State Bar of Wisconsin

“Disfigurement” given broad meaning under disability statute by supreme court

In the absence of a statutory definition for “disfigurement” under state worker’s  compensation law, the Wisconsin Supreme Court gave the term a broad meaning on Jan. 23.

The court concluded in County of Dane v. Labor and Industry Review Commission and Gloria N. Graham, 2009 WI 9, that “disfigurement” is “an impairment that significantly affects the appearance of a person.” The court rejected a narrower interpretation of Wis. Stat. § 102.56 requiring visible burns, scars, and amputations to constitute “disfigurement.”

Reaching this decision, the supreme court interpreted the Wis. Stat. § 102.56 without regard to the Labor and Industry Review Commission’s interpretation. The LIRC had ruled in 1994 that “disfigurement” necessitated burns, scars and visible amputation. But the LIRC reversed itself in this case although the statute had not changed in the intervening years. The supreme court concluded that such inconsistent statutory interpretation provided no guidance that ordinarily obligates a reviewing court to defer to the agency decision.

This decision vindicated the benefits claim of Gloria Graham who slipped and fell while working in food service for Dane County. Graham slipped and fell on a wet floor of the county’s kitchen, twisting her leg behind her back and significantly injuring her knee. Surgery could not restore full use to Graham’s knee, leaving her with a foot-dragging limp, persistent pain, and one leg shorter than the other.

Dane County argued that it would be unreasonable, after 80 years since the Worker’s Compensation Act has been in existence, to add limping to the definition of disfigurement. The county warned that a broad meaning of “disfigurement” will have a profound effect on the number of disfigurement awards and could potentially be extended for the first time to other alterations in the body's movements.

Limiting the scope of the newly defined “disfigurement,” the court insisted that other statutory requirements of the Wis. Stat. § 102.56 must also be satisfied before a claim succeeds.

• The disfigurement must be permanent.
• The disfigurement must potentially depress the employee’s earning power, taking into account factors such as the employee’s age, education, and training.
• The disfigurement must occur on an area of the body normally visible while working. Within this factor, the court warned that “not every limp will satisfy this requirement, as a limp is merely a motion. Here the limp was combined with a foot drag and ‘imperfect and asymmetrical’ looking legs.”
• The disfigurement is apparent to current or potential future employers in occupations for which the employee is suited. In this case, the court noted that one prospective employer asked Graham if she had multiple sclerosis or had suffered a stroke – distinct disadvantages for manual labor.

Chief Justice Shirley Abrahamson concurred, joined by Ann Walsh Bradley. Although she agreed with the conclusion reached by the majority, Abrahamson did not think the court articulated a clear basis to distinguish between a limp that deserves compensation and one that does not (“merely a motion”).

By Alex De Grand, Legal Writer, State Bar of Wisconsin