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07/11/83 KENWOOD MERCHANDISING CORPORATION AND

July 11, 1983

KENWOOD MERCHANDISING CORPORATION AND TRANSAMERICA INSURANCE COMPANY, PLAINTIFFS-APPELLANTS,
v.
LABOR & INDUSTRY REVIEW COMMISSION AND CLIFFORD R. WARWICK, DEFENDANTS-RESPONDENTS



Appeal from a judgment of the Circuit Court for Milwaukee County: Harold B. Jackson, Jr., Judge.

Wedemeyer, P.j., Decker and Moser, JJ.

The opinion of the court was delivered by: Moser

Kenwood Merchandising Corporation and its insurer, Transamerica Insurance Company, (Kenwood) appeal from a judgment of the trial court entered September 22, 1982, wherein the trial court affirmed an order of the Labor and Industry Review Commission (LIRC), dated January 15, 1981, which affirmed a hearing examiner's award of permanent partial disability and lost earnings due to disfigurement to Clifford R. Warwick (Warwick). We affirm.

On May 7, 1976, Warwick, while employed by Kenwood, was injured when his right hand was cut by the blade of a table saw. As a result of this accident, Warwick's right thumb, index and middle fingers were ampulated. Following several surgeries Warwick returned to work at Kenwood; however, he left Kenwood in February, 1977, because it was experiencing financial difficulties.

Following course work in accounting, Warwick obtained a position as a teller with Elm Grove Savings & Loan Association. Warwick advanced into a management training program. While in training, Warwick accepted a position as branch manager of Mitchell Savings & Loan. At the time of the hearing, Warwick was making $13,200 and benefits at Mitchell.

A worker's compensation hearing was held March 19, 1980. Prior to this hearing, Kenwood's insurer paid Warwick $2,458.88 as temporary total disability and $7,378.08 as permanent partial disability. Following the hearing, the examiner awarded Warwick $5,770 as lost earnings due to disfigurement and an additional $5,717.10 as permanent partial disability.

Kenwood filed a petition for review with the LIRC which affirmed the examiner's findings and order on January 15, 1981. On February 17, 1981, Kenwood filed a summons and complaint with the circuit court seeking review of the LIRC's order. The trial court affirmed the LIRC's order on September 7, 1983. Judgment was entered September 22, 1982, from which Kenwood appeals.

On appeal Kenwood raises the following issues:

(1) whether there was sufficient evidence established to support the finding that Warwick was entitled to a loss of earnings award due to disfigurement pursuant to sec. 102.56, Stats. (1975);

(2) whether the LIRC is authorized to make an award for both permanent partial disability and disfigurement for the same body member;

(3) whether sec. 102.56, Stats. (1975), is unconstitutional because it denies a party to a worker's compensation claim due process;

(4) whether sec. 102.56, Stats. (1975), is unconstitutional because it represents an unlawful delegation of power under article IV, section 1 of the Wisconsin Constitution; and,

(5) whether there was credible evidence established to support the additional award of ...


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