In my post of 8/15/13 (Beauty is in the Eye….. A Primer on DE’s Bagley Analysis), we took an in-depth look at the Bagley standard for disfigurement awards. You may vaguely recall that Bagley is that case that more or less examines that portion of our disfigurement statute, 19 Del. Code Section 2326(f), [enhanced version available to lexis.com subscribers], allowing that when a disfigurement is to a body part for which there is also a permanent impairment, the claimant is entitled to the higher of either (1) the amount owed for the disfigurement without regard to loss of use, or (2) the amount due for loss plus 20% of the amount due for impairment. Bagley does not come up very often, but when it does, it seems to create a bit of confusion for even the most seasoned practitioner….. with the possible exception of Walt Schmittinger, who brings us our case du jour.
I always love hearing from Walt, who offers the following:
Haven't had anything interesting for you in a while, so I wanted to pass this one along. Disfigurement claim for an unusual injury - TKR [total knee replacement] resulting in systemic nickel poisoning. The peculiar legal issue is how the Bagley analysis applies where there are two prior permanency claims (PPD to the lower extremity for the TKR as well as PPD for the skin due to the nickel poisoning). The Board agreed with me that the permanencies had to be combined in order to establish the maximum disfigurement scale under Bagley and 19 Del. C. § 2326(f).
Probably not a case you'll need to rely on very often, but good to know it's out there for the next time it comes up...
This is what I call sexy. You have a Bagley issue; you have a skin permanency on top of a total knee permanency; you have systemic nickel poisoning. Factually, this claimant received a whopping 71% impairment to the right leg and a rarely-seen 20% impairment to her skin. That is a total permanency recovery of 237.5 weeks. Taking the Bagley standard of “perm plus 20 per cent” you have a disfigurement scale of 0 to 285 weeks. Wowza.
So our claimant here was awarded 95 weeks for the right leg lesions (we have lesions, too?) and 19 weeks for the surgical scar, for a total of 114 weeks. Oh, and lest we forget the left leg which was non-surgical, the claimant received 30 weeks for those lesions (man, there were apparently lesions everywhere). Total award for bilateral lower extremity scarring is 144 weeks. The attorney’s fee on the disfigurement was $2500.00.
The case is Pamela Banning v. UPS, IAB#1310800 (11/14/13).
Well done, Walt, well done! All I can say is I hope we won’t be seeing this gal in a mini-skirt anytime soon.
Irreverently yours,Cassandra Roberts
Visit Delaware Detour & Frolic, a law blog by Cassandra Roberts
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