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

KURT FREDERICK THOMPSON, Applicant

THOMPSON ROOFING, Employer

LUMBERMANS MUTUAL CASUALTY COMPANY, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 85003642

The administrative law judge issued her findings of fact and interlocutory order in this case on September 6, 1996, following a hearing on August 20, 1996. The employer and the insurer (collectively, the respondent) have submitted a petition for commission review of the administrative law judge'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 $442.31, and a January 17, 1985 compensable injury. The sole issue at hearing and on review is the applicant's entitlement to benefits for disfigurement under sec. 102.56 (1), Stats.

The commission has carefully reviewed the entire record in this case, including the briefs submitted by the parties. Having done so, the commission hereby affirms the Administrative Law Judge's findings of fact and order, except as modified herein:

MODIFIED FINDINGS OF FACT AND CONCLUSIONS OF LAW

The first eleven paragraphs of the Administrative Law Judge's Findings of Fact are affirmed and reiterated as if set forth herein.

The twelfth and thirteenth paragraphs of the Administrative Law Judge's Findings of Fact are deleted and the following substituted therefor:

"Considering the physical appearance of the applicant's disfigurement in light of his age, education, training and previous experience, present occupation and earnings, and likelihood of future suitable occupational change, the sum of $2,500 is just as compensation under sec. 102.56 (1), Stats.

"The fee for the applicant's attorney is fixed at $500, or twenty percent of the amount awarded, under sec. 102.26, Stats. Deducting the fee from the total award leaves an amount payable to the applicant within 30 days of $2,000."

The Administrative Law Judge's Order is deleted and second and third paragraphs of the Modified Order set out below is substituted therefor:

MODIFIED ORDER

The Findings of Fact and Order of the Administrative Law Judge are modified to conform to the foregoing and, as modified, are affirmed.

Within 21 days from the date of this Order, the employer and the insurer shall pay all of the following:

(1) To the applicant, Kurt Frederick Thompson, the sum of Two thousand dollars and no cents ($2,000.00) as compensation for disfigurement.

(2) To the applicant's attorney, Thomas Domer, the sum of Five hundred dollars and no cents ($500.00) as attorney fees.

This order relates only to the applicant's claim for compensation under sec. 102.56 (1), Stats.

Dated and mailed February 28, 1997
thompku.wrr : 101 : 8  ND § 5.36

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

David B. Falstad, Commissioner

MEMORANDUM OPINION

a. Generally.

The applicant fell from a ladder while working as a self-employed roofer in 1985. He underwent 30 surgeries between 1985 and 1992, which have left him with considerable scarring on his right lower leg. He filed a disfigurement claim under sec. 102. 56 (1), Stats., and was awarded $5,000 for his disfigurement by the ALJ (1).

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? In their petition for commission review, the employer and the insurer (collectively, the respondent) do not seriously argue that the applicant's scars are not disfiguring. Instead the respondent contends that the applicant can easily hide his disfiguring scars from sight during the course of employment; that the applicant's reasons for not doing so are not convincing; and that in any event the applicant has not shown any potential or actual wage loss due to the appearance of his lower leg.

b. An exposed disfigurement?

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.

On this point, the only evidence in the record is the applicant's unrebutted testimony. He states that in his job as roofing estimator he dresses like a roofing applicator, in casual workmanlike attire. He also testified that this includes wearing shorts in the summer, noting that roof temperatures are considerably warmer than ground temperatures.

The employer points out that days when the temperature reaches 90 degrees are rare in Milwaukee county. However, the commission is not certain a 90-degree temperature is the threshold at which a roofing estimator would wear shorts. Again, the standard is whether a disfigurement would be exposed in the normal course of a worker's occupation, not the point at which it becomes "too uncomfortable" for the worker to cover his disfigurement. The commission accepts the applicant's unrebutted testimony that he wears shorts 70 days per year as a reasonable estimate of what is normal in the occupation of roofing estimator.

The commission was more troubled by the employer's next point, the credibility of the applicant's testimony that he must dress in casual workmanlike attire in order to sell roofs. Even accepting the applicant's testimony that he had to dress like a roofing applicator in order to sell roof applications, the commission is not entirely persuaded that roofing applicators, whose job involves exposure to hot tar or asphalt shingles, would wear shorts. On the other hand, the commission can readily believe that a roofing estimator, whose job requires actually going up on roofs, might well prefer such attire. Certainly the applicant so testified, and the commission believes it would have to engage in speculation to find otherwise.

In sum, the commission is satisfied that the applicant's disfiguring scars are in an area that are normally exposed in the normal course of the employments or occupations for which the applicant is suited. The applicant, then, has shown he has the type of disfigurement that is compensable, assuming he can prove it occasioned potential wage loss.

c. Potential wage loss.

The legislature deliberately chose to allow awards for potential loss under sec. 102.56 (1), rather than probable loss or actual loss. Compare, sec. 102.56 (2), Stats. The commission must conclude from this that a relatively low standard of proof applies on this issue, particularly when the functional disability imposed by the work injury prevents the applicant from continuing to work with the time-of-injury employer.

The applicant asserted that his scars might cause potential customers to think he was clumsy and in turn discourage them from dealing with the company he represented. This "klutz" theory has been raised before the commission in the past, although with relatively little success as the injured worker in that case was selling a completed product. Bruce Ricco v. Unpainted Furniture Company, WC claim no. 88-030696 (LIRC, April 30, 1992)(where the commission awarded about $1,600 for disfigurement). In this case, of course, the "klutz" theory makes more sense since the roofing work the applicant solicited was yet to be performed.

Beyond that, of course, the applicant deals directly with the public in his job, albeit with commercial customers who are mostly men. Everything else being equal, the commission is willing to conclude that some potential customers, at least, would choose to deal with the company whose estimator did not appear to have been injured doing the very type of work being contracted for. In sum, the commission concludes that a roofing estimator with visible scars from an injury that occurred while installing a roof has at least a potential for wage loss based on the disfigurement.

d. Amount of award.

This leaves the last question, the amount of compensation that is just for the applicant's disfigurement. The ALJ awarded $5,000. The maximum, of course, is the applicant's average annual earnings, evidently at the time of injury, which appears to be about $20,000. Arguments may be made either way about whether the $5,000 award is appropriate.

On the one hand, the statutes specifically require age to be considered in determining the disfigurement award. The applicant was 26 when injured in 1985, and 33 in 1992 when he returned to work following his 30 leg surgeries. Thus, he was a relatively young worker by any standard. Youth was the primary factor for a $14,000 award in Evans Bros., supra, where a 17 year old was left with "not dramatically disfiguring" scars that were exposed only in the summer when the applicant worked shirtless.

On the other hand, the applicant is currently making considerably more than he earned when he was working in his own roofing business. Further, his disfigurement imposed no impediment to finding work as a roofing estimator once he decided upon that occupation. This puts him in a somewhat different category than the injured worker in Berliner & Marx, where the evidence strongly implied that the worker's "incredibly ugly" scar cost him at least two jobs. The injured worker in that case got $10,000.

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 Ricco, supra. In that case, the injured worker made and sold furniture at retail. As noted above, since the product was completed when sold to the customer, the "klutz" theory was given only minimal weight in determining the amount of potential wage loss. (2) Finally, the commission cannot 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 commission amends the ALJ's order to award the applicant $2,500, about five weeks at his time of injury average weekly wage of $442.31, for potential wage loss after considering the factors set out in sec. 102.56 (1), Stats. The commission gave special consideration to the applicant's age, his previous earnings and experience, and his current earnings and occupation. Specifically, the commission notes that the applicant is now actually making considerably more selling roof applications than he was at the time of his injury installing roofs as a sole proprietor. The commission also notes that the applicant's scars, while disfiguring, are not as off-putting as a deformed hand (3) nor are they "incredibly ugly" as was the case in Larry Blaise.

Finally, the commission gave some consideration to the fact that the applicant's disfigurement may be hidden by wearing long pants or knee socks, and that the applicant cannot point to one instance of actual wage loss. While these two factors do not operate as absolute bar to a disfigurement award, the commission concludes it is appropriate to consider them in determining the amount of the award.

cc: ATTORNEY THOMAS M DOMER
SHNEIDMAN MYERS DOWLING & BLUMENFIELD

ATTORNEY MICHAEL C FROHMAN
KASDORF LEWIS & SWIETLIK SC

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Footnotes:

(1)( Back ) The commission did not confer with the presiding ALJ under Transamerica Ins. Co. v. ILHR Department, 54 Wis. 2d 272, 283-84 (1972), prior to amending her decision. The commission agrees that the applicant was a credible witness. Based on the applicant's credible testimony, the commission simply reaches a different conclusion than the ALJ concerning the amount of potential wage loss.

(2)( Back ) Beyond the scarring cases, the commission awarded $12,000 for disfigurement following the amputation of several fingers in Eaton Corp., infra, and more recently about $5,500 for a worker whose disfigurement was a tremor in the right arm and a "curling inward" of the two smallest fingers on the right hand. Mannery v. National Abatement Co., WC claim no. 91066166 (LIRC, April 4, 1996).

(3)( Back ) See Rick Mannery v. LIRC and National Abatement Company, Milwaukee County circuit court case no. 94-CV-013449 (November 3, 1995).