RANDY MUELLER, Applicant

WISCONSIN TISSUE MILLS INC, Employer

ACE AMERICAN INS CO, Insurer

In December 2000, the applicant filed an application seeking compensation for permanent partial disability and disfigurement. An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development heard the matter on August 21, 2001, December 6, 2001, May 14, 2002, and November 11, 2002.

Before hearing, the employer and the insurer (collectively, the respondent) conceded jurisdictional facts, that the applicant sustained an injury to his nondominant left upper extremity on May 24, 1996, and that his average weekly wage on that date was $662.26. The respondent paid compensation for temporary disability for various periods as shown in exhibit A. The respondent also paid compensation for permanent partial disability in the amount of $17,836.26. In dispute before the ALJ were the nature and extent of the applicant's permanent partial disability beyond that conceded, including a claim for disfigurement.

On May 29, 2003, the ALJ issued his decision awarding permanent partial disability for the applicant's functional loss to his left upper extremity at a total of 151.65 weeks, but dismissing the claim for disfigurement. The applicant filed a timely petition for commission review.

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 makes the following:

I. Nature and Extent of Permanent Partial Disability.

As noted above, the respondent concedes a compensable injury occurring on May 24, 1996, when the applicant's left hand became caught between rollers in a machine that packages napkins. The applicant suffered what his doctors described as a severe crush injury.

The respondent did not petition for review of the ALJ's findings concerning the nature and extent of applicant's compensation for permanent partial disability for the functional losses in his left upper extremity. However, the respondent did assert in its brief that the ALJ departed from an earlier set of calculations done by the Division and asks the commission to review the award for accuracy. The ALJ carefully explained why he departed from the initial calculations, and after examining his decision and the attached appendix, the commission agrees with the ALJ. Consequently, the commission adopts division I of the ALJ's Findings of Fact and Conclusions of Law, and incorporates them as if reiterated herein.

II. Disfigurement.

The applicant was born in 1956. He has worked in the employer's paper mill since 1979, and has 23 years of union seniority, ranking him at about 75th most senior of the 750 workers in his plant. Regarding his future vocational plans, the applicant's testimony indicates he intends to remain employed with the employer. For its part, the employer has made substantial investment in the plant where the applicant works. There appears to be no evidence regarding the applicant's education and training.

The work injury left the applicant with disfiguring scars to his left upper extremity shown at exhibits F and G. These are most apparent in the left forearm, where skin grafting was necessary, but he also has surgical scars. The ALJ, who actually observed the scarring, described the "scar patch" from the skin grafting as appearing slightly darker in color than shown in the photographs.

As is evident from the photographs, the scars could be covered, for the most part, if the applicant wore long sleeves. However, the applicant never wears long sleeves while working. His coworkers, consequently, see his scarring and call it "chicken skin." August 2001 transcript, page 47. In public, people look at his scarring and stare, but he does not wear long sleeves in public either.

In October 1998, the applicant's doctor released him to full time work, and he initially went back to work operating the machine on which he had been injured (machine 40). August 2001 transcript, page 27. In May 1999, the doctor issued his "final" set of permanent work restrictions which allowed full time, two-handed duty, with a maximum 100 pound lift, but which limited left upper extremity weight bearing and limited repetitive use of the left arm and wrist. The applicant noticed problems doing the work on machine 40, because his limited flexion in his left arm meant he had to make adjustments in how he did the job, resulting in pain in his neck, low back and shoulders.

In May 1999, the applicant switched jobs to lower paying work on a different machine doing "handstacker" work. His decision was based on the constant pain and swelling, and a concern he would again get his arm caught in machine 40 because of the adjustments he had to make in his routine to do the job. October 2001 transcript, pages 32-36.

The applicant's average weekly wage at the time of injury was $662.26, which is $16.56 per hour. He was paid $17.27 per hour when he initially returned to work on the machine on which he had been injured. However, he was paid only $15.07 per hour in the handstack job to which he switched in May 1999. The applicant was still doing the handstack job to which he had transferred as of the hearing on May 14, 2002, and as of July 1, 2001, was making $16.46 per hour. November 2002 transcript, page 56.

Disfigurement is compensable under Wis. Stat. § 102.56, which 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 accompanying interpretative footnote to Wis. Stat. § 102.56 (found in DWD's Workers Compensation Act of Wisconsin with 2001 Amendments, 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'."

In summary, Wis. Stat. § 102.56, allows "an employee who is so permanently disfigured as to occasion potential wage loss" to recover just compensation not exceeding his average annual earnings. However, if an employee returns to his or her time-of-injury-employer at least at his or her prior wage, the employee must show he or she probably has lost or will lose wages due to disfigurement under Wis. Stat. § 102.56(2).

Here, the ALJ applied the "probable" wage loss standard and concluded that the applicant had not shown he would probably suffer a wage loss because of his disfigurement. The parties cite Morales v. Emmber Foods, WC hearing no. 1996031347 (LIRC, February 10, 2000), which suggests that the probable standard applied whenever the injured worker returns to his old job, even if the worker subsequently switched to lower paying employment because of injury. (In Morales, the commission went on to suggest that the resulting wage loss satisfied the probable wage loss standard.) However, there is also authority that the commission may consider a disfigured worker's wage at the time of the hearing, and not simply whether the worker had once returned to a higher wage with the time-of-injury employer. 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.) The commission has stated that in applying the Berliner & Marx rule, it looks to the circumstances of separations from employment or wage reductions, and may distinguish between voluntary separations or wage reductions by the disfigured worker and those forced upon him or her by economic or medical factors. Gajewski v. B&E General Contractors, WC claim no. 2001- 009059 (LIRC, September 25, 2003.)

The commission realizes that Wis. Stat. § 102.56 uses the present tense in stating

...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...

which might arguably imply that the inquiry should focus on whether the applicant ever made the same or higher wage upon returning to work with the time-of-injury-employer. However, to so hold would force workers to choose between simply trying a return to higher-paying work that may pose functional problems and their disfigurement claims. It might also encourage employers to provide higher paying work for a while to preclude a disfigurement claim. Policy considerations aside, the statutory rules of construction state that the present tense includes the future tense "when applicable." Wis. Stat. § 990.001(3).

Addressing the concern about the circumstances of the wage reduction, the respondent characterizes the applicant's job switch as voluntary. The ALJ addressed this issue indirectly stating:

"The applicant argued he sustained an actual wage loss of $2.20 per hour when he switched from his job as operator of machine 40 to the handstack job. This argument, however, confuses wages lost due to physical dysfunction versus wages lost due to the appearance of applicant's scars. In this case, wages lost due to applicant's physical dysfunction were compensation under sections 102.52 and 102.53. If the applicant is to receive compensation under 102.56(2), Stats., it must be for lost wages 'due to disfigurement.'"

In other words, the ALJ found the applicant switched jobs due to dysfunction, that is, because of the work injury, and not voluntarily.

The commission agrees. Because the applicant's functional restrictions from the injury required him to switch to lower paying work, he did not "return[] to work for the employer who employed the employee at the time of the injury at the same or a higher wage." Indeed, as of July 1, 2001, even after receiving periodic wage raises in his new job as a handstacker, he still made less than he made at the time he was injured ($16.46 per hour compared to $16.56 based on his average weekly wage.) The fact that the applicant tried to return to his old job with no wage loss, should not trigger the higher "probable" standard if the applicant later had to take lower-paying work after reaching a healing plateau because of the functional effects of the work injury. Consequently, the "potential" wage loss standard, not the "probable" wage loss standard, applies under Wis. Stat. § 102.56.

The next question is whether the applicant has shown potential wage loss from his scar. The commission agrees with the ALJ that the applicant's wage loss in transferring to the handstacker job does not per se show that his disfigurement (as opposed to his dysfunction) occasioned potential wage loss as the statute requires. Rather, in determining potential wage loss in cases of disfigurement, the commission considers the factors set out in Wis. Stat. § 102.56(1); the extent to which the disfigurement may be covered; whether coworkers, prospective employers or members of the public have commented on the scar (suggesting a potential vocational effect); the extent to which the worker would be dealing with the public in potential employment; and the so-called "klutz" theory (that a future employer who sees a badly scarred worker might conclude he is accident prone.) Villa v. Evans Product Company, WC hearing no. 1996-024205 (LIRC, December 29, 1999). Considering all of those factors, including particularly the comments from coworkers, as well as the factors set out in Wis. Stat. § 102.56, the commission concludes the applicant has established at least a potential wage loss due to the scarring, the applicant's relative job seniority with the employer notwithstanding. (1)

The next question is how much to award. The statute limits the compensation for disfigurement to an employee's average annual earnings, which here would be $34,437.52. In Frank v. Lauer Deli, WC claim no. 1997-055862 (LIRC, April 6, 2001), the commission awarded a waitress with quite similar scarring a year's wage. But Ms. Frank was a young woman in her twenties whose employment history had almost exclusively involved dealing with the public and whose wage was dependent in part on tips. (2)

The commission also notes observation of the court of appeals that Wis. Stat. § 102.56, "affords the department substantial leeway in calculating a sum to compensate workers who most likely will never know the full extent to which their disfigurements reduced their wages." Eaton Corp., v. LIRC, 122 Wis. 2d 704, 707 (Ct. App., 1985). Considering the factors recited above, the commission concludes that $15,000 is an appropriate award in this case.

Disfigurement is considered permanent partial disability, (3)  which at least arguably may be considered to accrue on a periodic basis. (4)   However, even when added to the 151.65 weeks of permanent partial disability awarded for functional loss, the disfigurement award would be fully accrued. (5)  The amount currently due the applicant for disfigurement, after deducting the 18 percent attorney fee, is $12,300. The fee due the applicant's attorney on the disfigurement claim is $2,700.

III. Award.

Adding the awards for disfigurement and the permanent functional losses to his left upper extremity, the amount currently due the applicant is $18,350.16. The amount due the applicant's attorney is $4,102.67, plus costs of $339.77.

Finally, given the serious nature of the applicant's injury, this order shall be left interlocutory to permit claims for future disability and medical expense.

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

The findings and order of the administrative law judge are modified to conform to the foregoing and, as modified, are affirmed in part and reversed in part.

Within 30 days, the employer and its insurer shall pay all of the following:

1. To the applicant, Randy Mueller, Eighteen thousand three hundred fifty dollars and sixteen cents ($18,350.16) in compensation for permanent partial disability, including functional disability and disfigurement.

2. To the applicant's attorney, Israel Ramon, the sum of Four thousand one hundred two dollars and sixty-seven cents ($4,102.67) in fees and $339.77 in costs.

Jurisdiction is reserved for further orders and awards as warranted.

Dated and mailed May 28, 2004
mueller . wrr : 101 : 9   ND § 5.36 

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

The commission did not confer with the presiding ALJ because it did not reverse the ALJ's decision based on a different view of witness credibility. Indeed, the commission adopted the ALJ's finding the applicant switched jobs because of his dysfunction or his functional limitations due to the work injury. The commission differed with the ALJ on the legal issue as to which standard, "potential" versus "probable," wage loss applied.

cc: 
Attorney Israel Ramon
Attorney Robert H. Zilske

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(1)( Back ) In Eaton Corp. v. LIRC, 122 Wis. 2d 704 (Ct. App., 1985), a disfigurement award was affirmed for a worker whose thirty years of seniority ranked him high on the seniority list, even though the examiner felt it likely, though not certain, the worker would remain employed with the time of injury employer, id., at 706-07, 708-09.

(2)( Back ) In Evan Bros. v. LIRC, 113 Wis. 2d 221 (Ct. App., 1983), a 17-year old worker had a raised pinkish scar on the right arm, a scar visible with an open collar shirt, and further scarring on his chest visible only when he worked shirtless. The worker in Evans Bros. was given the maximum benefit (one year's wage) for potential wage loss. In Eaton Corp., supra, the worker received $12,000 for disfigurement from finger amputations on each hand. Commission decisions on this point include: Larry Blaise v. Berliner & Marx, WC claim no. 900024198 (LIRC, October 6, 1993), affirmed sub nom. Berliner Marx v. LIRC and Larry Blaise, Marathon County circuit court case no. 93-CV-675 (June 21, 1994, a factory worker/laborer with "incredibly ugly" arm scar that could be covered by sleeves ($10,000 for probable wage loss); Kurt Frederick Thompson v. Thompson Roofing, WC claim no. 85003642 (LIRC, February 28, 1997), roofing estimator with leg scars ($2,500 for potential wage loss); Schaalma v. BR Metal Tech, Inc., WC claim no. 1996060887 (LIRC, July 12, 1999), factory worker with scarred and shortened fingers on the left hand after the fingers were surgically reattached following a near amputation ($7,500 awarded for probable wage loss); Alsteen v. US Stick Corporation, WC claim no. 91019663 (LIRC, March 27, 1997), crater-like arm scar on factory worker whose scar attracted comment by coworkers ($6,240 or half annual earnings awarded for potential wage loss); Morales v. Emmber Foods, WC claim no. 1996031347 (LIRC, February 10, 2000) food process worker whose hand was amputated, leaving a right arm stump, ending approximately two to three inches above his prior wrist line with a skin colored surgical scar across its face and extending about two inches up the side of his inner arm, and a small slightly elevated skin colored bump at the end of the scar on the outer side of his arm (maximum award for probable wage loss); Villa v. Evans Products, Inc., WC claim no. 1996024205 (LIRC, December 12, 1999), factory worker with 14 cm. facial scar described as horizontal, from the level of the ear along the jaw line to the chin (maximum award for probable wage loss); Nancy Lee v. Hmong American Svcs Ctr, WC claim no. 1997-055889 (LIRC, March 9, 2001) ($10,000 for a finger amputation in a relatively young woman).

(3)( Back ) See for example the references to "permanent disability not covered by s. 102.52 to 102.56" in Wis. Stat. § 102.44(3) and (6)(h).

(4)( Back ) See for example H.F. Benkert, Worker's Compensation Division Legal Services letter dated March 12, 1985, at http://www.wawca.org/Docs/Dept_Policies/85-03-12%20Benkert%20-%20Disfigurement%20payable%20periodically.pdf .

(5)( Back ) At the applicable rate for PPD of $169 per week, a $15,000 disfigurement award amounts to about another 89 weeks of PPD. Added to the weeks for the functional loss, yields a total of about 241 weeks. According to exhibit A, the last payment of PPD was on April 14, 1999, or more than 267 weeks before the date of this order.

uploaded 2004/06/01