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Published: January 27, 2009
Author: Troy Thompson
On January 23, 2009, the Wisconsin Supreme Court, in Dane County v. LIRC/Graham, 2009 WI 9, decided that worker’s compensation disfigurement benefits are not limited to visible burns, scars and amputations but can include an impairment that significantly affects the appearance of a person, including some, but not all, limps. Prior to this decision, there was some dispute whether a limp constituted a disfigurement under the Wisconsin Worker’s Compensation Act.
The majority of the Court decided that limps that are merely a motion probably are not compensable. (Justice Abrahamson, who wrote a concurring opinion, disagreed with the majority’s analysis in that regard.) Conversely, the majority decided that a limp may be compensable when the claimant’s legs look imperfect and asymmetrical on an area of the body that is exposed during the normal course of employment.
When a limp is connected to a visible imperfection that is exposed during the normal course of employment, one must analyze whether the remaining requirements of Wis. Stat. § 102.56(1), relating to compensable disfigurement claims, are met. Those requirements are:
- Permanent disfigurement;
- That must “occasion potential wage loss . . . tak[ing] into account the age, education, training and previous experience and earnings of the employee, the employee, the employee’s present occupation and earnings, and likelihood of future suitable occupational change;
- The disfigurement must occur on an area of the body that is exposed during the normal course of employment; and
- “The appearance of the disfigurement, its location, and the likelihood of its exposure in occupations for which the employee is suited” must be taken into account in order to determine whether to award compensation
Part of the State’s rationale for making worker’s compensation disfigurement benefits available to injured workers is the State’s assumption that employers discriminate against injured workers with a disfigurement. It may be time to re-evaluate the need for such benefits in light of the several federal, state and local anti-discrimination laws that prohibit employers from discriminating against job applicants and employees on the basis of disability.
In any event, the Court’s decision in the Graham case may result in more disfigurement claims by claimants involving an alleged limp. However, insurance carriers may be able to deny a good number of those claims applying the existing statute requirements described above.
Troy D. Thompson is a partner at Axley Brynelson, LLP in Madison, Wisconsin, practicing primarily in all facets of traditional labor and employment, litigation and other business matters. For more information, contact Mr. Thompson at 608.283.6746 or tthompson@axley.com.
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