MARK W GAJEWSKI, Applicant

B & E GENERAL CONTRACTORS, Employer

CINCINNATI INSURANCE CO, Insurer

In January 2002, the applicant filed an application for hearing seeking compensation for disfigurement and medical expense. An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development heard the claim for disfigurement compensation on August 7, 2002.

Prior to the hearing, the employer and its insurer (collectively, the respondent) conceded jurisdictional facts, a compensable injury on December 27, 2000, and an average weekly wage of $540. Disability compensation for a right wrist injury was also conceded and paid. At issue before the ALJ was the applicant's entitlement to compensation for disfigurement under Wis. Stat. § 102.56.

The ALJ issued his decision awarding $4,000 in compensation for disfigurement. The respondent filed a timely petition for commission review.

The commission has considered the petition and the positions of the parties, consulted with the presiding ALJ concerning witness credibility and demeanor, and reviewed the evidence submitted to the ALJ. Based on its review, the commission makes the following:

The applicant worked for the employer as an expediter, and injured both his wrists at work in separate industrial accidents. He subsequently underwent a number of surgeries that resulted in scarring from incisions. After his injuries and surgeries in 2001 and early 2002, the applicant returned to work for the employer, without reduction in pay. See Exhibit 1, July 11, 2002 report of Campbell, page 5.

The applicant subsequently left the employer (B&E General Contractors) for similar employment with another company (Milwaukee Kitchen and Bath) because he thought the new job offered better opportunities for career advancement. He knew the management at Milwaukee Kitchen and Bath, and was able to secure the new job easily. His new job, apparently like his old one, involves making sales calls at customer's homes and handling in-store sales. The applicant makes the same wage at Milwaukee Kitchen and Bath that he made at B&E General Contractors.

The applicant's scarring was discussed during his job interview with Kitchen and Bath, when the interviewer asked "how it was going and if [he] was facing any more surgery." A coworker told him his scar looked "nasty." Customers mention his scarring. On the other hand, the respondent offers expert vocational opinion from Michael Campbell who opined that the applicant sustained no probable wage loss by virtue of his scarring. Exhibit 1, report of Campbell, page 8. Vocational expert Campbell supports this conclusion by observing that the applicant left his job with B&E General Contractors of his own accord and found work with another employer at the same wage, and that in any event the applicant's experience would nullify the disfigurement in the eyes of personnel managers.

The disfigurement statute, Wis. Stat. § 102.56, provides:

102.56 Disfigurement. (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 therefor, not exceeding the employee'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 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.

(2) Notwithstanding sub. (1), if an employee who claims compensation under this section returns to work for the employer who employed the employee at the time of the injury at the same or a higher wage, the employee may not be compensated unless the employee shows that he or she probably has lost or will lose wages due to the disfigurement.

The department's interpretative footnote in DWD, Worker's Compensation Act of Wisconsin with Amendments to January 1, 2002, form WKC-1-P (R. 07/2002) provides:

193 This amendment provides that if an injured employee returns to work for that employer for whom he or she worked at the time of the injury without any wage loss, then the employee is not entitled to compensation for disfigurement. However, the employee 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."

The first question is whether this case is governed by the "potential" standard of Wis. Stat. § 102.56(1) or the "probable" standard of Wis. Stat. § 102.56(2).

The applicant cites to George Landowski, Sr. v. Harnischfeger Corporation, WC Claim No. 1991-076783 (LIRC, July 6, 2001), where the applicant was returned to work with the time-of-injury employer (Harnischfeger) after the disfiguring injury, but was then laid off. While laid off, the applicant found work with another employer, and quit Harnischfeger's employment when recalled from layoff. In Landowski, the commission considered a circuit court case, Berliner & Marx v. LIRC, case no. 93-CV-675 (Wis. Cir. Ct. Marathon County June 21, 1994), involving a disfigurement claim brought by a worker who had returned to work and later lost his job because the employer closed its business.

In Berliner, the circuit court affirmed the commission's decision to determine the applicable standard by considering the facts of the applicant's employment status to the time of the disfigurement hearing. Following Berliner, the commission applied the potential wage loss standard in Landowski as well. The applicant suggests that Landowski adopts a bright line test that determines whether Wis. Stat. § 102.56(1) or (2) applies based solely on where the applicant is working when the disfigurement award is made, regardless of the circumstances of any separation from the time-of-injury employer.

However, Landowski and Berliner should not be read in such absolute terms. Rather, those cases, and the others cited in the Landowski decision, (1)  stand for the proposition that if an employer returns a disfigured worker to work for some period of time after the disfiguring injury, that does not necessarily cut off any future consideration under the lower Wis. Stat. § 102.56(1) "potential" standard. Rather, the "potential" standard may still apply where the injured worker has subsequently separated from the time-of-injury employer, and that separation is due to a discharge or layoff by the employer.

What about when the employee quits?  In Lee, the commission held that a disfigurement case was properly analyzed under the potential standard when a worker refused reemployment--and thus never returned to work with the employer. Quitting may be analogized to refusing work, suggesting that the lesser "potential" standard should apply, even where the separation occurs because the worker quit of his or her own accord. In Lee, however, there were significant questions about whether the job offer was actually made, whether the offered job was suitable for the worker given her restrictions, and how much it paid. (2)

Moreover, the Moslavic case suggests that the higher "probable" standard applies when the applicant quits the employer of his own volition. More recently, the commission applied the higher "probable" standard in a case where a deli worker voluntarily terminated her employment with the employer to seek work elsewhere. Jill Polglaze v. Fleming Companies Inc., WC Claim No. 1989-034689 (LIRC, November 19, 2001), affirming (DWD ALJ May 29, 2001).

In sum, cases where a disfigured worker returns to work for the time-of-injury employer and is later laid off or fired are reasonably distinguishable from a case where a worker returns to his former job at his former rate of pay and later voluntarily quits to accept other employment for reasons unrelated to the injury. In the later situation, the "probable" standard under Wis. Stat. § 102.56(2) applies. Otherwise, an employee who had been returned to work by the time-of- injury employer would have incentive to quit his job to trigger the lower "potential standard."

Has the applicant shown he probably has lost or will lose wages due to the disfigurement? On this point, the commission has stated:

... 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.

Polglaze, supra.

In this case, the employer returned the applicant to work until he voluntarily quit. He was able to find a job he regards as providing more opportunity with the first employer he contacted. While it is true he knew the management at his new employer, the facts of the job change illustrate Mr. Campbell's point that the applicant's experience would outweigh the effect of his disfigurement in the job market.

Beyond that, at age 43, the applicant is in the middle, rather than the beginning of his vocational years, again leading to the inference that experience will outweigh appearance. He is a college graduate. The photographs at Exhibits A1, A2, and A3 establish that his surgical scarring, while noticeable, may be covered to a large extent by wearing sleeves and is generally less disfiguring than scarring often associated with industrial accidents.

Considering all of these factors, the commission concludes the applicant in this case has not shown he probably has lost or will lose wages due to the disfigurement. The application must therefore be dismissed as it pertains to the disfigurement claim under Wis. Stat. § 102.56.

NOW, THEREFORE, the Labor and Industry Review Commission makes this

The findings and order of the administrative law judge are reversed. The application, as it relates the claim for compensation for disfigurement under Wis. Stat. § 102.56, is dismissed.

Dated and mailed September 25, 2003
gajewsm . wrr : 101 : 8   ND § 5.36

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

The commission conferred with the presiding ALJ about witness credibility and demeanor. Transamerica Ins. Co. v. ILHR Department, 54 Wis. 2d 272, 283-84 (1972); Hermax Carpet Mart v. LIRC, 220 Wis. 2d 611, 615-16 (Ct. App. 1998). The ALJ found the applicant to be straightforward and honest, and credited his testimony that the scarring came up in his job interview and in dealings with customers. The ALJ also informed the commission that the scarring as shown in the photographs at applicant's Exhibits A1, A2 and A3, fairly represented the appearance of the applicant's scars.

The commission does not question the ALJ's credibility assessment. Rather, it reversed his decision based primarily on a different legal conclusion as to whether the "potential" or "probable" wage loss standard applies in this case, as discussed above.

cc: 
Attorney Daniel R. Schoshinski
Attorney David L. Styer

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(1)( Back ) These include: Lee v. Hmong American Svcs. Ctr., WC Claim No. 1997-055889 (LIRC Mar. 9, 2001) (applicant's refusal to return to work for the employer did not constitute a return to work and therefore applicant need only show potential wage loss); Morales v. Emmber Foods Inc., WC Claim No. 1996-031347 (LIRC Feb. 10, 2000) (applicant who returned to work for employer and was discharged because of an extended absence must show probable wage loss); Villa v Evans Products Co., WC Claim No. 1996-024205 (LIRC Dec. 29, 1999)(applicant who returned to work and was on indefinite layoff at the time of hearing need only show potential wage loss); Schaalma v. B. R. Metal Tech Inc., WC Claim No. 1996-060887 (LIRC July 12, 1999)(applicant who returned to work for the employer and was later fired by the employer need only show potential wage loss); Alsteen v. U. S. Stick Corporation, WC Claim No. 1991- 019663 (LIRC Mar. 27, 1997)(applicant who returned to work for a few weeks during his healing period but was not offered employment when released for heavy work because of economic reasons need only show potential wage loss).

(2)( Back ) In Lee, the commission wrote: 

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. 

uploaded 2003/09/26