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

JOSE VILLA, Applicant

EVANS PRODUCTS CO, Employer

TRANSPORTATION INSURANCE CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1996024205

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.

ORDER

The findings and order of the administrative law judge are affirmed.

Dated and mailed December 29, 1999
villajo.wsd : 101 : 5 ND § 5.36

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

1. Facts and law.

The applicant, who was born in 1967, has worked for the employer since 1988. He is a grinder, and grinds metal parts for tractors and caterpillars. He is subject to periodic lay-offs, and has been off work for periods in excess of one year, though in recent years the layoffs have only been a few weeks in duration.

The applicant was seriously injured in an industrial accident in April 1996 when his grinding wheel came off its shaft and struck him in the left side of the face. He lost consciousness at the time of the injury and remembers nothing beyond awaking at the hospital. The injury caused comminuted fractures to the entire mandible, (1) with bone loss and the loss of teeth; and extensive laceration on the face; and a left facial nerve transection.

After recovering from his injury, the applicant returned to work for his employer in October 1996. He then worked subject to occasional one or two week layoffs until June 14, 1999, when he was again laid off. At the time of the July 8, 1999 hearing the applicant was still on lay-off status. The employer's manager testified at the hearing that he did not know how long the applicant would be off work.

At issue here is the facial laceration, and specifically, the scar it caused. The scar is the basis for a claim of disfigurement. The scar is described as horizontal, from the level of the ear along the jaw line to the chin. It is 14 cm (over five inches) long. Regarding the scar itself, the applicant testified that at work he now referred to as "Villa, the one with the scar."

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

"102.56 Disfigurement. (1) If an employe 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 employe'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 employe, the employe'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 employe is suited.

"(2) Notwithstanding sub. (1), if an employe who claims compensation under this section returns to work for the employer who employed the employe at the time of the injury at the same or a higher wage, the employe may not be compensated unless the employe 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 1997 Amendments, KC-1-P(R.2/99) provides:

"172 This amendment provides that if an injured employe returns to work for that employer for whom he or she worked at the time of the injury without any wage loss, then the employe is not entitled to compensation for disfigurement. However, the employe 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'."

In summary, Wis. Stat. § 102.56, allows "an employe who is so permanently disfigured as to occasion potential wage loss" to recover just compensation not exceeding his average annual earnings. However, if an employe returns to his time-of-injury-employer he must show he probably has lost or will lose wages due to disfigurement under Wis. Stat. § 102.56 (2). Beyond that, the statute recognizes essentially four issues in disfigurement cases: (a) is there a disfigurement, (b) is the disfigurement exposed, (c) does it "occasion potential wage loss," and (d) if so, how much should be awarded?

2. Discussion.

a. "Probable" wage loss or "potential" wage loss

The first issue for the commission in this case is whether the "probable wage loss" standard under Wis. Stat. § 102.56 (2), applies to the applicant's disfigurement claim, rather than the "potential wage loss" standard in Wis. Stat. § 102.56 (1). The commission has previously held that two weeks of employment before a disfigured employe reached a healing plateau was not sufficient re-employment to trigger the "probable" standard under Wis. Stat. § 102.56(2). Alsteen v. US Stick Corporation, WC Claim no. 91019663 (LIRC, March 27, 1997). Here, however, the applicant had been re-employed for over two and half years since the date of injury subject to same periodic layoffs he was subject to before the injury.

On the other hand, the applicant was laid off at the time of the hearing, and the employer's own witness could not say when he would be returned to work. (2) The ALJ thus concluded that the applicant was no longer working for the employer, and thus was not "return[ed] to work for the employer." The ALJ accordingly applied the potential wage loss standard under Wis. Stat. § 102.56(1). Given the applicant's status in indefinite layoff at the time of the hearing, the commission agrees with the ALJ that Wis. Stat. § 102.56(1) applies and requires only a "potential" wage loss.

According to a post-hearing submission by the employer, the applicant returned to work on July 14, 1999. While the applicant apparently does not deny the underlying accuracy of the post-hearing submission, he vigorously challenges the employer's attempt to supplement the record. Under other circumstances, the employer's offer of proof that the applicant has returned to work might trigger a remand for further hearing.

However, the commission declines to remand this case for further hearing because, even if Wis. Stat. § 102.56(2) were applied based upon the applicant's return to work, the applicant has shown probable wage loss. He has an unquestionably bad scar on his face from the injury. The record establishes that the applicant is in employment where layoffs are common, and layoffs of a year or more are not unknown. The applicant is only 32; it is probable that he will need to find re-employment, due to a layoff or otherwise, in the remaining three decades or more of his working years.

The employer discounts the potential for or probability of wage loss, even if the applicant were to look for work elsewhere. It notes that the applicant's job history is largely factory employment, where appearance is not as important as if were he in a service industry.

However, the effect of a scar is not limited to those employers worried about the sensitivities of customers. The commission has previously recognized the so-called "klutz theory" which holds that a potential employer may be hesitant to hire a scarred worker under the belief that he is accident-prone. See Kurt Frederick Thompson v. Thompson Roofing, WC claim no. 85003642 (February 28, 1997) and the cases cited therein. With a scar to the face, a potential employer could also assume the applicant was in a fight, and a possible security risk. It is reasonable to infer that at least some potential employers will be aware the scar was from an unfortunate work accident which was not the applicant's fault, and base an adverse employment decision on the scar. Further, the applicant testified he is already identified at the employer's workplace as "the one with the scar."

In short, even assuming the higher "probable wage loss" standard applies in this case, the applicant met that standard.

b. Amount of award.

This leaves the remainder of the four-part analysis under the statute. Clearly, the first two requirements, (a) disfigurement that is (b) exposed, are met. The third question, whether the disfigurement occasions probable (or potential) wage loss is addressed above. The final question is the extent of the award.

The commission believes the ALJ's award of twenty thousand dollars is reasonable under the facts of the case. The ALJ found the applicant's scar to be unpleasant and readily noticeable, and given the record before it, the commission is in no position to disagree with that finding. Further, age is one of the factors specifically listed in the statute to be considered in determining the potential for wage loss and the sum awarded. The applicant was 27 when injured, and not yet 32 at the time of the hearing. He is a relatively young worker by any standard. While the applicant's work experience and post-high school training in mechanics vocational factors generally, the commission cannot conclude that they lessen the impact of the disfiguring facial scar in this case.

Nor is the award out of line with awards in other cases. Youth was the primary factor for a $14,000 award in Evans Bros. v. LIRC, 113 Wis. 2d 221, 226 (Ct. App., 1983), where a 17 year old was left with "not dramatically disfiguring" scars that were exposed only in the summer when the applicant worked shirtless. In Larry Blaise v. Berliner & Marx, WC Claim no. 900024198 (LIRC, October 6, 1993), affirmed sub nom. Berliner Marx v. LIRC and Larry Blaise, Marathon County circuit court case no. 93-CV-675 (June 21, 1994), the commission affirmed an award of $10,000 where the evidence strongly implied that the worker's "incredibly ugly" scar on his arm cost him at least two jobs. Finally, the commission cannot overlook the observation of the court of appeals that Wis. Stat. § 102.56, "affords the department substantial leeway in calculating a sum to compensate workers who most likely will never know the full extent to which their disfigurements reduced their wages." Eaton Corp., v. LIRC, 122 Wis. 2d 704, 707 (Ct. App., 1985).

cc: ATTORNEY LINDA D KIEMELE
BORGELT POWELL PETERSON & FRAUEN SC

ATTORNEY ISRAEL RAMON
SHNEIDMAN MYERS DOWLING BLUMENFIELD EHLKE HAWKS & DOMER

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Footnotes:

(1)( Back ) In laymen's terms, this is a shattered jawbone.

(2)( Back ) In an analogous situation in unemployment insurance cases, an indefinite lay terminates the employment relationship. A.O. Smith Corp. v. ILHR Department, 88 Wis. 2d 292 (1979).