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

TERESA R COUTTS, Applicant

KELLY SERVICES INC, Employer

TRANSPORTATION INSURANCE CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 2000-014199

Kelly Services, Inc. and Transportation Insurance Company (respondents) submitted a petition for commission review alleging error in the administrative law judge's Findings and Order issued in this matter on June 3, 2002. Briefs were submitted by the parties. A compensable work injury occurring on March 14, 2000, was conceded. At issue is the applicant's entitlement to compensation for disfigurement pursuant to Wis. Stat. § 102.56.

The commission has carefully reviewed the entire record in this matter, and after consultation with the administrative law judge regarding the credibility and demeanor of the witnesses, hereby affirms in part and reverses in part his Findings and Order. The commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW


The applicant, whose birthdate is July 21, 1976, was working as a temporary help employee for a manufacturer that mounts tires on large tractor rims. On March 14, 2000, a tire rim weighing over 100 pounds fell off a rack and landed on her left hand and foot. This resulted in crushing injuries to her left little finger and left ring finger, as well as her left third toe. Three surgeries were required for the little finger and scarring has resulted. She has a visible scar on the top of the left little finger extending from the proximal joint to the proximal interphalangeal joint, and another scar extending along the bottom side of the same area of the finger. The finger is also reduced in length, and its circumference at the proximal interphalangeal joint is larger than normal with a reddish discoloration, giving the appearance of swelling. However, no actual swelling exists because the enlargement is a permanent condition. The finger is also more noticeable when the applicant uses her left hand, because there is no movement at the proximal interphalangeal joint. In addition, the nail bed on the left third toe is missing, and there is scarring where the toenail had been located.

The applicant is a high school graduate with no additional technical training. She has worked in factories, as a waitress, as a packager, and in retail sales. As of the date of hearing she had been employed for six or seven months as a supervisor at a ShopKo Store. There she is in charge of cashier services, the front desk, and customer complaints. She earns $8 per hour and had been earning just over $10 per hour in the job at which she was injured. She has regular contact with the public and two or three times per week customers ask her what happened to her small finger. She contacted the Department of Vocational Rehabilitation but they indicated that she did not currently need help because she has a job. Wis. Stat. § 102.56(1) provides in relevant part:

"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 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. 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 employee is suited."

Accordingly, one of the first steps in assessing a disfigurement award under Wis. Stat. § 102.56(1), is to assess the applicant's earnings. In consultation with the commission, the administrative law judge indicated that he inferred that the applicant's projected average annual earnings should be the maximum annual earnings for an injury occurring in the year 2000, or $41,175. He based this inference on the presumption of maximum annual earnings for injuries to individuals under 27 years of age at the time of injury, pursuant to Wis. Stat. § 102.11(1)(g). (1)   The Wisconsin Supreme Court has interpreted a statute which preceded Wis. Stat. § 102.11(1)(g), although in the predecessor statute the age of the presumption was 21 years instead of 27 years. The predecessor statute was Wis. Stat. § 102.11(1)(e)(1925-26). The court's interpretation is found in Badger Carton Co. v. Industrial Comm., 195 Wis. 327, 218 N.W. 190 (1928):

". . . Is the compensation to be computed upon what the minor would probably earn immediately after arriving at the age of twenty-one years, or can the computation be based upon an unlimited amount of time subsequent to majority, or was it the intention of the legislature to base this compensation upon a reasonable time after majority? If the time after majority is unlimited, the computation, in reasonable probability, would be highly speculative. If based upon the time of majority or a reasonable time thereafter, a basis would exist from which a reasonable computation could be made. It is our view that the legislature intended to enact a valid and workable statute, and we have therefore concluded that a proper construction of the same would require a consideration of what the employee would probably earn within a reasonable time after arriving at majority; and in fixing the award the Commission is entitled to consider, among other things, in addition to the actual earnings prior to the injury, the qualifications of the employee, his education and experience." (Id. at 330-31)(Emphasis in original).

The holding of the Badger Carton case was cited with approval in a case decided under the language of the present statute. Evans Brothers v. LIRC, 113 Wis. 2d 221, 227, 335 N.W.2d 886 (Ct. App. 1983).

The commission begins with the presumption of maximum earnings, but must look to the evidence to determine whether that presumption is appropriate in a particular case.

The applicant was two months away from being 24 years old on the date of her injury, and approximately two months away from being 26 years old when the hearing was held on May 13, 2002. She has a varied employment history which, as previously noted, includes factory work, waitressing, packaging work, and retail employment. She previously considered the pursuit of an accounting degree, but due to loss of dexterity in her left hand she is now considering "human services" jobs. She also indicated that she is "looking into . . . going to school part-time," but related no specific plans in this regard. Given her education, skills, work experience, and actual earnings history as presented in the evidence, the commission infers that within a reasonable time after reaching the age of 27 the applicant would probably have been earning approximately $27,000 per year.

The disfigurement of the applicant's finger is certainly noticeable, but in the commission's judgment, it is not so severe as to engender significant avoidance behavior by individuals either as customers or as employers. The applicant's current employment demonstrates a likelihood of working in a supervisory capacity, which the commission infers would lessen the effect of the disfigurement on her earnings potential. Nevertheless, the disfigurement could provoke a negative reaction in some individuals, and thereby occasion some wage loss. Given all the relevant circumstances, including the annual wage as determined above, the commission finds that an appropriate award for disfigurement of the applicant's left little finger is $5,000. The scarring on the applicant's left third toe is noticeable when the applicant is barefoot. However, given the likelihood that her foot will not be exposed in any of her occupational endeavors, no disfigurement award is allowed for the appearance of her toe.

A 20 percent attorney's fee in the amount of $1,000 shall be deducted from the applicant's award and paid to Attorney Daniel J. Kelley.

NOW, THEREFORE, this

ORDER

The Findings and Order of the administrative law judge are affirmed in part and reversed in part. Within 30 days from this date respondents shall pay to the applicant the sum of four thousand dollars ($4,000); and to applicant's attorney, Daniel J. Kelley, fees in the amount of one thousand dollars ($1,000). This order is limited to the issue of disfigurement under Wis. Stat. § 102.56.

Dated and mailed January 23, 2003
couttte . wrr : 185 : 2  ND § 4.14   § 5.36 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The commission did not identify any credibility or demeanor issues with which it disagreed with the administrative law judge. The commission's determinations regarding the average annual wage and the amount of the disfigurement award were based on analysis of the undisputed facts, and the application of those facts to the statute, as detailed in the commission's findings.

cc: 
Attorney Daniel J. Kelley
Attorney Karl A. VanDeHey

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Footnotes:

(1)( Back ) Wis. Stat. § 102.11(1)(g) provides: "If an employee is under 27 years of age, the employee's average weekly earnings on which to compute the benefits accruing for permanent disability or death shall be determined on the basis of the earnings that the employee, if not disabled, probably would earn after attaining the age of 27 years. Unless otherwise established, the projected earnings determined under this paragraph shall be taken as equivalent to the amount upon which maximum weekly indemnity is payable." 

 

uploaded 2003/01/31