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

JOEL SCHAALMA, Applicant

B R METAL TECH INC, Employer

WEST BEND MUTUAL INS CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1996060887

The applicant submitted a petition for commission review alleging error in the administrative law judge's Findings and Interlocutory Order issued in this matter on April 21, 1999. Respondents submitted an answer to the petition. At issue is a claim for disfigurement arising out of the conceded work injury of November 13, 1996.

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 the witness, hereby modifies her Findings and Interlocutory Order as indicated below. The commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The following five paragraphs are the first five paragraphs of the administrative law judge's decision, and are adopted by the commission.

The applicant worked for the respondent as a brake press operator. On November 13, 1996, the applicant was injured while operating the brake press. Each of the four fingers on his left hand was nearly amputated. He returned to work for the respondent after his injury at the same wage as he had been earning on the day of his injury. His last day of work was September 17, 1997.

The applicant contended that he suffered a disfigurement because of this injury. Wis. Stat. § 102.56(1), provides that if an employe is so permanently disfigured as to occasion potential wage loss, the department may allow such sum as it deems just compensation for the disfigurement, not to exceed the employe's average annual earnings. The carrier conceded that the maximum benefit available to the applicant for disfigurement is $37,050. In determining the potential for wage loss, the department shall take into account the age, education, training, and previous experience and earnings of the employe, as well as the employe's present occupation and earnings and likelihood of future occupational change. Consideration for disfigurement is confined to those areas of the body 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 employe is suited.

The respondent contended the applicant did not have a disfigurement because he was returned to work after his injury at the same wage as he had been earning on the day of injury. Wis. Stat. § 102.56(2) provides that if an employe returns to work for the employer who employed the employe at the time of injury at the same or a higher wage, the employe must show that he probably has lost or will lose wages due to the disfigurement.

The respondent's reliance on Wis. Stat. § 102.56(2) was misplaced because the respondent fired the applicant from his job. Even if he had not been fired from his job and had continued to work for the respondent, the applicant still had a claim for disfigurement if he could show that he probably would lose wages due to his disfigurement. In any event, his claim properly fit under the provisions of Wis. Stat. § 102.56(1).

The applicant's contention that he suffered a disfigurement must be sustained but not for the reasons he gave. The applicant was age 25 on the day of his injury. He graduated high school in 1989. He did not have any post-secondary education. He served in the U.S. Marine Corps for four years and was honorably discharged. Since then his work history has been as a factory laborer. The applicant has scarring on each of his fingers on his left hand. He also has a scar along the volar aspect of his wrist from the surgery done to reattach his fingers. His fingers on the left hand are markedly shorter as compared to the right.

The following two paragraphs constitute the modified Findings made by the commission.

The applicant is permanently disfigured and the appearance of his hand is unpleasant and readily noticeable. It is visible during the normal course of employment and would be visible to prospective employers during the process of applying for a job. The applicant credibly testified that he believed the disfigurement already negatively affected his applications for employment with two potential employers. While his beliefs to this effect cannot be objectively verified, given the nature of his disfigurement, it is likely that such disfigurement did impact on these employment decisions, and most probably will have an impact on his future job applications. The applicant is young and has a long work life ahead of him. He most probably will face the job application process on numerous occasions. Considering the applicant's disfigurement and all the factors detailed in Wis. Stat. § 102.56, the commission finds that a disfigurement award of $7,500 is appropriate. A 20 percent attorney's fee will be subtracted from the award.

This decision is limited to the disfigurement issue, and since there are potential, additional issues related to the 1996 work injury, this order will be left interlocutory.

NOW, THEREFORE, this

INTERLOCUTORY ORDER

The Findings and Interlocutory Order of the administrative law judge are modified to conform with the foregoing, and as modified are affirmed. Within thirty days from this date, respondents shall pay to the applicant the amount of Six thousand dollars ($6,000); and to applicant's attorney, Douglas Plier, fees in the amount of One thousand five hundred dollars ($1,500). Of course, previous payments which respondents may have made in compliance with the administrative law judge's decision would be subtracted from the above award and attorney fee.

Jurisdiction is reserved for such further findings and orders as may be warranted.

Dated and mailed July 12, 1999
schallj.wrr : 185 : 5 ND § 5.36

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission consulted with the administrative law judge and learned that she found the applicant to have been a credible witness. The commission found a larger disfigurement award based on the extent and location of the applicant's scarring, and how the scarring would potentially affect wage loss based on the factors set forth in Wis. Stat. § 102.56. In the applicant's case, the commission found his age and the likelihood of future suitable occupational change to be particularly strong factors supporting the larger award of $7,500.

cc: ATTORNEY DOUGLAS W PLIER

ATTORNEY WILLIAM R SACHSE JR
PETERSON JOHNSON & MURRAY SC

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