It is widely known that the Pennsylvania Workers' Compensation Act provides injured workers with wage loss and medical benefits associated with an injury on the job. In certain circumstances, injured workers also sustain permanent disfigurement as a direct result of a work injury, leaving them with constant reminders of the trauma they endured years after their treatment has ended.

Scarring from burns, lacerations and surgical procedures; chipped or missing teeth; discoloration of the skin; and eye amputations or deformities are all examples of this harsh reality. Although damages for emotional distress and pain and suffering are not available to injured workers under the act, a financial award in the form of disfigurement benefits are available to compensate for serious, permanent and unsightly disfigurements attributable to a work injury.

One would assume that severe scars or burns covering an individual's entire body following a work injury would be compensable under the act. Unfortunately, an award for disfigurement benefits only applies to visible deformities on the head, face and neck. In fact, it has even been specifically determined that the lowest part of the "neck" for which such compensation is payable is where the clavicle, scapula and sternum meet, see U.S. Steel v. Workers' Compensation Appeal Board (Gouker), 416 A.2d 619 (Pa.Cmwlth. 1980).

Therefore, if you suffer significant scarring on the torso, legs or hands—areas that are commonly visible outside of the workplace and can cause extreme self-consciousness for a lifetime—you are not eligible to receive any financial award no matter how severe the disfigurement is. If the purpose of the act is to make injured workers as whole as possible following a work injury, it clearly fails to provide the benefits they deserve in this instance.

Moreover, determining the value of the disfigurement can be difficult at times and the process is highly subjective. Once it is proven that the disfigurement is permanent and was directly caused by a work injury, a workers' compensation judge will typically examine the worker from various distances, measure the disfigurement with a ruler to determine its length, and describe the color, size and other characteristics on the record. The highest allowable award by a judge is 275 weeks of benefits depending on the severity of the disfigurement, as in Fullerton v. Workers' Compensation Appeal Board (Gettysburg Foundry Specialties), 761 A.2d 201 (PA.Cmwlth. 2000). Given the subjective nature in determining the value of a scar, it is impossible for judges to rule in uniformity when awarding these benefits.

It must further be noted that the weekly benefit amount awarded on a disfigurement claim is equal to what that person would receive in weekly wage loss benefits. Therefore, a wage earner with a higher compensation rate would obviously receive a higher disfigurement award than one with lower wages for identical scarring. Unlike indemnity or wage loss benefits, an award for disfigurement benefits should not be predicated on what the individual earned prior to the work injury. If judges have the sole discretion in determining the value of the scar, pre-injury earnings should be ignored, and the value of the scar should be based on the unsightly appearance of the scar alone.

Currently, the system regarding disfigurement is unfair. It only compensates accident victims with scars above the clavicle, but other disfigurement can be just as visible to the public and humiliating. Burns, scars and marks on the torso and extremities can be more severe, extensive, stigmatizing and permanent than those on the face and neck. Currently those workers are left with no recourse.

In addition, the subjective system for determining the value and the bias toward higher wage earners makes the system unfair to workers. Lawmakers need to address this arbitrary system and create a process that provides just compensation for the permanent result of an injury suffered in the service of an employer.

Andrew F. Ruder is an associate with Pond Lehocky Stern Giordano and concentrates his practice in the area of workers' compensation litigation.