In PA Workers’ Compensation, almost everything has a specific amount of benefit, for a specific period of time. A workers’ comp rate is determined by starting with the Average Weekly Wage (AWW) and using a precise formula. If an injured worker in PA loses a finger, toe, hand, foot, arm or leg in the work injury, he or she is entitled to a certain number of weeks of compensation (depending on which appendage is involved). An injured worker determined to be less than 50% impaired after receiving total disability benefits for 104 weeks is entitled to a maximum of 500 additional weeks of workers’ compensation benefits. These schedules regarding the amount of benefits payable to an injured worker can be found on the website of the Pennsylvania Bureau of Workers’ Compensation, in Section 306.
There is, of course, an exception to every rule. In PA, facial disfigurement is compensable by a payment of up to 275 weeks of benefits, at the discretion of the Workers’ Compensation Judge (WCJ). The disfigurement must be both permanent and “unsightly.” The Commonwealth Court of Pennsylvania recently addressed this issue in the case of Walker v. Workers’ Compensation Appeal Board (Health Consultants), where the Court decided a crooked nose was not “unsightly” and not worthy of any compensation.
In the Walker case, the injured worker fell down steps and broke her nose. The injury to the nose was accepted and she received workers’ comp benefits until she went back to work. Subsequently, she filed a Petition for Reinstatement (treated by the WCJ and the Court, correctly, as to also include a Petition to Review the Notice of Compensation Payable [to add low back to her work injury], since it was the unaccepted injury which allegedly now caused her disability. In this litigation, Claimant also sought facial disfigurement benefits for her nose, which now had small scars and was slightly crooked.
The WCJ denied the Petition for Reinstatement, finding both Claimant and her medical expert not credible (she had not complained of problems with the low back until several months after the injury). For the nose, however, the WCJ awarded 45 weeks of benefits for facial disfigurement. Significantly, before making his finding, the WCJ asked for, and received, pictures of the injured worker before the work injury, since he did not find the damage to the nose to be obvious.
On appeal the Workers’ Compensation Appeal Board (WCAB) affirmed the WCJ on the Petition to Reinstate, but reversed on the award for facial disfigurement. In viewing the injured worker themselves, the WCAB found the nose, while admittedly slightly crooked, was not “unsightly.” As such, under the PA Workers’ Compensation Act, the WCAB found no benefits awardable for the nose.
The Commonwealth Court of Pennsylvania affirmed the decision of the WCAB on both parts. In so doing, the Court noted that the law requires the disfigurement to be “unsightly,” and the fact the WCAB found the nose not “unsightly,” and the fact the WCJ needed before and after pictures to see any difference, is clear evidence the nose was not unsightly.
Considering such a determination should be subjective, I find the decision of the Court plain wrong. The WCAB admitted that the injured worker’s nose was now slightly crooked. It was of no moment to the WCAB that the injured worker considered herself, and perhaps, given the WCJ’s finding, a reasonable person would find her, less attractive than before the injury. The dictionary defines “disfigurement” as, “an appearance that has been spoiled or is misshapen.” How, then, is the damage to the injured worker not compensable? Why does anyone get a nosejob if they do not find their appearance acceptable? According to our esteemed Court, if Jessica Alba suffered a facial injury and came out looking like Rosie O’Donnell, she would not be disfigured. I suppose the Court has a logic for its decision, but if so, it is logic I cannot detect.