Beauty is in the Eye…..a Delaware Roundtable on Disfigurement

       

The exquisite little girl above is Lara, Sheldon Saints' daughter.  She is a gorgeous child, with a pedigree of beauty....  Her aunts, Shel's sisters, were both beauty queens back in the day.  Sheila Saints and Shawna Saints....if you grew up around here and are my age, those names are perhaps familiar.  Lara's Dad was an Abercrombie & Fitch model....before there was an A&F.  How he turned heads on the UD campus!   Which brings me in a roundabout way to today's legal topic.

A few weeks ago I sent out a call for some discourse among our most seasoned comp practitioners on the subject of disfigurement. Both the claimant and the defense bar, that is, and asking for an offer of practical advice while posing the direct question: "Does the whole one week per inch rule still apply?" Here is what I got:

Sheldon Saints:  Well, I always told clients that they could expect an offer of about  1 ½  weeks of benefits per inch of scar, depending on location and severity, with the exception of carpal tunnel surgery where it would probably be 1 week per inch.  I'm not sure that this doesn't still have some validity for scars that are not "wide" or offensive. (I just settled a 15 inch abdominal scar for 27 weeks).

Kris Starr: As a work comp hearing officer I wrote a multiple permanency and disfigurement opinion about a stonemason who suffered quadriplegia from a bad fall.  I included permanencies/disfigurements for all sorts of things like catheters, tracheostomy, etc.  It was the only time in the 300 plus opinions that I authored that the Bagley calculation resulted in a higher disfigurement award.

Mike Weiss:  The case Kris is referring to is Emmitt Deascanis v. Deascanis Masonry, IAB# 1220338 (4/19/05). Mr DeAscanis was a proud, strong 71 year old stonemason at the time of his accident. He fell 25 feet from scaffolding, suffering a C7-T1 fracture which left him as a quadriplegic. In addition to his disfigurements due to scarring, atrophy and body changes he also had a permanent catheter in his leg, a permanent trach tube in his neck and a permanent PEG tube in his abdomen. His wife was also an incredible lady who testified on his behalf at the Board. (And the hearing Officer and the Board were quite sympathetic!)

Larry Kimmel: In my experience, the Board has been all over the place in disfigurement awards.  Some have been similar to the "one week per inch" saying.  Others have been much larger.  I think disfigurement to the face (especially to a woman) is much more than a week per inch.  Whereas a one inch scar on the foot is probably not more than an inch per week.  Also tough to say because some scars are linear and others are crooked and more obvious (raised, etc.).  I usually rate a scar higher for a woman than for a man.

I think the Board has been all over the place for altered gait as well.  I have seen 50 weeks for some altered gaits, and 6 weeks for others.  Just hard to get a feeling of what the Board is awarding.  I usually try to settle the disfigurement cases, as the Board is too inconsistent and my clients want to know how much money they will be receiving.

I attach a recent disfigurement award that I just received 2 weeks ago (although it was decided back in April 2011), Jayendra Patel v. Liberty Petroleum, IAB# 1302558 (4/12/11).  My associate, Sean, handled this disfigurement hearing for me.  The scar on my client's face was very minor, but the Board awarded 8 weeks (pretty big award for a very small scar).  My client had significant impairment to his leg, and the Board awarded 50 weeks.  My client has a limp, yet the Board only awarded 6 weeks for the altered gait.  So tough to figure out.

Linda Wilson: When the old guys were on the Board, the Board definitely followed the one week per inch for standard scarring.  I have noticed that is not really the case anymore, perhaps because the newer members do not have an institutional memory of the "rule".

Mike Sensor: I believe that disfigurement remains an equitable remedy (the only one available under the WC Act) and that the "inch-a-week" rule is not hard and fast. For example, an inch-long scar on the calf can be much less disfiguring than an inch-long scar on the face. Add to that complications that can arise from the healing of a scar (redness, keloid formation, etc.) and it's clear to me that an inch isn't always an "inch". I am honored, by the way, that you consider me a leader in Delaware WC practice.

Keri Morris:   Not a moment that I am proud of, but Jon O'Neill and I had a case 18 months ago.....Claimant, with an altered gait, was awarded 40 weeks of benefits.

Maria Newill:  I do think there is a general rule of thumb of one week per inch but then you add or subtract depending on the visibility and offensiveness which takes into consideration male versus female (yes, I give women more than men sometimes), coloring compared to surrounding pigmentation, smooth versus indented versus raised, and location (face versus foot).

Chris O'Connor:  I haven't had any disfigurement decisions for quite a while now because I settle these claims.   I generally make offers based on "one week per inch".  Typically, in order to avoid the aggravation of going through a full hearing, we'll settle just above my offer.  I have found it to be a good starting point.  Counteroffers are often way too high and I'm usually able to whittle down the final number to 2-3 weeks above the "one week per inch" offer.

Jessica Julian: I think an analysis begins with the concept of one week per inch; however other factors then impact the value.  I will start with a measurement and then consider the width, discoloration and location.  I can't tell you the last time I took a disfigurement to the Board for their determination.  I like having other attorneys in my office review the photos so it gives me a range of what I can expect at the Board.

I thank all of my colleagues above who have crafted a variety of "must read" options on how to value a disfigurement claim.  I, too embrace the "settle early and often" philosophy as I find the Board to be pretty unpredictable.  The only facial disfigurement I ever defended based on the proposition that the scarring in eye area on what I would call "sporty outdoor girl" (a 20 or early 30-something athletic blonde female) was not visible, let alone offensive,  commanded an award of 28 weeks. Ouch!   And this was for a linear scar that rested rather comfortably in a number of crow's feet lines that were clearly the product of "sun and wind on face".  Then there was the 75 week offer I turned down for one of my clients based on my belief I had a 150 week scar.  The award? 43 weeks.  Ouch again! And like many of the practitioners above have pointed out, it is man versus woman.  And in the two examples I have cited for you, it was young attractive woman (notwithstanding the fact she needed the best moisturizer in the Lancome display case) versus tired, aged, wrinkled old man (who was missing most of the muscle mass in one leg).  So that's why I settle, pretty much every time.

I, too, have a case to share.  John Morgan v. Danella Construction, IAB# 1205692 (7/19/04).  Mr. Morgan was my client and we are friends to this day.  He was injured in an explosion that tore off one arm and a foot.  For reasons which I have never understood, Stokes Nolte's client wanted a hearing on the disfigurement.  This unfortunate man who had catastrophic burn scarring on his torso in addition to amputations was compelled to remove most of his clothing to permit the Board inspection.  The award: 300 weeks for loss of left arm, 192 weeks for loss of right foot, 150 weeks for burn scarring to the chest and flank area (did I mention a nipple was missing?), 150 weeks for burn scarring on the back, 75 weeks for burns to the face and 84 weeks for skin grafts to both legs.

To conclude, here are a few propositions you can use as take-aways:

   The "one week per inch" rule is alive and well-for linear or incisional scarring without complication or keloid formation

   Settle early and often-- because as Forrest Gump's Mama oncesaid-"Life is like a box of chocolates, you never know what you're' gonna get" (if you go to the Board)

   Woman are entitled to more than men... in this and in all other things

   Gnarly old men don't do well at the Board no matter what injury has befallen them

   Facial scars, burn scars and missing body parts command the highest awards

   And let me add one more item for your consideration-do not argue that their scar from a work injury isn't worth anything because they have tattoos.....our Board is conservative....but they are not that conservative.

Irreverently yours,
Cassandra Roberts

Delaware Detour & Frolic   Visit Delaware Detour & Frolic, a law blog by Cassandra Roberts

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