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

JILL C POLGLAZE, Applicant

FLEMING COMPANIES INC, Employer

KEMPER INSURANCE COMPANY, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1989034689

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.

INTERLOCUTORY ORDER

The findings and order of the administrative law judge are affirmed. Jurisdiction is reserved for such further findings and orders as may be warranted.

Dated and mailed November 19, 2001
polglji . wsd : 185 : 3    ND § 5.36

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION


In their petition, respondents emphasize the fact that since she healed from her work injury of June 8, 1989, the applicant has been continuously employed and her hourly wage has continued to increase, except for a ten-cent-per-hour reduction she voluntarily accepted in order to accept a position with Beloit College. Respondents asserts that ". . . if the employee returns to work for the same employer who employed her at the time of the injury at the same or higher wage she is not entitled to [disfigurement] benefits."

Wis. Stat. § 102.56 (2) provides that if an employee with a disfigurement returns to his/her employer at the same or a higher wage than he/she was earning when injured, the employee may not be compensated for disfigurement unless the employee shows that he/she probably has lost or will lose wages due to the disfigurement. Accordingly, an employee who returns to work at the same or a higher wage must show that her disfigurement "probably" rather than "potentially" will cause wage loss. The "probable" standard requires the employee to meet a higher burden of proof, but does not eliminate the need to examine whether there probably has been or will be wage loss due to the disfigurement. An analysis of whether there probably has been or will be such wage loss includes such factors as the applicant's age, education, training and work experience, earnings history, and likelihood of specific job and/or occupational change. In general, an examination must be made of the probable effect of the particular disfigurement on the applicant's employment and vocational choices after the date of injury. Of course, the severity and location of the disfigurement are of primary importance in such an analysis.

The applicant was only 21 years old when she sustained the partial amputation of her right thumb. She was earning $172 per week at that time, or $8,944 annually. Pursuant to Wis. Stat. § 102.11 (1)(g), she was subject to the presumption of maximum annual earnings, which in 1989 amounted to $544.50 per week. This would equate to $28,314 per year. Based on the applicant's testimony concerning her subsequent work history, it is clear that by age 27, she was earning substantially less than $28,314 but substantially more than $8,944.

The applicant was very young at the time of her injury, and is currently only 33 years old. She has only a high school education but has demonstrated an ability and a preference to change jobs in search of better or more suitable employment. Her current position involves contact with the public, and as the administrative law judge noted, she is a physically attractive woman with a personable demeanor. Her appearance and pleasant demeanor are marketable qualities which are probably undercut to a noticeable degree by her disfigurement. As the administrative law judge pointed out in his findings, the disfigurement is on the applicant's dominant hand and is certainly noticeable. She would have to shake hands with this hand, and she is self-conscious about its appearance. It is probable that her disfigurement has had or will have a significant impact on her career and career choices, and the administrative law judge's award of $8,000 for her disfigurement is appropriate.

cc: 
Attorney Cori Lynn Prahl
Attorney Aaron N. Halstead

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uploaded 2001/11/20