GEORGE LANDOWSKI SR, Applicant

HARNISCHFEGER CORPORATION, Employer

HARNISCHFEGER CORPORATION, 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 July 6, 2001
landoge . wsd : 132 : 1 : ND § 5.36

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

The respondents have petitioned for commission review of the findings and order of the administrative law judge. The respondents argue that the administrative law judge erred in applying the potential wage loss standard in Wis. Stat. § 102.56(1) rather than the probable wage loss standard in Wis. Stat. § 102.56(2). The respondents cite a prior commission decision in which the commission applied the probable wage loss standard where the applicant had returned to work for the employer and quit because of conditions of his employment. Moslavac v. Kohl's Food Store, WC Claim No. 910110607 (LIRC Apr. 13, 1994). The commission has issued decisions applying both standards where the applicant had returned to work for the employer but later separated from employment. (1)

The issue has been addressed at the circuit court level. In Berliner & Marx v. LIRC, No. 93-CV-675 (Wis. Cir. Ct. Marathon County June 21, 1994), the applicant returned to work and later lost his job because the employer closed its business. In Berliner the commission indicated that it was looking at the employment status at the time the disfigurement determination was made in deciding whether potential or probable wage loss applied. The court affirmed the commission's decision noting that its interpretation was consistent with the required liberal construction of ch. 102. The commission finds, as it did in Berliner, that which standard applies is decided by the applicant's employment status at the time of the disfigurement determination.

In the present case, the applicant was not employed at the time of the hearing and therefore the administrative law judge appropriately applied the potential wage loss standard contained in Wis. Stat. § 102.56(1).

The second issue is whether the amount of the award was appropriate. There is no evidence that the ALJ failed to consider the factors set forth in Wis. Stat. § 102.56(1) in setting the amount of the award. The commission notes the applicant's return to work for the employer and subsequent separation from employment are factors to be considered in determining the amount to award. The administrative law judge set out applicant's employment history with the employer at the time of injury and other employers. The commission cannot agree with the respondents' statement that it is not clear whether any consideration was given to the factors set forth in Wis. Stat. § 102.56(1). The administrative law judge specifically noted the applicant's age, level of education, employment history including earnings, the appearance of the disfigurement and its location, and the likelihood the disfigurement would be visible in the normal course of applicant's employment.

cc: 
Attorney Daniel R. Schoshinski
Attorney Joseph Berger

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(1)( Back ) Lee v. Hmong American Svcs. Ctr., WC Claim No. 1997-055889 (LIRC Mar. 9, 2001) (applicant's refusal to return to work for the employer did not constitute a return to work and therefore applicant need only show potential wage loss); Morales v. Emmber Foods Inc., WC Claim No. 1996-031347 (LIRC Feb. 10, 2000)(applicant who returned to work for employer and was discharged because of an extended absence must show probable wage loss); Villa v. Evans Products Co., WC Claim No. 1996-024205 (LIRC Dec. 29, 1999)(applicant who returned to work and was on indefinite layoff at the time of hearing need only show potential wage loss); Schaalma v. B. R. Metal Tech Inc., WC Claim No. 1996-060887 (LIRC July 12, 1999)(applicant who returned to work for the employer and was later fired by the employer need only show potential wage loss); Alsteen v. U. S. Stick Corporation, WC Claim No. 1991-019663 (LIRC Mar. 27, 1997)(applicant who returned to work for a few weeks during his healing period but was not offered employment when released for heavy work because of economic reasons need only show potential wage loss). 

uploaded 2001/07/16