JON ERDMANN, Applicant

DYKSTRA CONTRACTORS, Employer

WIS WC UEF, Insurer

An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and order in that decision as its own.

The findings and order of the administrative law judge are affirmed.

Dated and mailed January 25, 2007
erdmajo . wsd : 175 : 8    ND § 5.36

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

The employer asserts in its petition for commission review the administrative law judge erred in determining the applicant was entitled to an award for disfigurement pursuant to Wis. Stat. § 102.56(1), and awarded the applicant $7,000.00 for disfigurement pursuant to the statute. The employer contends the administrative law judge's award should be reversed since the evidence shows the applicant is intent on performing mechanic work, and has no aspirations for the type of employment where his elbow scars would matter in the least. The employer states that it is likely that most auto and truck mechanics have scars on their hands or arms due to the nature of the work. However, there was no evidence presented at the hearing to establish that, in general, persons in the applicant's line of work had visible scars on their arms. The evidence indicated the applicant's surgical scars on his elbow are quite visible from the side and the rear. The applicant testified he has consistently worn short-sleeved shirts in various occupations, including his current work as a mechanic, and in fact the employer provided him with a short-sleeved shirt to wear in his work.

The applicant was 30 years old at the time of the hearing and had not obtained a high school degree. Pursuant to Wis. Stat. § 102.56(1) if an employee is so permanently disfigured as to occasion potential wage loss the department may allow such sum as it deems just as compensation therefor, not exceeding the employee's average annual earnings. Under the statute, in determining the potential for wage loss the department shall take into account the applicant's age, education, training and previous experience, and earnings of the employee, the employee's present occupation and earnings, and likelihood of future suitable occupational change. The consideration for disfigurement allowance is confined to those areas of the body that are exposed in the normal course of employment. The evidence demonstrated the applicant's scarring on his elbow is exposed in the normal course of his employment.

The evidence indicates the applicant has held several labor and unskilled positions throughout the eight to ten years leading up to his current work as a mechanic. The evidence established the applicant's current occupation causes him problems with his elbow, and he continues to take pain medication in order to perform his work at least part of the time. The applicant's vocational rehabilitation counselor has recommended that he seek retraining in the area of electronics, electrical engineering and fluid power maintenance, or machine tool and mechanical design, but the applicant has declined to undergo such retraining.

Although the employer is correct the applicant stated he wishes to remain as a mechanic with his current employer, his physical restrictions may not allow him to do so. In addition, the administrative law judge appropriately noted that it is likely the applicant will change employment during the remaining 35 years of his work life, and when he does his disfigurement will likely have an adverse vocational and economic impact. The applicant's scars are clearly visible and based on the testimony presented at the hearing the evidence indicates the applicant's work has required him to wear short-sleeved shirts throughout most of his work life.

The administrative law judge also appropriately found that because of the applicant's disfigurements some potential employers may even hesitate to hire the applicant under the belief that he is accident-prone. The applicant is only required to establish that he may occasion potential wage loss due to his disfigurement and not the higher standard contained in Wis. Stat. § 102.56(2), which applies only if the applicant had returned to employment with the employer at the time of his injury. The evidence indicates the applicant is currently working and earning a higher wage than he had at the time of his work injury. However, the administrative law judge noted the applicant is earning less than he could have at Oshkosh Truck if he had not been injured. Based upon a review and consideration of all the factors contained in Wis. Stat. § 102.56(1) the commission finds that the applicant is entitled to an award of $7,000.00 for disfigurement due to his surgical scars caused by his work injury.

cc:
Attorney John D. Neal
Attorney Michael C. Frohman

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