GLORIA ANN GRAHAM, Applicant

COUNTY OF DANE, Employer

COUNTY OF DANE, 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 12, 2006
grahagl . wsd : 175 : 4   ND � 5.36

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

The employer asserts in its petition for commission review the administrative law judge erred in determining the applicant was not entitled to an award of $15,000 as compensation for disfigurement pursuant to Wis. Stat. § 102.56 due to a work-related injury on July 9, 2001. The applicant slipped and fell at work on July 9, 2001, and twisted her back and sustained an injury to her right knee. The applicant underwent arthroscopic surgery on September 25, 2001 and a minimal partial lateral meniscectomy, and then a debridement and drilling surgery to her knee. The applicant did not have good results from her right knee surgery, and continues to suffer pain and loss of strength in the knee. The applicant performed limited sedentary work until April 2004, when there was no further available within her restrictions. The applicant requires a cane to ambulate, and is unable to complete a retraining program, and moved to Georgia to be in a warmer climate.

The applicant admitted in her testimony that other than the limp and use of a cane, she had no other physical manifestations of her disfigurement. The applicant testified that her scar due to her two knee injuries was very small since they were arthroscopic surgeries. The applicant received 25 percent permanent partial disability of the right knee due to her work injury in July 2001. The applicant testified that her altered gait and use of the cane limits her ability to find work. The applicant testified people look at her and ask her if she has had a stroke, and employers are afraid to hire her because they think she will fall down again. The applicant testified she cannot put total weight on her right knee, and it causes her a great deal of pain, and she will have to sit down every now and then while walking. The applicant testified she can only walk 25 to 35 feet, and then she has to stop and her knee will swell up from time to time.

The administrative law judge had the applicant ambulate using a cane at the hearing to get a sense of the applicant's physical restriction and appearance. The administrative law judge found the applicant's walk has a mixture of a limp and foot drag and her legs looked imperfect and asymmetrical, and watching her walk with such difficulty was painful. The ALJ found that the look of the applicant's legs and her altered gait will negatively affect her potential employability and the wage she will earn. In considering the applicant's age, education, training, previous work experience, previous earning, likelihood of future suitable occupational change, and considering her pronounced limp and altered gait, the administrative law judge awarded the applicant $15,000 as compensation for her disfigurement.

Pursuant to 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 compensation, not exceeding the employee's average annual earnings. 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. Under Wis. Stat. § 102.56 consideration for disfigurement allowance is confined to those areas of the body that are exposed in the normal course of employment. In Webster's Third International Dictionary (Merriam Webster 1993), the word exposed is defined as open to view. The commission finds the applicant's severe limp in this case meets the requirements of the statute for a disfigurement award. The applicant's severe limp is clearly open to view in the normal course of her employment.

The employer contends that the commission should follow its precedent in Spence v. POJA Heating & Sheet Metal, WC Claim No. 88-018562 (LIRC, January 20, 1994), in which the commission affirmed the department's order, denying a claim for disfigurement due to the applicant's limp caused by a work injury. In the Spence case, the applicant applied for compensation for disfigurement because of a consequence of his work injury, which required him to walk with a limp and the assistance of a cane, and he was also required to wear a special shoe and a brace. The commission noted in the Spence decision that the applicant's scarring was only observable when the applicant removed his shoe and sock and, therefore, was not compensable under the statute. The commission found in Spence that the applicant's limp was a consequence of his work injury and surgical repair for which the applicant had been compensated pursuant to Wis. Stat. § 102.52(12) and § 80.32(5) of the Wisconsin Administrative Code. The commission found in the Spence case that the disfigurement had historically meant injuries which resulted in amputations, scarring, surgical or otherwise, and burns, and the applicant's limp was not disfiguring within the meaning of Wis. Stat. § 102.56.

The commission reverses its decision in the Spence case. The commission notes that a disfigurement award provided under § 102.56 is not limited simply to burns, scars, or amputations. Rather consideration for disfigurement allowance is confined to those areas of the body that are exposed in the normal course of employment.

The commission's holding in this case is consistent with its prior decision in Jorgensen v. The Wisconsin Department of Veterans Affairs, WC Claim No. 84-27383 (LIRC, October 10, 1986). In the Jorgensen case the applicant required three surgeries as a result of her work-related ankle injury, resulting in three separate scars on her right ankle. As a result of her work injury, the applicant was unable to flatten her right foot and was required to wear a brace or an elevated heel, and walked with a noticeable limp, resulting from the work injury. In the Jorgensen case, the commission affirmed and adopted the findings that the scars the applicant has from her surgeries due to her work injury, the brace she must wear, and the limp she has while walking is noticeable, and the applicant's past work experience and future work potential are generally in areas where the disfigurement suffered as a result of her injury, will have an affect. In the Jorgensen case, the commission found that the applicant's disfigurement will cause potential wage loss and the appearance of the aggregate disfigurement including the scarring, the brace that the applicant wore, and the pronounced limp provided the basis for an award for disfigurement. The commission agrees with the Jorgensen decision that the applicant's limp is an appropriate element to be considered for an award of disfigurement.

The administrative law judge appropriately noted the applicant's unrefuted testimony was that several potential employers refused to hire her because of her perceived limp. The commission agrees with the administrative law judge that the look of the applicant's legs and her altered gait will negatively affect her potential employability and the wage she will earn. Therefore, the commission affirms the administrative law judge's order.

The applicant contends in her cross petition for commission review the administrative law judge erred in failing to award her one year's wages for disfigurement. However, based on a review of all the evidence in the record, and considering the applicant's age, education, training, previous work experience, previous earning, likelihood of future suitable occupational change, and considering her pronounced limp and altered gait, the administrative law judge appropriately awarded the applicant $15,000 as compensation for her disfigurement.

DAVID B. FALSTAD, Commissioner, (dissenting):

I would reverse the ALJ's findings and therefore, I respectfully dissent. The administrative law judge appropriately noted that historically disfigurement was always defined as scars, amputation, and burns. I do not believe Wis. Stat. § 102.56 was intended to apply to provide a disfigurement award for a limp or similar physical restriction.

I would reverse based on the commission's holding in the Spence decision. I agree with the findings in the Spence case, that the applicant's limp was not disfiguring within the meaning of Wis. Stat. § 102.56. In this case, the applicant admitted that she had no other physical manifestations of disfigurement other than her limp and use of a cane. The applicant admitted that her scars due to her two knee surgeries were very small since they were arthroscopic surgeries. I believe the applicant has been appropriately compensated for her limp due to her scheduled work injury, and she received 25 percent permanent partial disability of the right knee due to her work injury in July 2001. I would reverse the finding of an entitlement for a disfigurement award in this case and reaffirm the findings in the Spence case that disfigurement has historically meant injuries which resulted in amputations, scarring, and burns.

/s/ David B. Falstad, Commissioner

cc:
Attorney Raymond G. Clausen
Attorney Timothy J. Yanacheck

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