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

LINDA J HYMAN, Applicant

SAUK COUNTY HEALTH CARE, Employer

WAUSAU INSURANCE COMPANY, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1998-019033

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 May 4, 2001
hymanli . wsd : 175 : 8  ND § 5.36

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The employer asserts in his petition for commission review that the administrative law judge erred in determining that the applicant was entitled to $2500.00 for her disfigurement due to her work injury pursuant to Wis. Stat. § 102.56. The employer contends that the applicant has failed to demonstrate a potential wage loss in this case. The employer states that all the applicant has demonstrated is that she has a perceptible mark on her arm, that she is not self-conscious about it, that apparently no one else is uncomfortable with it, and it has resulted in no perceptible impact on her ability to earn a living.

Pursuant to Wis. Stat. § 102.56(1) if an employee is so permanently disfigured as to occasion potential wage loss, the department may allow such sum as it deems just as compensation, therefore, not exceeding the employee's average annual earnings. In determining the potential for wage loss the department shall take into account the age, education, training and previous experience and earnings of the employee, the employee'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, and the department shall also take into account the appearance of the disfigurement, its location and the likelihood of its exposure and occupations for which the employee is suited.

Subsequent to her work injury, the applicant cannot return to her former work as a nursing assistant with her restrictions, and she has had two jobs since leaving work for the employer. The applicant worked as an ordertaker for a time and is currently working for a casino as a floor person. The applicant testified that she loads slot machines, hands out jackpots to customers, performs minor repairs, carries money bags and has a great deal of customer contact. The applicant testified that when she first started working for the casino she wore shortsleeves and that her scar was easily visible, and her co-workers, supervisors and customers asked about the scar and how it happened. Therefore, it is reasonable to conclude that the applicant's scar will attract the notice of potential employers. The disfigurement could lead to lost opportunities for work in customer service, retail sales, or similar positions that the applicant may perform in the future. The applicant has already held two different jobs since her work injury and it is not unreasonable to conclude that she may have future job changes, and that her disfigurement could cause a potential wage loss.

In a similar case of Lee v. Hmong American Services Center, (LIRC decision dated March 9, 2001), involving an applicant with a surgical disfigurement due to an amputation of a finger, who had returned to work for a different employer and was earning more than she had with the employer in which the injury occurred, the commission found that the disfigurement did occasion a potential wage loss. Based on a review of the photographs of the applicant's scar due to her work injury and given her testimony that her scar is visible to co-workers and customers and has caused comment from supervisors, co-workers and customers the commission finds that the applicant is so permanently disfigured as to occasion potential wage loss.

The next question is the amount of compensation for disfigurement. The employer argues that the applicant is not entitled to any award due to the fact that she has obtained a higher paying job. As the commission noted in the Lee decision, the applicant's relative ease in finding a higher paying job militates against the maximum award, but does not determine that the applicant is not entitled to any award for her disfigurement. Under the circumstances presented in this case, and given review of the applicant's scar as well as other factors presented in Wis. Stat. § 102.56(1), the commission finds that the administrative law judge's award of $2500.00 was reasonable.

cc: Attorney Gregory Meyer
Attorney Richard G. Clausen

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