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The Pennsylvania legislature is considering House Bill 930, a proposed amendment to the Pennsylvania Workers’ Compensation Act (the “Act”). If passed, the proposed amendment would result in two substantial changes to Pennsylvania’s compensation for disfigurement benefits. First, the Act’s scope of coverage would expand from the limited regions of the head, neck, or face, to encompass the entire body. And second, the maximum duration of benefits would increase from 275 weeks to 400 weeks. Notably, the proposed amendment would not apply retroactively; it would only apply to injuries sustained on or after the effective date of the amendment (60 days after approval by the Governor).
While the legal standard for disfigurement benefits would remain unchanged, the proposed amendment may significantly impact employer and insurer liability. The extension of disfigurement benefits from 275 to 400 weeks (an over two-year lengthening) will increase liability. For example, a maximum disfigurement award of 275 weeks at the 2023 maximum compensation rate of $1,273.00 per week would total $350,075.00. If HB 930 is approved, the maximum disfigurement award of 400 weeks at the 2023 maximum compensation rate of $1,273.00 per week would total $509,200.00.
Disfigurement benefits for the maximum duration are awarded in only a limited number of cases, but it should be noted that the proposed amendment opens the door to a 30% increase in liability.
More uncertainty lies with the expansion of bodily regions covered by the proposed amendment, as a workers compensation judge (“WCJ”) has no precedent or guidance to reference in assessing the duration of benefits appropriate for compensable disfigurement of specific bodily regions. There is no written standard for the appropriate duration of compensation for each type of disfigurement.1 Experienced attorneys, however, often research prior decisions and argue that a case presented is similar to a past reported decision so that that the prior award is instructive in the instant case. Obviously, this strategy would not be available when addressing disfigurement benefits for “new“ body regions; if the proposed amendment becomes law, then confusion in this area is therefore to be expected.
Ambiguity would only be compounded on appeal. The Workers Compensation Appeal Board (“WCAB”) has the statutory authority to review all appeals from a WCJ award. The WCAB scope of review allows for the modification of the amount or duration of a WCJ award “as justice may require“ based upon the WCAB’s actual observation of the disfigurement. But, this authority is limited to the cases where the WCJ has capriciously disregarded evidence and entered an award significantly outside the range most judges would select.2 Before the WCAB can increase or decrease a disfigurement award, it must explain why the judge’s award is outside the range of what most judges would award for a similar disfigurement.3 Without a reference point for what most judges would award, the WCAB will likely struggle to modify disfigurement benefits awards, leading to even further uncertainty.
One way in which employers or insurers may address the expected ambiguity is to argue that a disfigurement that is not visible is not compensable; a disfigurement is not unsightly if it would be typically or easily concealed by one’s clothing. The success of such an argument is questionable but may be supported by early disfigurement case law. The original Act of 1915 contained no provision for the payment of compensation for disfigurement. The Act’s current disfigurement language was added with an amendment to Section 306 (c) in 1921: “serious and permanent disfigurement of the head, neck or face, of such a character as to produce an unsightly appearance.”4 The WCAB interpreted “head or face” to include some portion of the body below the point of the chin and above the clothing line, so that disfigurement immediately under the chin, noticeable and apparent in a person ordinarily dressed was a disfigurement under the Act.5
While the disfigurement benefits provided in the proposed amendment may impact the liability of the employers and insurers, disfigurement only arises in a limited number of Pennsylvania’s approximately 162,000 annual work injuries. At the same time, the proposed amendment clearly has potential to increase benefit liability and impact the proper establishment of reserves for compensable claims. Chartwell Law will continue to monitor this proposed amendment and provide further updates, as necessary.
For reference, the proposed amendment reads:
Section 1. Section 306(c)(22) of the act of June 2, 1915(P.L.736, No.338), known as the Workers' Compensation Act, is amended to read:
Section 306. The following schedule of compensation is
hereby established:
* * *
(c) For all disability resulting from permanent injuries of the following classes, the compensation shall be exclusively as follows:
(22) For serious and permanent disfigurement of [the head, neck or face] the body, of such a character as to produce an unsightly appearance, and such as is not usually incident to the employment, sixty-six and two-thirds per centum of wages not to exceed [two hundred seventy-five weeks.] four hundred weeks. Disfigurement benefits paid to the injured worker shall be made separate and apart from total or partial disability. A claimant is not precluded from collecting both total or partial disability benefits and a disfigurement benefit simultaneously.
SECTION 2. THE AMENDMENT OF SECTION 306(C)(22) OF THE ACT SHALL APPLY TO INJURIES SUSTAINED ON OR AFTER THE EFFECTIVE DATE OF THIS SECTION.
SECTION 3. THIS ACT SHALL TAKE EFFECT IN 60 DAYS.
1 The prior practice“standard” of ten benefit weeks per inch of a linear scar was rejected in General Motors Corp. v. W.C.A.B. (McHugh) 845 A.2d 225 (Pa. Cmmw. Ct. 2004).
2 Hastings Industries v. W.C.A.B. (Hyatt) 611 A.2d 187 (Pa. 1992).
3 City of Pittsburgh v. W.C.A.B. (McFarren), 950 A.2d 358 (Pa.Cmmw. Ct. 2008).
4 77 P.S. § 306(c)(22).
5 See Gerlach v. Belmont Auto Trucking Company, 14 Dept. Rep. 325 (1928) at p. 500 of the Workmen’s Compensation Law of Pennsylvania, by William A.Skinner, vol,. 1, 4th ed., George T. Bisel Co. Philadelphia, PA 1947.
