FERNANDO DIAZ, Applicant
JOB EXPRESS, Employer
EMPLOYERS INSURANCE CO OF WAUSAU, Insurer
In September 2004, the applicant filed an application seeking compensation for disfigurement. An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development heard the matter on February 15, 2005. Prior to the hearing, the employer and its insurer (collectively, the respondent) conceded a compensable injury on December 5, 2003, an average weekly wage of $363.23, and compensation for temporary and permanent disability and medical expense as outlined in the ALJ's order. The sole issue before the ALJ was the applicant's disfigurement claim.
On February 23, 2005, the ALJ issued a decision awarding $1,800 in compensation 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:
The applicant was born in Mexico in 1960 and speaks little English. He has worked since he was fifteen, and lived in the U.S. since 1998. Prior to his injury, most of his employment was as a laborer, doing carpentry and construction work. Since coming to the United States, the applicant worked about a year in construction in Monroe, then at a Qdoba Restaurant in Madison from 1998 to 2003, and then began working for the employer. Transcript, page 11 et seq.
While working as a meat cutter on an assignment at Badgerland Factory for the employer on December 5, 2003, the applicant cut off the tip of the second finger of his left hand. A revision surgery has left him with most of the finger at or below the distal interphalangeal (last) joint. Pictures at exhibit B show a well-healed amputation at the last knuckle. However, the applicant testified, and the ALJ found that the applicant has lost significant motion in the finger, so that he cannot bend it to make a fist. Indeed, the medical notes substantiate the loss of motion.
The applicant initially returned to work at the assignment at Badgerland Factory following the injury. However, his assignment ended when Badgerland Factory eliminated his job. Thereafter, the employer, a temporary help agency, did not offer reassignment. Since the injury, the applicant worked at a Taco Bell Restaurant from February to June 2004, and for another restaurant as a dishwasher for a few days in early 2005. He has applied for work as a factory laborer, a restaurant laborer, and a janitor.
Disfigurement is compensable under Wis. Stat. § 102.56. The statute 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 2004 Amendments, WKC-1-P(R.12/04) provides:
" 199 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'."
Here the applicant has a disfigurement at a part of the body that is normally exposed, and is no longer working with his time-of-injury employer. Thus, 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. At issue is how much is just compensation taking into account his:
While the applicant's disfigurement is visible -- particularly in light of the reduced motion -- and not easily covered in the normal course of employment, as the ALJ noted an amputated finger is a relatively common injury and the applicant's finger is well healed. His work history in restaurants, factories, and construction has not involved a great deal of exposure to the public. Given his age and education, the commission concludes he is likely to continue in the types of employment he has held to date. Indeed, the applicant was returned to work with Badgerland Factory after his injury.
Nonetheless, the commission concludes that just compensation for the applicant's potential wage loss is higher than the $1,800 awarded by the ALJ. In the past, the commission has noted that disfigurement may make a worker appear more clumsy and accident prone to potential employers, regardless of whether the worker has
exposure to the public or not. (1) Moreover, while the applicant's employment has not involved a lot of exposure to the public, he has worked in restaurants, where advancement to waiter or counter work is not out of the question despite the fact his primary language is Spanish. Finally, he has in the past changed jobs on a relatively frequent basis. The commission concludes this pattern is likely to continue into the future, particularly if pursues restaurant work and other unskilled employment. Each time he changes jobs, of course, his disfigurement will potentially play a role in the hiring process.
In this case, the commission concludes that just compensation for the applicant's disfigurement is $5,000, or about 25 to 30 percent of his average annual earnings of $18,161.50 as determined under Wis. Stat. § 102.11(2). Based on the disability payments outlined in the ALJ's order, the commission concluded the award for disfigurement has fully accrued.
The applicant agreed to payment of an attorney fee set under Wis. Stat. § 102.26 at twenty percent, or $1,000. The fee shall be deducted from the applicant's award and paid to his attorney within 30 days. The remainder, $4,000, shall be paid to the applicant in 30 days.
This order shall be final as to the applicant's disfigurement claim, which is the only matter raised in his application for hearing. While the hearing application raises no other matters on which jurisdiction should be reserved, this order should not be construed to bar claims other than disfigurement arising from the December 5, 2003 date of injury.
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 the following:
1. To the applicant, Fernando Diaz, Four thousand dollars and no cents ($4,000.00) in disfigurement compensation.
2. To the applicant's attorney, Aaron Halstead, One thousand dollars and no cents ($1,000.00) in attorney fees.
Dated and mailed September 12, 2005
diazfe . wrr : 101 : 1 ND § 5.36
/s/ James T. Flynn, Chairman
David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
The commission did not discuss witness credibility and demeanor with the ALJ. On this point, the commission notes that its decision to award more compensation to the applicant for his disfigurement is not based on a different impression of the credibility of the hearing testimony of the applicant who testified through an interpreter. Rather, the commission came to a different conclusion as to the proper amount of compensation due based on essentially the same facts as found by the ALJ.
cc:
Attorney Aaron N. Halstead
Attorney Peter L. Topczewski
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