employer's semi-automated process of treating utility poles with preservatives. The applicant performed his duties inside a locked control room building on the employer's premises, except for certain times when he had to go to an outside area to load poles into the system. The outside area was covered with a roof but had no sides. The applicant typically spent most of his time in the control room monitoring the treating process. However, depending upon the type of wood poles being treated, he could spend several hours outside. He worked 12-hour night shifts on rotating nights.2 He worked entirely alone, except for about a half hour on each end of his shift, when oncoming personnel were briefed. A key fob was needed for anyone to enter the control room building, and all the employer's personnel had a key fob.          2. The employer's operation is in Cameron, Wisconsin on a property of approximately 66 acres. It has a railroad line going into it, and a truck scale that by agreement with the employer, other companies also used. The production area of the property was enclosed by an 8-foot chain link fence, and there was a chain link entrance gate that was typically unlocked and unmonitored. A back and side gate were always locked and apparently rarely used. Trucks would enter and exit the entrance gate on their own, and drivers were instructed to slide the chain link gate open and closed.          3. The applicant obtained a Wisconsin Concealed Carry weapon license (CCW) on November 7, 2017. He had purchased a 40-caliber handgun "three or four years" prior to the December 2019 hearing held in this matter.3 He carried the gun outside of work, and he also brought it to work for protection. The employer's Employee Handbook (Appl. Exhibit I) contains two relevant passages concerning the possession of firearms at work. Under "Employee Code of Conduct" (p. 27 of the Handbook), the following conduct is listed as possibly resulting in discipline up to and including discharge:
• The possession of firearms or other weapons on Company property, except where state law overrides this rule.
         Under "Workplace Violence and Workplace Bullying" (p. 43 of the Handbook) there is stated a "zero tolerance" for conduct that includes, "...use of weapons, carrying weapons of any kind onto Company property..."          4. The applicant began bringing his handgun to work after obtaining the CCW license in November of 2017. He did not tell anyone at the employer's workplace, including co-workers, that he was bringing the gun to work. He alleges that he read the Handbook language, "except where state law overrides this rule," to mean that having a CCW license overrode the employer's rule against bringing weapons to work. He alleged that he never read the other language about "zero tolerance" on page 43 of the Handbook, and that he brought the gun to work because he was alone at night and was concerned about his safety. He also argued that he believed the gun could be useful to protect the employer's interests in the security of the property.          5. The credible inference is that the applicant knew the employer had a rule against bringing firearms to work. The rule provided for an exception, "where state law overrides this rule." Despite the ambiguity inherent in whether this exception might encompass the scenario of an employee obtaining a CCW license before bringing a gun to work, the applicant unilaterally and arbitrarily chose to exempt himself from the rule after obtaining a CCW license. He deliberately did not tell the employer or his coworkers that he was bringing a firearm to work, and it is inferred that this was because he knew the employer might not approve of such action.          6. At approximately 8 or 9 p.m. the evening of March 24, 2018, the applicant was at work in the control room when he accidentally discharged his handgun and the bullet went through his left thigh. At the time of the accident he was talking to his wife on his cell phone, and loosely monitoring the treatment process. It is evident that he was also doing something with his gun before it discharged. He described the incident in testimony:
A. It happened so fast I was in obviously shock. I split my femur in half, but what I do remember is I had my - the slide of the gun, the top of the gun locked back, in a locked
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