SID BALL, Applicant

NEENAH FOUNDRY CO, Employer

EMPLOYERS INSURANCE CO OF WAUSAU, 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 November 9, 2009
ballsid : 175 : 5 ND 5.36

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

The employer asserts in its petition for commission review the administrative law judge erred in determining that pursuant to the provisions of Wis. Stat. § 102.56(1), the applicant is entitled to the benefit of the lesser standard for determining disfigurement payments for potential wage loss, and established he would suffer a substantial wage loss should he not continue in his current employment amounting to a disfigurement award of 60 percent of his annual average earnings in the amount of $33,480. The employer contends the administrative law judge should have applied the standard in Wis. Stat. § 102.56(2), that if an employee who claims compensation under this section returns to work for the employer who employed the employer at the time of injury at the same or higher wage, the employee may not be compensated unless the employee shows that he or she probably had lost or will lose wages due to the disfigurement. The employer states that under this standard, the applicant did not establish he would suffer probable wage loss due to his disfigurement, and is not entitled to any award for his disfigurement, due to the work incident on December 29, 2006.

The employer contended at the hearing the applicant returned to work for the employer at a higher wage following his return to work from the work incident in 2006, and therefore Wis. Stat. § 102.56(2) should apply. The employer pointed to the fact the applicant's base rate increased in 2007, 2008 and 2009, following his return to work. However, the administrative law judge appropriately noted the applicant suffered diminution of actual wages earned in the years 2007 and 2008, and also for the first part of 2009, prior to the time of the hearing. The commission agrees with the administrative law judge that the appropriate determination of wage under Wis. Stat. § 102.56(2), is contained in Wis. Stat. § 102.11(1)(d), which must include all earnings. The evidence indicates the applicant earned a gross amount on January 1, 2006 through the end of the year, the amount of $64,491, in 2007 total wages of $59,788.34, and 2008 showed $57,380. The employer stipulated prior to the hearing, the applicant's first four wage payments for 2009 reflected a 25 percent payout, which was instituted company wide for all employees due to a downward trend in the economy. Given the fact the applicant returned to work for the employer and his wages, including all earnings pursuant to Wis. Stat. § 102.11(1)(d), were reduced in 2007, 2008 and in the beginning of 2009, the administrative law judge appropriately determined the provisions of Wis. Stat. § 102.56(1) should apply to the applicant.

In this case, the applicant suffered scarring due to steam burn injuries to both of his arms. The applicant presented photographs of his current scarring due to the burns. The photographs in the record showed discoloration on the inner right upper arm between the elbow and the wrist, and a much larger area of redness and discoloration on the inside of his left upper arm between his elbow and shoulder. The applicant testified that his coworkers have commented on his scarring. The applicant also testified that he wears short sleeve shirts to work, which would reveal his scarring.

The applicant is 55 years old and has worked for the employer since 1977. The applicant has a high school degree with no secondary education. The applicant testified that he would like to keep working for the employer until his retirement. However, the evidence indicates the employer has suffered some economic problems recently. Mr. Kufahl, the employer's manager of employee relations, indicated the employer has had two recent salary cutbacks; one in 2007 and one in 2008, and a total of 51 employees that were either terminated or cutback into the ranks, and one of the supervisors who was affected was in the applicant's department. Mr. Kufahl testified the applicant was able to survive both of the salary cutbacks because of his seniority.

The evidence does not indicate the applicant has an abundance of transferrable skills to obtain other work if he should lose his current job. The applicant's scarring on his right lower arm is noticeable below the short sleeve shirt, and would certainly be noticeable to his prospect employer. The applicant's scarring on the left arm, although higher on the upper arm and on the inside of the arm, is more dramatic and red in several portions, with discoloration, and would partly be revealed below any short sleeve shirt.

Given the current state of the economy and the evidence of the employer's financial situation, there is certainly the prospect the applicant could lose his job and be looking for work. The evidence indicates the applicant has established potential wage loss due to his disfigurement. The commission agrees with the administrative law judge that an appropriate award of 60 percent of annual earnings in the amount of $33,480. Given the current economic situation and the applicant's scarring due to his work injury, and given the applicant's lack of education and training, the applicant would suffer significant economic hardship if he should become unemployed.

cc: Attorney Tony Welhouse
Attorney Jessica Almazar

Appealed to circuit court.  Affirmed June 21, 2010.

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