Facial Disfigurement Awards in New York Workers’ Compensation Claims

When a NY workers’ compensation claimant suffers an injury which results in permanent scarring of the face, head, or neck, that claimant may be entitled to compensation in the form of a scheduled award under WCL §15(3)(t). According to the statute, “The  board  may award  proper and equitable compensation for serious facial or head disfigurement…” including scarring which extends down to the area of the neck. The maximum award for such disfigurement is $20,000.

Interestingly, this type of award is made at the discretion of the Board, and judges are not bound to the opinion of medical experts. See Hildreth v. Ford Motor Co., 14 A.D.2d 963, 221 N.Y.S.2d 16, 1961 N.Y. App. Div. LEXIS 7911 (N.Y. App. Div. 3d Dep’t 1961).  How does this work? Normally, a claimant will attend a hearing and the judge will personally view the scarring, as well as consider any arguments from the parties.

The judge may also consider photographic evidence of the claimant taken before the disfigurement occurred, so as to make a before and after comparison. The judge will then make a decision regarding the proper amount of the award, whether it be nothing, the statutory maximum of $20,000, or anything in between. This leaves broad discretion in the hands of the judge, although the award should be justified by an elucidation of “the nature and extent of the disfigurement”. Sorgi v. Siegfried Constr. Co., 17 A.D.2d 469, 235 N.Y.S.2d 410, 1962 N.Y. App. Div. LEXIS 6140 (N.Y. App. Div. 3d Dep’t 1962). Alternatively, the parties may stipulate to an award for facial disfigurement so as to avoid the possibility of an appeal. If there is an appeal of the trail judge’s decision, oral arguments may be scheduled on the matter, in which case a three-judge panel will convene to inspect the disfigurement, hear arguments, and render a decision jointly.

The primary focus of a decision regarding an award for facial disfigurement is the presumed loss of wages as a result of that scarring. Gallman v. Walts Tree Service, Inc., 43 A.D.2d 419, 352 N.Y.S.2d 516, 1974 N.Y. App. Div. LEXIS 5667 (N.Y. App. Div. 3d Dep’t 1974).  Accordingly, if a claimant has a public-facing position such as bank teller or teacher, a judge may find a greater loss of wages versus a claimant who would not expect her physical appearance to impact future earnings. This puts the parties in the odd position of arguing over a claimant’s physical appearance, and whether or not her career has been diminished as a result of the disfigurement. In practice, you can also expect a claimant’s representative to play on a judge’s sympathy with arguments about age and marriageability.

It is worth noting that WCL §15(3)(t)(3) deems two or more scars resulting from the same accident to be one single disfigurement. On the other hand, multiple disfigurements caused by distinct accidents may entitle a claimant to separate awards for each, based upon substantial evidence. Dziedzic v. Grand Union Co., 369 N.Y.S.2d 564, 1975 N.Y. App. Div. LEXIS 10297, 48 A.D.2d 991 (N.Y. App. Div. 3d Dep’t 1975).  However, pursuant to the Gallman case, since an award for facial disfigurement is based on a presumed loss of wages, a claimant who is classified with a permanent loss of wage earning capacity cannot separately recover an award for facial disfigurement.

Join In the Learning!

Register for our monthly webinars on New York workers’ compensation law, by clicking here. Sign up for our monthly newsletter here.

The New York Handbook

Our webinar series was designed as a complement to our New York Workers’ Compensation Handbook. The Handbook is written in “plain English” and provides a resource for risk managers and claims professionals who need a complete and easy-to-use reference guide for handling New Jersey claims.

Digital editions of our book on New York workers’ compensation defense are available for download (FREE) here:
New York PDF link: bit.ly/nywcpdf
New York ePUB link: bit.ly/nywcepub
New York Kindle link bit.ly/nywckindle

 

 

Tim Kane is an associate attorney at Lois LLC where he defends employers and carriers in New York workers’ compensation claims. Tim can be reached directly at tkane@lois-llc.com or 201-880-7213.