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
...