Wis.LIRC WC Decision: Schaalma, Joel - April 5, 2001 - ND � 5.18 - Schedule Injury - disabilities affecting dominant hand, 25% increase - � 102.54 does not incorporate partial disabilities not due to amputation or total losses, and does not incorporate � 102.55 (3) equating loss of a member with loss of its use

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

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 April 5, 2001
schaajo . wsd : 175 : 8 ND � 5.18

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The applicant asserts in his petition for commission review that the administrative law judge erred in determining that the applicant was not entitled to additional compensation for his work related disability pursuant to Wis. Stat. � 102.54. Wis. Stat. � 102.54 provides that if an injury to the applicant's dominant hand causes a disability specified in Wis. Stat. � � 102.52 (1) to (9), or amputation of more then two-thirds of the distal joint of a finger, the period for which indemnity is payable for that disability or amputation is increased by 25 percent. The applicant's states that Wis. Stat. � l02.54 should be interpreted so as to increase disability by 25 percent in event of injury to the dominant hand whether or not amputation occurs or total loss occurs. However, this statute specifically provides that indemnity will be increased by 25 percent only in the case of an amputation of more then two-thirds of the distal joint of a finger or disability specified in Wis. Stat. � � 102.52 (1) to (9).

The department's footnote to Wis. Stat. � 102.54 states that this provides an increase for injuries to the dominant hand that result in any amputation beyond two-thirds of a distal phalanx or 100 percent loss of use of any joint on the hand or arm. In this case the applicant suffered a crush injury with an amputation of a second through fifth digits on November 13, 1996, and underwent surgery to reattach the digits. The applicant's treating physician, Dr. Daley, assigned permanent partial disability ratings for loss of motion of the effected fingers and a permanent partial disability rating of the hand at the wrist for loss of strength, diminished dexterity and slight loss of sensation.

The commission noted in the case of Nelson v. Associated Milk Producers, commission decision dated September 30, 1998, that Wis. Stat. � � 102.52 (1) through (9) provides the weeks of compensation for a total loss at specified joints, and scheduled for less then a total loss at a joint are provided for under Wis. Stat. � 102.55. The commission found that only disability from a total loss whether by amputation or otherwise in the dominant arm, not simply any disability in the arm, is entitled to the 25 percent multiplier under Wis. Stat. � 102. 54. Had Wis. Stat. � 102.54 been meant to include losses or disability less then total at the specified joint the statute would include a cross reference to Wis. Stat. � 102.55 (3). The departments footnote is consistent with the statute.

The commission agrees with the administrative law judge that a plain reading of Wis. Stat. � 102.54 indicates that it does not incorporate partial disabilities not due to amputation or total losses, and it does not incorporate Wis. Stat. � 102.55 (3). The applicant submitted legislative records and legislative history to support his contention that he was entitled to the 25 percent increase under Wis. Stat. � 102.54. However, the commission agrees with the employer that the plain language of the statute is clear, and it is not necessary to refer to the legislative history, and Wis. Stat. � 102.54 does not apply to relative disabilities. Given the facts stipulated in the record, and given the fact that the applicant did not suffer disability specified in Wis. Stat. � � 102.52 (1) to (9) or amputation of more then two-thirds of the distal joint of the finger, the applicant is not entitled to 25 percent increase in disability for his work injury to his dominant hand pursuant to Wis. Stat. 102.54.

cc:
Attorney Douglas W. Plier
Attorney William R. Sachse, Jr.
Attorney Robert H. Zilske

Appealed to Circuit Court. Affirmed October 22, 2001. Appealed to Court of Appeals. Affirmed in unpublished per curiam decision May 23, 2002.

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