I represent an injured union worker that suffered a serious injury when the piston from the jackhammer he was operating came dislodged and went into his eye, shattering his orbital bone and causing a condition called mydriasis, or a “blown pupil.” Traumatic mydriasis can occur in cases of head injury or eye orbit trauma when the iris sphincter (the muscle responsible for closing the pupil), or the nerves controlling it, is damaged reducing or eliminating consensual reactivity to light. This is what the condition looks like.
It goes without saying that this type of injury is serious. In the workers compensation setting a claimant is entitled to wage loss benefits, medical benefits, specific loss and also scarring and disfigurement benefits. The Pennsylvania Workers’ Compensation Act provides for the payment of disfigurement benefits, not to exceed 275 weeks, “”for serious and permanent disfigurement of the head, neck or face, of such a character as to produce an unsightly appearance, and such as is not usually incident to the employment.” Significantly, the right for disfigurement of the face due to scarring of an eye may exist in addition to an award of benefits for specific loss of the eye.
In Pennsylvania, the workers’ compensation judge (“WCJ”) has the discretion to determine the amount of an award for disfigurement and to award benefits up to a maximum of 275 weeks, based upon a subjective evaluation of the extent of the disfigurement. The prudent practitioner will present both photographic and live evaluation of his client’s disfigurement to the judge, as the WCJ deciding the case must view the disfigurement to determine if the burden of proof has been met.
It is important to note that an award in a disfigurement case is subject to appellate review by the Workers Compensation Appeal Board (“WCAB”) because it involves a mixed question of law and fact. The Board, therefore, has the authority to modify a disfigurement award as justice requires bringing the award within the range that most WCJs would select. However, it is not the WCAB’s function to set the standard for disfigurement cases, but rather to monitor the WCJs to make certain that each award is consistent with what a majority of the judges in the Commonwealth would grant under similar circumstances.
A review of three cases decided the WCAB place the expected value of a “blown pupil” in the 100 weeks of benefit range. The WCAB has consistently enhanced awards from WCJs that fell short of the 100 week mark and indicated in one case that “most judges would award… 90 to 110 weeks of benefits for such [disfigurement].”
Because of the intricacies in presenting a disfigurement case before a workers compensation judge, and the distinct possibility that the award may be lower than “what most judges would award,” necessitating an appeal, injured workers would be best advised to discuss disfigurement claims with an experienced workers compensation attorney.