Obtaining Workers’ Compensation benefits for a scar
Years ago, a client came in with a fairly minor, if you can call it that, amputation to his thumb. He had cut the tip of his thumb off while at work. He came to our firm, seeking advice as to what benefits to which he might be entitled. His benefits involved a specific Workers’ Comp benefit called specific loss. He would be compensated based upon how much of his finger or thumb he lost. However, during our meeting, we noticed a large scar on his neck and asked him about it. Four months later we negotiated a Workers’ Comp settlement based upon a similar benefit, called a disfigurement benefit, for $47,000. As you can see, disfigurement benefits are a rather important and often unexplained part of the Workers’ Compensation Act.
Disfigurement is defined by Section 306(c)(22) of the PA Workers’ Compensation Act, and includes any scarring or disfigurement about the neck and upper chest, as well as the face and head. Examples might be a scar from surgery to one’s neck, or potentially an accident which caused lacerations or burns to the face. The benefits are based upon relatively loose interpretation of the Workers’ Compensation act. In other words, the way to value a scar is not necessarily set in any case or in the Act itself.
Generally speaking, injured workers, known as claimants, are entitled to a number of weeks of benefits based upon the appearance of the scar or disfigurement. However, the length of the scar is not the only thing that is taken to into account. The discoloration, width, and placement of the scar are also factors to consider. For a claimant to get paid under the system for a scar, however, usually what is required is an attorney to file a petition to have a judge evaluate the appearance of the scar. This is one benefit which is almost never offered to the claimant voluntarily by an insurance company. In fact, in it is quite uncommon to see any injured worker paid on a scar without being told about it through counsel that they may have hired.
Once an attorney files a petition to have the scar evaluated by a judge, the attorneys who are involved in the case, one for the claimant, and one for the employer and its insurance carrier, have the ability to come to some type of an agreement on the amount of weeks which shall be paid. If they do, then the claimant’s preinjury average weekly wage and corresponding Workers’ Compensation rate, i.e. the money they would receive if they were out of work, is multiplied by the amount of weeks agreed-upon. The parties also have the ability to allow the judge to make his or her own determination as to the value of the disfigurement, and the parties can either live with that number or appeal it.
If the parties appeal the judge’s decision, then this is the one area of the law in which the Workers’ Compensation Appeal Board actually has what is called de novo jurisdiction. This means that the Appeal Board has the ability to make its own determination as to what the scar is worth, and essentially overrule the judge entirely. It’s controversial as many judges do not like the fact that the Appeal Board has the ability to completely override the original determination, but the Appeal Board is the entity which sees all of the awards all across the state, and tries to bring the awards in line across all of the judges.
To value the scar a judge will usually put on the record his or her observations about the scar while viewing it in the courtroom. This is a rather awkward, but necessary step. Judges will usually first view the scar from about 12 feet away to see if it is visible at all. They will then describe what they can see from that distance on the record. They may move within 6 feet of the claimant and describe the scar again. They may note that it is more unsightly up close, for example. They will also make notes concerning the discoloration and the width of the scar.
Some judges will value scars based on a number of weeks per linear inch. There are no cases which codify this and it is not listed directly in the Act. Thus, a 3 inch scar, which may be severely discolored and wide might be valued at 15 weeks per linear inch. Or conversely, a scar which is difficult to see and has very little discoloration may be valued at 5 or less weeks per inch. If someone’s Workers’ Compensation rate is $600 per week and the Judge says it is worth 10 weeks per inch, the scar’s total value would be 3 inches times 10 weeks times $600 per week, or $18,000. So you can see this range as valued by judge is fairly important. In this same example the same scar valued at 15 weeks per inch would be worth 45 times $600 or $27,000. And once again, if the parties are not happy with how the judge values the scar, one or both parties can appeal to the Workers’ Compensation Appeal Board and get another evaluation.
A few other factors must be resolved before the parties can begin discussing how many weeks this scar is worth. First, it must be considered permanent, which is generally just defined as six months old. It must be also be unsightly. For example, if the scar is barely visible from even a few feet away a judge could potentially say that the scar is not unsightly and therefore, it is not compensable. However, this is fairly rare when it comes to surgical scars. It has to be not usually incident to employment, which is true for most people. And finally, there must be an agreement or a judicial finding that the scar is directly related to the work injury. This factor can sometimes be difficult to establish. For example, if someone hurts their neck and the insurance company only accepts a strain and sprain of the neck, the claimant may have to prove that the surgery he had which caused a scar is also related to the work injury.
Disfigurement benefits are somewhat of an unusual benefit for a claimant to receive. However, even more unusual is for a claimant to receive these benefits voluntarily from an insurance company. We are quite certain that there are many people who did not get any type of legal representation regarding their workers’ compensation benefits, and may have never been compensated for scars caused by their work injuries.
Claimants should also be aware that disfigurement benefits are technically not payable until after that same injured worker stops receiving temporary disability benefits for being out of work. This means that if you are out of work because of a work injury, but also have a scar claim, the scar benefits will usually only be awarded after your disability benefits end. There are other factors to consider related to disfigurement benefits, but this article is meant to be a summary overview for anyone who may potentially be entitled to this type of benefit. Like most benefits under workers’ compensation, the issues are technical, and nuanced, and are best handled by a certified specialist workers’ compensation attorney.