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05/18/83 EVANS BROTHERS COMPANY v. LABOR & INDUSTRY

May 18, 1983

EVANS BROTHERS COMPANY, INC., AND IOWA NATIONAL MUTUAL INSURANCE COMPANY, PLAINTIFFS-RESPONDENTS
v.
LABOR & INDUSTRY REVIEW COMMISSION, DEFENDANT, RICHARD G. PALMER, DEFENDANT-APPELLANT



Appeal from a judgment of the Circuit Court for Waukesha County: Harold J. Wollenzien, Judge.

Petition to Review Denied.

Scott, C.j., Voss, P.j., and Brown, J.

The opinion of the court was delivered by: Scott

On Richard G. Palmer's first day of work for Evans Brothers Company, he was seriously injured when he became pinned between a floor cleaning machine and a truck. Surgical repair of Palmer's internal injuries left extensive scars on his torso. An examiner for the Department of Industry, Labor and Human Relations found that Palmer was entitled to $14,176.50 in compensation for potential wage loss because of his disfigurements; the Labor and Industry Review Commission affirmed the examiner. Palmer appeals from a circuit court reversal of the Commission. The issues are whether the Commission reached a reasonable legal Conclusion when it decided that Palmer's scars would "occasion potential loss of wage" within the meaning of sec. 102.56, Stats. (1975), and whether the Commission correctly calculated the amount of Palmer's award pursuant to sec. 102.11(1) (g), Stats. (1975). *fn1 Because we have determined that the Commission's legal Conclusion was reasonable and that the Commission fixed the correct ceiling on Palmer's award, we reverse the trial court.

Palmer was seventeen years old at the time of the accident in June 1977 and was working for Evans Brothers during the summer vacation before his senior year in high school. It is undisputed that the accident left Palmer with numerous scars. The Department hearing examiner found that Palmer's injury and the related surgery resulted in the following permanent disfigurement:

first, a 48 centimeter long whitish-pink surgical scar extending from [the notch at the center of Palmer's collarbone to well below his waist]; a 15 centimeter long left transverse surgical scare [at the level of Palmer's naval] which is reddish in appearance; third, a 14 centimeter long right subcostal scar [at the base of Palmer's rib cage] which is reddish in appearance; fourth, a pinkish-brown, irregular depression, measuring 2 inches long, 3/4 of an inch wide and 5/8 of an inch deep, located just above and to the right of the right subcostal scar; fifth, a pinkish-brown, irregular depression approximately 3/4 of an inch in length located just below the right subcostal scar; and sixth, a raised irregular pinkish scar on his right arm approximately 1 inch in length.

The examiner found that when Palmer wears a short-sleeved shirt, only the right arm scar and a portion of the scar that begins at the collarbone are visible. The examiner further found that when Palmer is shirtless, "all the scarring . . . is both visible and noticeable."

Palmer graduated from high school in June 1978, worked for more than one year as night manager for a fast-food restaurant and then became employed as a carpet installer. In January 1980, he was laid off from his carpet installation job. In March 1980, Palmer began his own carpet installation business. The examiner found that Palmer's work involves substantial contact with the public. Palmer typically wears a short-sleeved shirt while at work; during hot weather, he works shirtless.

Given the various shapes, colors and textures of Palmer's scars and the substantial public contact that his present work requires, the examiner concluded that Palmer's disfigurement "will probably occasion potential loss of wage" and fixed compensation at $14,176.50.

Evans Brothers appealed to the Commission, which affirmed, and then to the circuit court. The circuit court concluded that the Commission's decision was not supported by credible and substantial evidence and reversed. The court noted that Palmer's actual wages had risen steadily since the accident and that a rehabilitation counselor had testified Palmer would not experience any wage loss due to his disfigurement.

The disfigurement statute in effect at the time of Palmer's accident read:

If an employe is so permanently disfigured as to occasion potential loss of wage, the department may allow such sum for compensation on account thereof, as it deems just, not exceeding his average annual earnings as defined in s. 102.11.

Sec. 102.56, Stats. (1975).

The first issue before us is whether the Commission erred in concluding that the scars on Palmer's torso and arm would "occasion potential loss of wage" within the meaning of sec. 102.56, Stats. (1975). We ...


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