ANGELO TSIAMPAS, Applicant
BRENNTAG, Employer
XL SPECIALTY INSURANCE COMPANY, 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 makes the following:
The applicant was born in 1959. He began working for respondent Brenntag in 2005. Part of the applicant's duties was handling corrosive liquids. On September 20, 2010, the applicant was unloading corrosive liquids. When the unloading was finished, the applicant took off his protective suit and obtained paperwork for the tanker truck driver. When the applicant returned to the truck he noticed that the driver was attempting to drain out the hoses into a pail, without the use of any protective clothes or gloves. The applicant had his gloves, so he drained the hoses for the tanker truck driver. The chemicals splashed from the pail onto the applicant's left leg. The chemicals struck the applicant's left leg on the inside portion of the leg, several inches above the ankle. The applicant noticed a burning sensation. He rolled up his pants leg, which spread the chemical to several other spots between the knee and ankle. The applicant then went to the locker room and washed off his lower left leg. He reported chemical burns to the respondent. Silver safety cream was applied. The applicant was then taken to see Dr. Gina Buono at the company medical clinic. Because Dr. Buono did not have a burn kit, the applicant was then taken to the Froedtert Memorial hospital Emergency Room. He was treated there and released. The applicant then followed up with Dr. Thomas Schneider. Dr. Schneider treated the applicant with topical creams and bandages. The applicant was released to return to work two weeks after the injury. He was then terminated by the respondent. At the time of the hearing the applicant was not working for any employer. He claims that he is entitled to compensation for disfigurement, under Wis. Stat. § 102.56.
Wis. Stat. § 102.56 provides:
(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.(1)
The actual disfigurement includes a brown patch just above the applicant's left ankle and three nickel-sized brown spots between the ankle and knee. All of the spots are on the inside of the applicant's left leg. The applicant testified that in the past he generally wore pants and continues to do so. Since the applicant has always worked in an industrial setting, he has always worn pants while working. His disfigurement would not be observed in that kind of a work environment.
The applicant has worked in the chemical industry. It was common for people to change clothes before and after the work shift. In the future the applicant's left leg disfigurement may be viewed by some co-workers and supervisors in the locker room setting. In addition, it may be observed in pre-employment physicals. There is a potential that applicant's disfigurement may affect his future employment. The applicant had been looking for work without success since about October 13, 2010, until the September 20, 2011, hearing.
The applicant had a history, prior to the injury of working for 25 years in warehouse work. He was paid an average weekly wage of $874.23, for the employer and testified that the employer was a chemical plant and the work was physical and dangerous. Prior to that, the applicant had worked as a mixer for another employer for six years, dealing with paints and auto sealants. He earned $18 per hour there. Prior to that applicant worked at an employer that cooked and packaged foods. He earned between $12 and $17 per hour in that employment. The applicant was educated through the 11th grade and holds a GED, but had no schooling beyond that point. Thus, applicant is an older worker with a history of doing physical work. It is more challenging for the applicant to find work paying $21 per hour in view of his age, lack of education and lack of transferrable skills. A potential employer in the chemical industry, which is dangerous, may be less likely to hire a worker if it believes, based on a scar from a chemical burn, that the worker had been careless. Thus, the amount of $7,500.00 is awarded as full compensation for the applicant's disfigurement.
Respondents Brenntag and XL Specialty Insurance shall pay to Attorney Sean M. Spencer, $1,500 as fees and to applicant, Angelo Tsiampas, $6,000.00 as compensation for disfigurement. This shall be a final order regarding the issue of disfigurement. The department shall retain jurisdiction regarding all other issues.
The findings and order of the administrative law judge are modified and as modified are affirmed. Within twenty one days from date, respondents Brenntag and XL Specialty Insurance shall pay to Attorney Sean M. Spencer, the sum of One thousand five hundred dollars ($1,500.00) as fees and to the applicant, Angelo Tsiampas, the sum of Six thousand dollars ($6,000.00) as compensation for disfigurement.
Dated and mailed
April 30, 2012
tsiaman . wrr : 145 : 6 ND 6.37
BY THE COMMISSION:
/s/ Robert Glaser, Chairperson
/s/ Ann L. Crump, Commissioner
/s/ Laurie R. McCallum, Commissioner
Both parties submitted photographs documenting the applicant's scars. Because its modifications to the ALJ decision do not depend on witness credibility or demeanor, no credibility conference with the ALJ was held.
cc:
Attorney Roland Cafaro
Attorney Denise Greathouse
Appealed to circuit court. Affirmed December 14, 2012.
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