STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

STEVEN HOFFMAN, Applicant

DE LONG CO INC, Employer

FARMLAND MUTUAL INS CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 2005-024167


In December 2006, the applicant filed an application for hearing seeking compensation for disfigurement from an injury on June 28, 2005. An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development heard the matter on May 15, 2007. Prior to the hearing, the employer and its insurer (collectively, the respondent) conceded jurisdictional facts, the maximum average weekly wage for disfigurement purposes, and that the applicant suffered an injury to three of his fingers arising out of his employment with the employer and while performing services growing out of and ancillary to that employment.

The ALJ issued his findings and order on June 28, 2007. The applicant filed a timely petition for review.

The commission has considered the petition and the positions of the parties, reviewed the evidence submitted to the ALJ, and consulted with the presiding ALJ concerning witness credibility and demeanor. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant was born on September 3, 1985, making him not yet 20 on June 28, 2005, when parts of 3 fingers of his left hand were amputated after they became caught in a rope-pulley system at work. His left hand is shown in an exhibit A. The exhibit appears to shows partial amputations to the left index, middle, and ring fingers. The commission conferred with the presiding ALJ, who verified that the exhibit accurately depicted the applicant's hand.1(1)

The applicant graduated from high school, but has no post-secondary training or education. After he finished healing from the work injury, the applicant returned to work for the named employer, but in a different job where his wage was the same. He left his employment with the named employer voluntarily a few months later to try construction work. The applicant then worked for a home builder, Imperial Builders, but had to leave the job because he could not hold tools. He subsequently got a job in a factory where his father is a supervisor and where he expects to continue working. He makes $11.60 per hour in this job.

People notice the applicant's fingers, and ask how the amputations happened. Shortly before the hearing, a child asked his parents about the applicant's hand. When the applicant sought the construction job with Imperial Builders--which he in fact obtained--the person interviewing him initially questioned the applicant's ability to do the job after noting the amputations.

Disfigurement is compensable under Wis. Stat. § 102.56. The statute provides:

"102.56 Disfigurement. (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 as defined in s. 102.11. In determining the potential for wage loss and the sum awarded, the department shall take into account the 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. Consideration for disfigurement allowance is confined to those areas of the body that are exposed in the normal course of employment. The department shall also take into account the appearance of the disfigurement, its location, and the likelihood of its exposure in occupations for which the employee is suited.

"(2) Notwithstanding sub. (1), if an employee who claims compensation under this section returns to work for the employer who employed the employee at the time of the injury at the same or a higher wage, the employee may not be compensated unless the employee shows that he or she probably has lost or will lose wages due to the disfigurement."

The department's accompanying interpretative footnote to Wis. Stat. § 102.56 (found in DWD's Workers Compensation Act of Wisconsin with Amendments to December 2004, WKC-1-P (R.12/2004) provides:

"199 This amendment provides that if an injured employee returns to work for that employer for whom he or she worked at the time of the injury without any wage loss, then the employee is not entitled to compensation for disfigurement. However, the employee may show that he or she has or will sustain a wage loss because the disfigurement has impaired his or her ability to obtain other employment. The standard of proof at this level is 'probable' rather than 'potential'."

Wisconsin Stat. § 102.56 thus allows "an employee who is so permanently disfigured as to occasion potential wage loss" to recover just compensation not exceeding his average annual earnings. However, if an employee returns to his or her time-of-injury-employer at least at his or her prior wage, the employee must show he or she probably has lost or will lose wages due to disfigurement under Wis. Stat. § 102.56(2). Because the worker returned to the named employer, and later left that employment voluntarily, he must show the disfigurement occasions probable wage loss. The commission concludes that the applicant made this showing, and notes that the respondent did not appeal the ALJ's finding that the applicant's disfigurement occasions probable wage loss.

The issue on appeal is the appropriate amount of the disfigurement award. As noted above, the applicant was not yet 20 years old when he was injured. As noted above, the respondent conceded the maximum average weekly wage for disfigurement purposes.(2) Under Wis. Stat. § 102.56(1), the applicant's award for disfigurement may not exceed $53,325, the figure the ALJ found to be his average annual wages based on the maximum average weekly wage.(3)

The commission is satisfied that the facts in this case support an award at the statutory maximum. The applicant's disfigurement is not easily hidden from view, prompting people to ask about it. At least one employer commented on the amputations and its effect on the applicant's ability to do his job. The applicant is a young man, who would normally be expected to be in the job market--where his disfigurement will be noticed--more often than an older worker with an established career. Given his educational level, he is more likely to seek jobs involving physical labor where prospective employers, like the interviewer for Imperial Builders, will question his ability to perform labor based on his appearance. While the applicant has been able to obtain work since recovering from his injury, his disfigurement will negatively affect his ability to obtain suitable employment now and for the rest of his vocational life.

The commission acknowledges the employer's citations to Schaalma v. BR Metal Tech, Inc., WC claim no. 1996060887 (LIRC, July 12, 1999) (where a 25-year old factory worker left with scarred and shortened fingers on the left hand after the fingers were surgically reattached following a near amputation received a $7,500 disfigurement award); Aaron Sachse v. Rhodes Intl. Inc., WC claim no. 2003-045492 (LIRC, January 20, 2006) (where a 23-year old worker who lost his right middle finger at the distal joint received a $25,000 disfigurement award) and Jill Polglaze v. Fleming Companies Inc., WC claim no. 1989034689 (LIRC, November 19, 2001), (where a 21-year old worker with a partially amputated left thumb received an $8,000 disfigurement award), as well as Nancy Lee v. Hmong American Svcs Ctr, WC claim no. 1997-055889 (LIRC, March 9, 2001) (where a relatively young worker whose left index finger was amputated at the proximal joint received a $10,000 disfigurement award.) However, the loss of parts of three fingers is far more noticeable--with a concomitantly greater vocational effect--than losing part of one finger or having partially amputated fingers surgically reattached.

The applicant is therefore entitled to an award for disfigurement in the amount of $53,325. His attorney has agreed not to take a fee on the first $18,000 of the disfigurement award. Consequently, the fee is set at 20 percent of $35,325, ($53,325 minus $18,000), which yields a future value (before interest credit) fee of $7,065. Deducting the future value of the fee from the total awarded in disfigurement leaves the applicant the amount $46,260.

The respondent is still paying compensation for permanent partial disability for the finger amputations in the amount of 170 weeks at the statutory maximum rate of $242 per week, for a total of $41,140. As of May 12, 2008, 139 weeks have accrued, leaving 41 weeks of permanent partial disability unaccrued. When the permanent partial disability award has fully accrued, the employer shall start paying compensation for disfigurement at the monthly rate for permanent partial disability, or $1,048.67 per month, until the additional sum of $46,260 has been paid for disfigurement.(4)

As set out above, the future value of the attorney fee is $7,065. However, the fee will not begin to accrue until the remaining 41 weeks of permanent partial disability for the finger amputations and 74.38 weeks(5) for the first $18,000 of the disfigurement award have been paid. The attorney fee is thus subject to a deduction of an interest credit of $1,501.98 for advancement payment, leaving a present value fee now due the applicant's attorney of $5,563.02.

NOW, THEREFORE, the Labor and Industry Review Commission makes this

ORDER

The findings and order of the administrative law judge are modified to conform to the foregoing and, as modified, are affirmed in part and reversed in part.

Within 30 days, the employer and its insurer shall pay the applicant's attorney, James A. Meier, Five thousand five hundred sixty-three dollars and two cents ($5,563.02) in attorney fees.

Immediately upon the final payment of permanent partial disability for the applicant's finger amputations, the employer and its insurer shall begin paying the applicant compensation for disfigurement at the monthly rate of One thousand forty-eight dollars and sixty-seven cents ($1,048.67) until the additional amount of $46,260 has been paid in compensation for disfigurement under Wis. Stat. § 102.56.

This order is final only with respect to the applicant's entitlement to compensation to disfigurement under Wis. Stat. § 102.56, and does not preclude any other claims he may assert under the Worker's Compensation Act.

Dated and mailed April 29, 2008
hoffmas . wrr : 101 : 1 - ND § 5.36

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

 

cc: Attorney James A. Meier
Attorney Amanda Kaiser


 

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Footnotes:

(1)( Back ) The ALJ also stated that he found the applicant to be a credible witness. See Transamerica Ins. Co. v. ILHR Department, 54 Wis. 2d 272, 283-84 (1972).

(2)( Back ) See Wis. Stat. § 102.11 (1)(g). See also: Evan Bros. v. LIRC, 113 Wis. 2d 221, 226-28 (Ct. App. 1983).

(3)( Back ) This is 50 times $1,066.50, the statutory maximum weekly wage for permanent total disability from an injury suffered in 2005. See Wis. Stat. § 102.11 (1)(intro.) and (2).

(4)( Back ) As to the position of the Worker's Compensation Division and this commission that the disfigurement award begins to accrue at the permanent partial disability rate after a previously-awarded or conceded permanent partial disability award is paid out, see William Larsen v. Larsen Laboratories, WC claim no. 1996-021617 (LIRC, November 10, 2004).

(5)( Back ) This is $18,000 divided by $242. The commission's methodology in determining the interest credit on attorney fees for disfigurement awards in cases involving unaccrued "straight" PPD is also discussed in William Larsen v. Larsen Laboratories, WC claim no. 1996-021617 (LIRC, November 10, 2004).

 


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