MATHEW A CHRISTOPHERSEN, Applicant

FRITO LAY BELOIT, Employer

UNITED STATES FIDELITY
& GUARANTY CO, Insurer

The applicant submitted a petition for commission review alleging error in the administrative law judge's Findings and Order dated December 6, 2007. At issue is whether the applicant is entitled to a disfigurement award due to his work-related compensable injury on May 3, 2003.

The commission has carefully reviewed the entire record in this matter, and after consultation with the administrative law judge regarding the credibility and demeanor of witnesses, hereby affirms in part and modifies in part the Findings and Interlocutory Order of the administrative law judge. The commission makes the following:

Considering the applicant's age, education, training, previous work experience, previous earnings, likelihood of successful future suitable occupational change as a computer repair specialist working at home, and considering the applicant's visible scars and altered gait, the evidence establishes the applicant should be awarded the sum of $20,000.00 as compensation for his disfigurement.

Also, delete the first full paragraph on page 3 of the administrative law judge's Findings of Fact and substitute therefor:

The fee for applicant's attorney's fee is set at $4,000.00 with a current value of $3930.53, which reflects an interest credit of $69.47; after deducting attorney's fees, the balance to applicant is $16,000.00.

NOW, THEREFORE, this

Within 30 days from the date of the commission's order, the employer and its insurer shall pay to the applicant, Mathew Christophersen the sum of $5860.80; and in addition a monthly payment of $962.00 until the sum of $10,139.20 is paid; and to applicant's attorney, James Meier the sum of $3930.53.00. Jurisdiction is reserved on all potential issues of such findings, orders, and awards as may be warranted.

Dated and mailed September 18, 2008
christm . wmd : 175 : 8 5.36

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

The applicant asserts in his petition for commission review the administrative law judge erred in awarding him the amount of $10,000.00 as compensation for a disfigurement pursuant to Wis. Stat. § 102.56 related to his compensable work injury on May 3, 2003. The applicant contends in his petition for commission review he has approximately 28 years remaining in the workforce, and he sustained a severe work-related injury, which resulted in a significant limp due to the impairment of the injury, and a significant scarring situation on his leg. The commission agrees.

Following his work-related injury to his left leg on May 3, 2003, the applicant underwent aspiration for a seroma in his left leg several times, and subsequently developed cellulitis in the left lower extremity in May 2005. The applicant underwent a sclerosing in June 2005, subsequent treatment and surgeries, and has visible scars and discoloration to his left knee, thigh and lower leg. The applicant walks with a visible limp and a straight-leg defect in his left leg.

Pursuant to Wis. Stat. § 102.56 in determining the potential for wage loss and the sum awarded, the department shall take into account the age, education, training, previous experience of earnings of the employee, the employee's present occupation and earnings, and likelihood of future suitable occupational change. The applicant's severe limp meets the requirements of the statute for a disfigurement award. Graham v. Dane Co., Commission Decision dated January 12, 2006.

In our current case, the evidence indicates the applicant suffers from a severe limp due to his work-related left knee and lower leg injury, and would clearly be open to view in the normal course of his employment. A review of the photographs in the record indicates the applicant has severe discoloration and scarring in his left lower leg. The applicant testified that he often wore shorts in his previous employment, and that his scarring would be visible. The applicant will not be able to return to the type of factory and labor type positions, which he had held in the past.

The applicant is training to become a computer repair specialist, and has been unemployed due to his work injury for several years. He may have difficulty becoming employed even with his retraining program as a computer specialist, given his severe limp, as well as his lack of education and lack of employment history in the recent past.

The evidence indicates the applicant is 38 years of age and has worked as a laborer and factory worker for most of his life. The applicant was earning approximately $30,000.00 per year at the time of his work injury. The applicant testified that following completion of his computer repair training he will have to apply for work on a part-time basis with a computer business in order to get some experience prior to starting his own business. Given the applicant's relatively young age with approximately 28 years left in the labor market, and given his inability to return to his former work in labor type positions and factory work due to his work injury, and given the applicant's significant defect and limp, as well as significant scarring due to his work injury, the likelihood of future occupational change given his age, education, training and previous earnings experience, the commission finds that the applicant is entitled to $20,000.00 as compensation for his disfigurement.

The commission consulted with the administrative law judge concerning his assessment of the applicant's demeanor and testimony. The administrative law judge indicated that he found the applicant to be straight-forward and credible concerning his likelihood of future occupational change and the need to find employment, at least on a part-time basis to gain some experience in computer repair, given his total lack of prior experience in this area. The commission found nothing to warrant overturning the administrative law judge's credibility assessment.

cc: Attorney James A. Meier
Attorney Daniel Pedriana

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uploaded 2008/09/25