Wis.LIRC WC Decision: Morales - February 10, 2000 - � 5.36 - Disfigurement - claimant returning to work for the employer at same or higher wage must show probable wage loss due to disfigurement - showing made - return to work was to work outside physical restrictions - physical restrictions in combination with disfigurement

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

AMBROCIO MORALES, Applicant

EMMBER FOODS INC, Employer

CONNECTICUT INDEMNITY COMPANY, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1996031347

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 February 10, 2000
moralam.wsd : 175 : 3 � 5.36

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The employer asserts in its petition for commission review that the administrative law judge erred in determining that the applicant was entitled to the maximum provided by law in the nature of his average annual earnings as compensation for disfigurement related to his work injury on May 20, 1996. The employer contends that the administrative law judge applied the wrong standard in this case. The employer contends that the administrative law judge misstated its position in stating that the applicant's return to work as an operator of a meat grinder machine and subsequent termination in early 1997 disqualified him from compensation. Rather, the employer asserts that its position is that the administrative law judge must assume that the applicant continued in his employment with the employer at the same or higher wage than that at the time of the injury because the applicant voluntarily terminated his employment. The employer states that the administrative law judge neglected to do so and instead based her decision on the applicant's alleged trial employment and exhaustive job search which is an incorrect legal standard.

The employer goes on to state that the commission must review this case using the probability standard of Wis. Stat. � 102.56 (2). The commission agrees that the proper standard to be applied in this case is Wis. Stat. � 102.56 (2), which provides that when an employe claims compensation for disfigurement and returns to work for the employer, who employed the employe at the time of the injury, at the same or higher wage, the employe may not be compensated unless the employe shows he or she probably have lost or will lose wages due to his disfigurement. However, the commission does not agree that the administrative law judge applied the wrong standard in this case. The administrative law judge found that the applicant has lost and will lose significant wages due to his permanent disfigurement.

The applicant sustained a compensable traumatic injury while working for employer on May 20, 1996 while cleaning a meat grinding machine when he had both of his arms inside the machine and the supervisor turned the machine on resulting in an avulsion fracture of his distal left forearm and partial amputation of his right hand, which could not be saved during emergency surgery. As a result the applicant's hand was amputated and he has a right arm stump, ending approximately two to three inches above his prior wrist line with a skin colored surgical scar across its face and extending about two inches up the side of his inner arm, and a small slightly elevated skin colored bump at the end of the scar on the outer side of his arm. The applicant testified that the temporary discoloration of the stump occurs with the use of his prosthetic metal hook which is attached to a hard, beige colored plastic shell fit to the elbow, held secure by elastic straps secured around his torso.

In this case the applicant returned to work for the employer at the same or higher wage on July 12, 1996 and worked until January 1997. The applicant returned to work with the employer with a restriction of left hand work only while using his right hand with a prosthetic devise as tolerated. The applicant testified that he returned to work on the formulator machine again which was involved in his right hand injury, and used his left hand to operate the buttons, but the machine maintained two lines of meat and there were two grinders. The applicant testified that he would have to use his right hand and specifically he would use his right hand to clear the grinder using a shovel to clear the grinder apparatus. The applicant testified that the meat was very heavy and he had to use a lot of force to push the shovel which forced his prosthetic device to one side causing it to hurt. The applicant testified that he was having problems with his right arm and wrist due to his work for the employer, but he did not inform the employer because there was no one there to interpret for him.

The evidence indicates that the applicant was born in Mexico and does not speak English and was 41 years old at the time of his injury in May 1996, and that he had completed a sixth grade education in Mexico. The applicant testified that he had worked in the past as a welder, chauffeur and tractor operator and in food markets until he came to the United States and worked in the produce fields in California. The applicant testified that following his termination with the employer he attempted to find work with 30 to 40 jobs but was not hired, and he could not find work for a one handed man. The applicant testified that he could not do his former work as a machine operator or butcher or tractor operator with his restrictions, and he applied for whatever type of work there was that he could possibly do. The applicant testified that people would stare at his right arm and prosthetic devise and that he felt that it was gross looking and that people would stare at him on the street. The applicant testified that he went to DVR for assistance and they helped him by placing him in work at a vegetable company where he is working fixing boxes and putting boxes onto pallets. The applicant testified that he has problems with his current job due to the fact that the boxes weigh over 30 pounds and he must use his prosthetic device in order to lift, and he does not have much strength in the right arm and he has physical problems at work. The applicant testified that he must continue to do the current work even though it causes him physical problems because of his need to support his family, and that if he continues to work he will have problems with the amputation sight.

The commission consulted with the administrative law judge concerning her assessment of the witnesses' demeanor and testimony. The administrative law judge indicated that she found the applicant to be very credible and that the problems he described in performing his work for the employer upon his return following the work injury were real and that his testimony of his ongoing pain and restrictions while working at his current job were also credible.

Upon review, the commission has found nothing to warrant overturning the administrative law judge's credibility determination. The commission agrees with the administrative law judge that it appears that the employer had the applicant return to work which were outside his restrictions. The applicant testified that he would have to use both hands to clear the grinder using a shovel, and that the meat was very heavy and he had to use a lot of force to push the shovel which forced his prosthetic devise to one side causing it to hurt. Dr. Daley had released the applicant to return for left handed work with use of a prosthetic as allowed by a therapist with no moving machinery, however the employer put the applicant on two handed work. The commission agrees with the administrative law judge that the applicant's job with the employer upon his return to work following his work injury, regardless of the reason for termination, does not disqualify him from compensation for disfigurement. The commission finds that the applicant has demonstrated a probable wage loss due to his disfigurement caused by his work injury in May 1996. The applicant is a 41 year old man with little education and does not speak English and he has worked only at lower level type work. The applicant testified that he has worked as a welder, chauffeur and tractor operator which he can no longer perform due to his work injury, and that his only other employment in the United States was a butcher which he can no longer perform with one arm.

The applicant credibly testified that he had made an extensive work search but was unable to find work until he applied for assistance with DVR. The applicant testified that his current work causes him problems lifting boxes and physical problems due to the pain in his right arm. In addition the work that the applicant performed for the employer upon his return following his work injury was outside his restrictions and also caused him problems with his prosthetic devise. Given the applicant's credible testimony of his pain and restrictions due to his prosthetic devise as well as his extensive job search and his current work which causes him problems the commission finds that the applicant probably has lost or will lose wages due to his disfigurement. The commission finds that the applicant is entitled to compensation in the amount of his average annual earnings of $15,080.

cc: ATTORNEY ISRAEL RAMON
SHNEIDMAN MYERS DOWLING BLUMENFIELD EHLKE HAWKS & DOMER

ATTORNEY CHARLES M SOULE
CASTAGNA EVEN CAFARO & SOULE

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