Permanent Loss of Function, Scarring & Disfigurement Benefits
Work injuries happen all the time. In fact, there were almost 3 million nonfatal work injuries and illnesses reported by private industry employers in 2018, according to the U.S. Bureau of Labor Statistics.
In some workplace accidents, an employee is not only injured but suffers permanent loss of function, disfigurement or scarring to the hands, neck or face. Under M.G.L. c.152, § 36, an employee who suffers one of these injuries might be entitled to additional workers’ compensation benefits.
You can read the text of the law here. The important thing to keep in mind, however, is that the injury must be permanent. That means that a worker who suffers a small injury that is expected to improve over time or a scar that will fade away will probably not be entitled to additional workers’ compensation benefits. Workers who are undergoing medical treatments or who are scheduled for surgery that could improve their condition might not qualify for additional benefits, at least at the present moment. The law typically requires a six month wait between the injury or a surgery, and any compensation payments for their scarring, disfigurement, or loss of function benefits.Qualifying for § 36 Workers’ Compensation Benefits for Permanent Loss of Function, Scarring and Disfigurement
If a worker is injured on the job and suffers a permanent loss of function of a certain body part such as an eye, arm, hand or leg or is scarred or disfigured on his or her hands, neck or face, he or she might qualify for additional workers’ compensation benefits.
Workers who suffer disfigurements other than scarring—like a limp or some type of impairment that requires the use of a cane or prosthetic—also might qualify for additional compensation.
Workers who perform hazardous job tasks are most at risk for suffering these types of serious, debilitating work injuries. Construction workers, welders, firefighters, factory workers and others who work with and around dangerous machinery and chemicals are most at risk.
Some examples of work accidents that could cause a worker to sustain an injury that results in permanent loss of function, scarring or disfigurement include:
- Accidents involving heavy machinery or power tools
- Accidents involving toxic chemicals or other hazardous substances
- Explosions or fires
- Falls from scaffolding or other elevated surfaces
- Equipment or other items falling onto a worker
In support of his or her claim, the worker will need to provide various pieces of evidence, including a report from a physician that describes the injury in detail and provides information on:
- The length and width of any disfigurement or scarring
- Any discoloration
- The percentage of loss of function
- The estimated duration of impairment
- Any other relevant factors
As the experienced workers’ compensation attorneys in Boston at the Law Offices of Jeffrey S. Glassman, LLC can explain, M.G.L. c.152, § 36 provides a list of specific injuries that qualify for additional benefits, as well as the formula to be used to calculate the amount of compensation owed:
Eye injuries on the list include enucleation, which is the surgical removal of an eye that leaves the eye muscles and orbital contacts intact; the total loss of use of one eye and an injury to one eye that results in a loss of binocular vision that is not correctable to 20/70 normal vision in that eye. The formula for calculating benefits for enucleation or total loss of use of one eye is the State Average Weekly Wage, or SAWW, at the date of injury multiplied by 39.
The Massachusetts Division of Unemployment sets the SAWW on a yearly basis. On Oct. 1, 2019, the agency set the SAWW in Massachusetts at $1,432. Your work injury attorney will be able to tell you the current rate.
For loss of hearing in one ear, benefits are calculated by multiplying the SAWW by 29. If there is hearing loss in both ears, the SAWW at the date of injury is multiplied by 77.
For amputation or permanent, total loss of use of the dominant arm, benefits are calculated by multiplying the SAWW by 43. If the injury is to a non-dominant arm, the SAWW is multiplied by a factor of 39. If both arms are lost in a workplace accident, the SAWW at the time of the accident is multiplied by 96.
For amputation or permanent, complete loss of use of the nondominant hand at the wrist, benefits are calculated by multiplying the SAWW at the date of injury by 34. For amputation of the nondominant hand at the wrist, the SAWW is multiplied by 29, and for amputation or permanent, total loss of both hands at the wrist, the SAWW is multiplied by 77.
This is only a partial list of specific injuries outlined in M.G.L. c.152, § 36, but it demonstrates the complexity of these types of workers’ compensation cases. Additional benefits are also available for work injuries that cause a worker to experience a total loss of sexual function, sense of smell and sense of taste.
The Massachusetts Executive Office of Labor and Workforce Development (EOLWD) recommends that all claimants speak with a legal team that regularly handles workers’ compensation cases to assist with the process. Many workers’ compensation cases that involve permanent disfigurement or scarring require the parties to go through a conciliation process before a conciliator provided by EOLWD.
Claimants who are unrepresented and not familiar with the complex regulations are at a serious disadvantage. The employer’s workers’ compensation insurance carrier will provide an attorney to defend a decision to deny benefits at every step in the process, and that defense attorney will be familiar with the system. They may also have you examined by their own doctor to obtain a measurement or calculation. The insurance company’s doctor may not provide calculations that are as favorable as those your own doctor may provide.
Insurance carriers are notorious for focusing on their own bottom lines and arguing that a claimant’s injury or impairment isn’t as serious as he or she says it is. If they can pay less on a scarring, disfigurement, or loss of function claim, they will. It is important
Contact the Law Offices of Jeffrey S. Glassman, LLC today at (617) 367-2900 or using our online form for a free and confidential consultation and to learn about how our workers’ compensation attorneys can help you with a permanent loss of function, scarring or disfigurement claim.