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

NANCY LEE, Applicant

HMONG AMERICAN SVCS CTR, Employer

FIREMANS FUND INS CO OF WI, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1997-055889

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 March 9, 2001
leena.wsd : 101 : 1   ND § 5.36

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The applicant was born in 1969. She suffered a crush-type injury while working for the employer as a machine operator on September 9, 1997. Her injury eventually required the surgical amputation of her left index finger at the PIP joint in August 1999. In the spring of 1998, after the injury but before her surgical amputation, the employer offered work as a janitor. She refused, and has since obtained higher paying work from another employer, US Controls. She now seeks compensation for disfigurement to her finger from the crush injury.

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:

" ¹⁷⁴ 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 employee returns to his or her time-of-injury-employer at least prior wage, the employee must show he or she 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" (or "probable wage loss" if that standard applies) and (d) if so, how much should be awarded?

As noted above, the ALJ found that the disfigurement from the applicant's surgical amputation occasioned potential wage loss. He awarded $10,000 for what he described as a distasteful disfigurement. The employer and its insurer (collectively, the respondent) appeal, claiming that it offered her work, so the "probable wage loss" standard should apply. The respondent also contends that the ALJ failed to consider: (A) the increase in wages at US Controls, which demonstrates a lessened potential or probability for wage loss; (B) the applicant's plans to pursue a "public" job "as a nurse," which demonstrate that her embarrassment and disfigurement really are not that bad; and (C) that the applicant found her second job easily and there is no evidence any coworkers found the disfigurement "disturbing."

The first two questions of the four-part analysis set out above are clearly answered in the applicant's favor. The applicant's amputated finger, which the ALJ describes as swollen and discolored, is an exposed disfigurement. The next question is whether it occasions potential or probable wage loss. The first part of that question is to determine whether to apply the "potential wage loss" or "probable wage loss" standard.

The applicant did not return to work with her time-of-injury employer at the same or higher wage than she was earning when injured. While the employer offered the applicant work after her injury, job offers are not mentioned in Wis. Stat. § 102.56(2). The commission notes that the legislature has expressly included language dealing with refused job offers elsewhere in the statutes where it limits workers compensation based on a return to work. See for example, Wis. Stat. § 102.44(6)(g).

The commission also notes that the offer here was made before the applicant underwent the amputation surgery that is the basis for her disfigurement claim. Moreover, the applicant at the time was on work restrictions limiting her lifting to 25 pounds, and testified her physical condition could not tolerate the work as a janitor. The record also suggests the janitor work may have paid less than the applicant earned as a machine worker. The applicant denied she was ever actually offered work other than as a janitor, and the respondent has not established other work was offered to her. Under all of these circumstances, the ALJ properly applied the "potential wage loss" standard.

The next question, then, is whether the disfigurement occasions potential wage loss. The commission conclude that swollen, discolored site of a surgical amputation of an index finger will attract the notice of potential employers. The disfigurement could lead to the lost opportunities for work in customer service, retail sales, or similar positions. The commission must also conclude that some employers, particularly those in manufacturing sector where the applicant was been working in the recent past, will assume the disfigurement was the result of an industrial injury, which will negatively affect her employment prospects. (1) On this record, the ALJ properly concluded that the applicant is so permanently disfigured as to occasion potential wage loss.

The last question is the amount of "just compensation." The ALJ, who has actually seen the disfigurement, awarded $10,000, which of course is less than the maximum possible award of $15,000. While the commission appreciates that each case must be considered individually based on the disfigurement involved and the factors (age, education, training, and previous experience and earnings) set out in Wis. Stat. § 102.56(1), the award here certainly is within the range seen in disfigurement cases. (2) Moreover, the applicant is a relatively young woman, who presumably has many years of employment ahead of her, and whose employment to the date of the hearing has been primarily in manufacturing work. The award of $10,000-for a young worker with a disfigurement that employers are likely to speculate correctly is the result of an occupational accident-is just.

The commission cannot conclude otherwise, despite the employer's arguments in favor of a lowered award. The applicant's relative ease in finding a higher-paying job militates against giving the maximum award, but the ALJ did not give the maximum. The respondent also argues that the applicant herself does not consider the amputation site to be badly disfiguring as she is considering a "public job" as a nurse. However, the commission notes that the applicant testified she is thinking about going back to school to train as a nursing assistant, not that she intends to work as nurse (transcript, page 9). Further, given the obvious disfigurement and its fairly evident relationship to employment in this case, the commission declines to lower a less-than-maximum disfigurement award because the applicant is not so acutely embarrassed by her disfigurement as to limit her possible vocational choices by ruling out all work where she might have public contact.

cc:
Attorney Angela M. Van Boxtel
Attorney Michael D. Stotler

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Footnotes:

(1)( Back ) See: Kurt Frederick Thompson v. Thompson Roofing, WC claim no. 85003642 (LIRC, February 28, 1997).

(2)( Back ) In Evan Bros. v. LIRC, 113 Wis. 2d 221 (Ct. App., 1983), a 17-year old worker who had a raised pinkish scar on the right arm, a scar visible with an open collar shirt, and further scarring on his chest visible only when he worked shirtless. The worker in Evans Bros. was given the maximum benefit (one year's wage) for potential wage loss. Commission decisions on this point include: 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, a factory worker/laborer with "incredibly ugly" arm scar that could be covered by sleeves ($10,000 for probable wage loss); Kurt Frederick Thompson v. Thompson Roofing, WC claim no. 85003642 (LIRC, February 28, 1997), roofing estimator with leg scars ($2,500 for potential wage loss); Schaalma v. BR Metal Tech, Inc., WC claim no. 1996060887 (LIRC, July 12, 1999), factory worker with scarred and shortened fingers on the left hand after the fingers were surgically reattached following a near amputation (LIRC, $7,500 awarded for probable wage loss); Alsteen v. US Stick Corporation, WC Claim no. 91019663 (LIRC, March 27, 1997), crater-like arm scar on factory worker whose scar attracted comment by coworkers ($6,240 or half annual earnings awarded for potential wage loss); Morales v. Emmber Foods, WC claim no. 1996031347 (LIRC, February 10, 2000) food process worker whose hand was amputated, leaving 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 (maximum award for probable wage loss); Villa v. Evans Products, Inc., WC claim No. 1996024205 (LIRC, December 12, 1999), factory worker with 14 cm. facial scar described as horizontal, from the level of the ear along the jaw line to the chin (maximum award for probable wage loss).

uploaded 2001/03/13