STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

ROCKY J ALSTEEN, Applicant

U S STICK CORPORATION, Employer

FIRE & CASUALTY INS CO OF CONNECTICUT, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 91019663

The administrative law judge (ALJ) issued his findings of fact and interlocutory order in this case on October 11, 1996, following a hearing on September 23, 1996. The employer and the insurer (collectively, the respondent) have submitted a petition for commission review of the ALJ's findings and order. Thereafter, both the respondent and the applicant submitted briefs.

Prior to the hearing, the respondent conceded jurisdictional facts, an average weekly wage of $240, and a March 22, 1991 compensable injury. The respondent conceded and paid temporary total disability of $1,600.00 for the period from March 23 to June 2, 1991; temporary partial disability of $144.00 for the period from June 2 to June 16, 1991; and temporary total disability of $6,133.34 for the period from June 16, 1991 to March 11, 1992. The respondent also conceded and paid permanent partial disability at two percent compared to loss of the left arm at the elbow, in the amount of $1,233.00.

The issues at the hearing and before the commission are the nature and extent of disability beyond that conceded, liability for medical expenses and medical mileage, whether the applicant is entitled to a disfigurement award under sec. 102.57, Stats., and whether the jurisdiction should be retained by an interlocutory order.

The commission has carefully reviewed the entire record in this case, including the briefs submitted by the parties. Having done so, the commission hereby sets aside the administrative law judge's findings of fact and interlocutory order, and substitutes the following therefor:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

a. Overview.

The applicant, who was born in 1956, injured his arm while working for the employer on March 22, 1991. At the time of his injury, the applicant was cleaning a machine which "cycled," causing a hydraulic arm to fall on his left arm. The applicant suffered a transverse fracture along the radial shaft. He was taken to the hospital and underwent an open reduction procedure in which the bone was set by attaching an eight inch steel plate to the bone. The plate is permanent.

The applicant also required skin grafts to close the wound, and has since had plastic surgery. Nonetheless, he has a substantial scar on his left forearm, which the ALJ noted was quite evident from eight feet away. The ALJ described the scar as two inches by four inches in size, and two different colors (pink and darker) than his normal skin hue. The area of the scar is indented, the ALJ describes it as "residing in a sort of crater."

The applicant was in a healing period for a year until March 11, 1992. The respondent has conceded and paid temporary total disability during that period (except for two weeks of temporary partial disability in May 1991 when the applicant briefly returned to work.) The respondent also conceded permanent partial disability at two percent at the elbow.

b. Permanent disability.

The first issue is the extent of disability, specifically permanent disability, beyond that conceded. Jonathan R. Berry, M.D., is the surgeon who performed the fixation procedure on the applicant's radius bone after the injury. His notes mention the severe crush injury to the applicant's forearm causing severe muscular damage and a crushed radial nerve. Dr. Berry's notes also establish that while the applicant initially had trouble bending his fingers and moving his wrist, these problems improved over the course of time.

By November 1991, the applicant was doing "just great," and was able to lift medium to heavy weights. The doctor noted all of his nerves were working, although the applicant experienced tingling in his hand. He lacked five degrees of pronation and extension in his wrist, but had full flexion. The doctor opined the applicant was ready for work in the medium heavy level, but expected he would continue to improve.

On March 11, 1992, Dr. Berry opined the applicant had reached a healing plateau. He noted a remarkable recovery, with full pronation, supination, extension and flexion of the wrist. He also noted full flexion and good strength in extension of the fingers. The applicant had some tingling in his fingers, although he could distinguish between sharp and dull objects and had "two point discrimination" at 5 or 6 millimeters. Finally, the doctor noted good strength in the left arm generally, but that sometimes the applicant would feel something "give" a little bit.

On March 17, 1992, Dr. Berry prepared a "medical report" estimating permanent partial disability at two percent for "a slight decreased sensation in his fingers of 1 mm." He opined the applicant's prognosis was good and that further treatment would not be necessary. However, he did not specify the level (wrist, elbow or shoulder) for which two percent was rated.

Two weeks later, on April 1, 1992, Dr. Berry prepared a certified report on form WC-16B to which he attached his clinic notes. This time he rated permanent disability at five percent for "pain with repetitive motion and mild weakness compared with the opposite side." He again opined further treatment would not be necessary, but described the applicant's prognosis as poor, noting that while expected some further gain in strength and decreased pain, the applicant would not make a full recovery. Again, he does not explicitly state what level his five percent rating was for.

Evidently not much happened with this claim until 1995. In June of that year, the applicant saw G.A. Peitzmeier, M.D., about continued popping or cracking in his forearm, which the applicant could reproduce by bending back his wrist. According to the doctor's note, this symptom began while he was moving cement blocks in his job with a new employer, Steenberg Homes. The doctor noted that the applicant did not have severe pain, but just the feeling of something being "loose inside."

Finally, the applicant was seen by Timothy Romang, M.D., for an independent examination. Dr. Romang noted complaints of occasional aching in the left wrist and forearm area with increased activity, tingling in three fingers, and in the distal (hand) end of his arm with temperature changes.

On physical examination, Dr. Romang noted normal shoulder motion, and full elbow motion. The range of motion in his fingers was normal. Manual muscle testing scores showed the strength in his deltoids, biceps, triceps, wrist extension, wrist flexion, grip, and hand intrinsics were all 5-/5; the commission believes this is the highest or a "back to normal" rating. On the other hand, dynometer testing showed applicant's lateral pinch and grip strength was in the bottom 10th percentile on the left, as opposed to the 50th and 75th percentile on the right.

Dr. Romang noted his impression:

"[The applicant] exhibits evidence of residual median nerve dysfunction presumably secondary to injury at the antecubital fossa. Function of the radial and ulnar nerves appears intact. The patient does have a significant reduction in grip strength and lateral pinch on the left in the less than or equal to the 10th percentile range (percentages based on standard norms taking into account age, gender and involvement of the nondominant extremity.) The patient also reports subjective numbness over the pad of the first and second digit and to a somewhat lesser degree over the lateral space of the fifth digit. Objective sensory testing, however, is intact.

"Based on the before mentioned deficits of motor function in the median nerve innervated muscles, recommend issuing a permanent partial disability rating of 10% at the wrist."

Exhibit C, Romang report pages 3-4. Dr. Romang also stated on his attached practitioners report form that the work incident of March 22, 1991 directly caused the applicant's disability, that the prognosis was fair to good, and that further treatment in the form of medication would be necessary.

At the hearing, the applicant testified that he has swelling and pain in his forearm 20 out of 30 days, and every day in his wrist. The forearm pain is like a bad ache, and may last all day long with changes in the weather. He also experiences tingling in four of his five fingers. He no longer bow hunts, and has stopped hunting with a gun. He acknowledged, though, that he has no actual work restrictions.

The commission notes first that neither Dr. Berry nor Dr. Romang rated disability at both the wrist and the elbow. In addition, the commission is uncertain whether Dr. Berry actually meant to rate disability at the elbow rather than the wrist. Third, most of the discussion of disability (decreased grip strength, pinch strength, finger sensation) in the notes of both Dr. Berry and Dr. Romang deals with the hand rather than the forearm. Fourth, in light of the applicant's symptoms as reported in the medical records (particularly Dr. Romang's report), the commission is not persuaded that the record supports the applicant's hearing testimony concerning his arm pain. Finally, permanent disability is rated at the level where the disability is present, which is not necessarily the point where the injury occurred. (1)

In light of all this, the commission accepts Dr. Romang's report as most credible concerning the extent of the applicant's permanent disability. His opinion is clearer than Dr. Berry's, and seems better supported by actual objective testing in addition to the applicant's subjective complaints. Further, Dr. Romang clearly rates disability at the wrist, in contrast to Dr. Berry's report. Finally, a ten percent rating at the wrist is consistent with the type of injury sustained and the applicant's residual symptoms and disability.

c. Medical treatment expense.

The applicant seeks payment of a Rhinelander Medical Center bill in the amount of $180.50 for the June 13, 1995 office visit with Dr. Peitzmeier. On the one hand, arguably the treatment that day "can be traced back to, and have some causal connection with, the first injury occurring while in the immediate service of the employer" so that the respondent would be responsible to pay it. Western Lime & Cement Company v. Industrial Commission, 194 Wis. 606, 608 (1928). On the other hand, arguably the more reasonable medical opinion might be that the treatment that day was for a new and superseding injury while the applicant was working for Steenberg Homes in which case that employer and its worker's compensation insurance carrier ought to be liable for the payment of that bill. Since the answer is not clear on this record and since the applicant ought to have an opportunity to clear up this medical causation question on this bill should he choose to do so, the department retains jurisdiction over this $180.50 billing.

The applicant also claims $177.84 for 684 medical miles traveled for treatment from his providers for this injury. He mistakenly lists a mileage rate of 26 cents a mile on the WC-3, Exhibit D. The 26 cents a mile reimbursement rate did not go into effect until January 1, 1994. Mr. Alsteen traveled 669 miles before that date so at the earlier rate of 24 cents a mile, he is entitled to be reimbursed $160.56 for the medical mileage pre-January 1, 1994. Excluding the 5 miles round-trip to Dr. Peitzmeier on January 13, 1995, he traveled 10 miles post-January 1, 1994 so at 26 cents a mile, he is entitled to receive an additional $2.60. The total is $163.16. However, he has already been paid $117.22 (Exhibit 3) so he is now entitled to receive $45.94 from the respondent.

d. Disfigurement.

As noted above, the ALJ reported in his decision that the applicant's scar was quite evident from eight feet away. He also described the scar as two inches by four inches in size, and two different colors (pink and darker) than his normal skin hue. The area of the scar is indented; the ALJ describes it as "residing in a sort of crater."

After the injury, the employer had no work for the applicant except for a couple weeks in May 1991, early in the healing period. It did not employ him when he was released for heavy work in November 1991 evidently because of economic reasons. The applicant did work part-time job as a recruiter with the National Guard in 1992 and 1993. He also found full time work at Steenberg Homes from February 1994 until November 1995 when there was a mass firing. Otherwise, he has had no other post-injury employment since the time of the injury; he was unemployed at the time of the September 1996 hearing. This is this longest period of time he has been unemployed since 1981.

The applicant has had four job interviews since losing his job at Steenberg Homes. None of these employers gave the applicant's scar as a reason for refusing to hire him; indeed none of them even asked about the scar. On the other hand, Steenberg Homes asked about the scar during the job interview, as did the National Guard, though the scar did not prevent his hire for either job. The applicant also testified female coworkers at Steenberg Homes considered the scar "awful," and asked him to cover it during lunch breaks.

Disfigurement claims are compensable under sec. 102.56, Stats. Section 102.56 (1), Stats., allows "an employe who is so permanently disfigured as to occasion potential wage loss" to recover just compensation not exceeding his average annual earnings. If an employe returns to his time-of-injury-employer he must show he probably has lost or will lose wages due to disfigurement under sec. 102.56 (2), Stats.

The commission must thus decide whether the "probable wage loss" standard under sec. 102.56 (2), Stats., applies to the applicant's disfigurement claim, rather than the "potential wage loss" standard" in sec. 102.56 (1), Stats. Perhaps because the ALJ so thoroughly discussed the issue in his decision, the respondent does not argue that the applicant's claim is subject to the more onerous "probable wage loss" standard. In any event, the applicant's two weeks of employment prior to the healing plateau simply does not trigger the operation of sec. 102.56 (2), Stats. The "potential wage loss" standard under sec. 102.56 (1), Stats., applies here.

Beyond that, there are essentially four issues posed by disfigurement cases: (a) is there a disfigurement, (b) is the disfigurement exposed, (c) does it "occasion potential wage loss", and (d) if so, how much should be awarded? The respondent does not seriously argue that the applicant's scars are not disfiguring. Nor does the respondent really suggest that the applicant could easily hide his disfiguring scars from sight during the course of employment. (2) Rather, the respondent simply contends that the applicant has not shown any potential wage loss due to his scars.

The legislature deliberately chose to allow awards for potential loss under sec. 102.56 (1), rather than probable loss or actual loss. The commission must conclude from this that a relatively low standard of proof applies on this issue when circumstances prevent the applicant from returning to work for his time-of-injury-employer.

While no prospective employers have asked about the scar, a prospective employer might easily infer from the scar that the applicant suffered an expensive and serious work injury and, in turn, be discouraged from hiring him. Beyond that, the scar as described by the ALJ is off-putting to say the least. Moreover, the applicant is currently unemployed, and is in the midst of the longest sustained period of unemployment he has ever experienced. The commission concludes the scar has occasioned at least a potential wage loss in this case.

This leaves the last question, the amount of compensation that is just for the applicant's disfigurement. The ALJ awarded $6,240, an amount equal to one-half the applicant's average annual wage with the employer. That figure is one-half the maximum that may be awarded.

Youth was the primary factor for a $14,000 award in Evans Bros. v. LIRC, 113 Wis. 2d 211 (Ct. App. 1993) (3). As a further guide, the commission affirmed an award of only $1,625 to a 34 year old who had a disfiguring scar on his hand in Bruce Ricco v. Unpainted Furniture Company, WC claim no. 88-030696 (LIRC, April 30, 1992). In that case, the injured worker made and sold furniture at retail. The commission recently awarded only $2,500 to a roofing installation salesman who had scars on his legs, but the scars in that case were not as disfiguring as here. Kurt Frederick Thompson v. Thompson Roofing, WC case no. 85003642 (LIRC, February 28, 1997). In Berliner & Marx, where the evidence implied that the worker's "incredibly ugly" scar may have cost him at least two jobs, the disfigured employe received a $10,000 award. Finally, the commission should not overlook the observation of the court of appeals that sec. 102.56, Stats., "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).

In this case, the ALJ, who could observe the scar firsthand, found it quite disfiguring. Certainly, a scar on the arm is in a pretty visible location. The applicant testified credibly that coworkers found the scar disturbing. It is true that the applicant has been able to find work, despite the scar, and at pay rates exceeding his pay rate at the time of injury. Nonetheless, considering the applicant's age, education, and employment history, the commission adopts as reasonable the ALJ's award of $6,240, or one half the applicant's average annual earnings at the time of the injury.

e. Award.

The commission therefore concludes that the applicant has sustained permanent disability from the work injury at ten percent compared to loss of the left hand at the wrist. He is therefore entitled to forty weeks of permanent disability compensation, at $137 per week (the maximum rate for permanent partial disability compensation in 1991) totaling $5,480, all of which has accrued.

The applicant is also entitled to just compensation for potential wage loss from his disfigurement in the amount of $6,240. This amounts to a total award for disability and disfigurement compensation of $11,720. From this must be subtracted the conceded permanent partial disability at 2 percent compared to amputation at the elbow totaling $1,233, to yield the total in additional disability and disfigurement compensation under this order of $10,487.

The applicant agreed to the payment of an attorney fee under sec. 102.26, Stats. A twenty percent fee in this case equals $2,097.40. That amount, together with legal costs of $378.41, shall be subtracted from the total additional award, leaving an amount due the applicant for disability and disfigurement compensation of $8,389.60. In addition, as noted above, the applicant is entitled reimbursement of $45.94 for medical mileage.

Finally, the commission notes both the remaining question about Dr. Peitzmeier's medical treatment expense and Dr. Romang's opinion that medical treatment will be necessary in the future. Accordingly, this order is left interlocutory on the issues of: the $180.50 bill from Dr. Peitzmeier; future medical expenses; and the applicant's claim against the employer for safety violation under sec. 102.57, Stats.

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

INTERLOCUTORY ORDER

The decision of the administrative law judge is modified to conform to the foregoing and, as modified, affirmed in part and reversed in part.

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

(1) To the applicant, Rocky J. Alsteen, Eight thousand three hundred eighty-nine dollars and sixty cents ($8,389.60) for permanent partial disability and disfigurement compensation.

(2) To the applicant's attorney, James T. Runyon, the sum of Two thousand ninety-seven dollars and forty cents ($2,097.40) as attorney fees and Three hundred seventy- eight dollars and forty-one cents ($378.41) in costs.

(3) To the applicant, Rocky J. Alsteen, the sum of Forty- five dollars and ninety-four cents ($45.94) in medical mileage.

Jurisdiction is retained to issue such further orders as may be warranted consistent with this decision.

Dated and mailed March 27, 1997
alstero.wrr : 101 : 8  ND § 5.36

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

David B. Falstad, Commissioner

MEMORANDUM OPINION

The commission largely affirmed the ALJ's order. While the commission modified the award for permanent disability, it did so on the basis of its reading of the medical reports from the medical experts who did not testify at the hearing. Consequently, no conference regarding witness credibility and demeanor was necessary under Transamerica Ins. Co. v. ILHR Department, 54 Wis. 2d 272, 283-84 (1972).

cc: ATTORNEY JAMES T RUNYON
RUNYON LAW OFFICES

ATTORNEY DAVID A CASTAGNA
QUARTARO CASTAGNA EVEN & CAFARO

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Footnotes:

(1)( Back ) See, for example, Neal & Danas, Workers Compensation Handbook, sec. 5.18 (3d ed., 1990).

(2)( Back ) The commission has previously addressed the issue of whether it may deny a disfigurement claim because the disfigurement could be easily hidden, stating: "The commission realizes that the scar may be hidden if [the injured worker] wears a long sleeve shirt. However, the commission does not believe that occupations for which the applicant is suited are ones that in the most part and for the majority of time, utilize long sleeves unless the applicant chose to wear such long sleeves simply to cover his scar. The commission has considered the fact that long sleeves will cover the applicant's scar, but, again, it is only one factor in the commission's review of this case." 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). Stated another way, the extent to which a disfigurement in an otherwise normally exposed area may be hidden is only one factor in the consideration of a disfigurement case; the entire claim is not denied outright simply because the disfigurement may be easily hidden. This is consistent with Evans Bros. v. LIRC, 113 Wis. 2d 221, 226 (Ct. App., 1993), where the court of appeals affirmed an award based on scars that were visible only when the injured worked shirtless during the summer. Moreover, the statute does not allow for the outright denial of an award because a disfigurement may easily be hidden. Instead, the commission must consider whether the disfigured or scarred area is exposed in the normal course of employment in occupations for which the injured worker is suited.

(3)( Back ) Where a 17 year old was left with "not dramatically disfiguring" scars that were exposed only in the summer when he applicant worked shirtless.