RANDY J STEPHAN, Applicant

THOMAS A MASON CO INC, Employer

ASSURANCE COMPANY OF AMERICA, Insurer

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.

The findings and order of the administrative law judge are affirmed.

Dated and mailed January 11, 2005
stephra . wsd : 175 : 8   ND § 5.36

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

The applicant asserts in his petition for commission review that the administrative law judge erred in determining that the applicant is not entitled to an award for disfigurement due to his work-related injuries on October 3, 2000, pursuant to Wis. Stat. § 102.56(1). The evidence indicates the applicant suffered a horrific incident while sandblasting a building ascending in a mechanical cherry picker when his head hit a 7,600-volt high-tension line resulting in severe injuries to his face, head, neck, chest, and left arm. The administrative law judge appropriately noted that if appearance was the sole factor in an award for disfigurement the applicant unquestionably would be entitled to the maximum allowable under the law. Under 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.

The applicant contends in his petition for commission review that nothing in the Worker's Compensation Act precludes the receipt of permanent total disability and disfigurement under Wis. Stat. § 102.56. However, the commission finds that since the applicant was awarded permanent total disability no award for disfigurement can be made under the statutes. Permanent total disability is the maximum an applicant can receive for a work injury. It is a lifetime award for the maximum amount of benefits. An applicant is not entitled to receive any permanent partial disability if an award for permanent total disability has been made. By definition, an applicant whose nonscheduled impairment causes a total loss of earning capacity receives permanent total disability benefits.

A review of the applicable statutes indicates that an award for disfigurement is a permanent partial disability award or at least is paid as part of permanent partial disability. Support for this proposition is found in Wis. Stat. § 102.44(3) which states that for permanent partial disability not covered by Wis. Stat. § 102.52 to 102.56 the aggregate number of weeks of indemnity shall bear such relation to 1,000 weeks as the nature of the injury bears to one causing permanent total disability.

The commission noted this relationship in Dequaine v. Morning Glory Farms, WC Claim No. 86022944, (LIRC April 7, 1992). In Dequaine the commission stated that the statute clearly indicates that Wis. Stat. § 102.56 provides coverage for permanent disability. In addition, the language in Wis. Stat. § 102.56 specifically refers to compensation for permanent disfigurement. The commission reasoned in the Dequaine case that since Wis. Stat. § 102.56 provides for compensation for permanent disability it is subject to Wis. Stat. § 102.32(6) which provides that if worker's compensation is due for permanent disability, payments shall be made to the employee or dependant on a monthly basis.

In a recent decision, Mueller v. Wisconsin Tissue Mills, Commission Decision dated May 28, 2004, the commission noted that when determining how to pay the award in a disfigurement case, disfigurement is considered permanent partial disability which must be paid on a periodic basis. Also, a March 12, 1985 letter from Harry Benkert, the Worker's Compensation Division Legal Services Director, Mr. Benkert wrote "concerning payment of compensation for disfigurement, this is paid in precisely the same fashion that compensation for permanent disability is paid. In other words, it is paid on a periodic basis and becomes part of the money due for permanent disability."

In the recent commission decision of Larsen v. Larsen Laboratories, Commission Decision dated November 10, 2004, the commission cited the Dequaine decision for the proposition that an award for disfigurement is an award of permanent partial disability. The commission concluded, in the Larsen case, that compensation for disfigurement is, by statute, considered permanent partial disability compensation given the language in Wis. Stat. § 102.44(3) which refers to permanent partial disability not covered by Wis. Stat. § § 102.52 to 102.56. Based on the department's consistent interpretation of the statutes, and given the commission's decisions and based on the language in Wis. Stat. § 102.44(3), an award for disfigurement is considered permanent partial disability, and therefore an applicant who has been found to be permanently totally disabled is not entitled to an award for disfigurement unless and until at some point the permanent partial disability award is modified to a lesser amount of loss of earning capacity.

cc:
Attorney Patrick J. Mitchell
Attorney Thomas Domer

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