There are a large number of petitions for permanent partial disability benefits filed each year in New Jersey for scars and serious lacerations. It is important for practitioners to understand that injuries due to scars are subject to completely different proofs from all other physical injury claims in New Jersey.
The main difference between a scar case and every other physical injury case is that there is no requirement for a claimant to prove restriction of bodily function. Even if the scar has absolutely no impact on the function of one’s hand, arm or body part, the petitioner can receive an award. In fact, it is uncommon that a scar injury has an impact on bodily function. The operative test is that a scar injury case must be substantially disfiguring to receive an award. What is or is not substantially disfiguring is in the eye of the beholder. Certainly if one looks at the injury and no scar is visible at all, that injury would not meet the test of substantial disfigurement, and no award would be made. Yet all other kinds of injuries in New Jersey require proof by objective evidence of a restriction of the function of the body or its member organs.
Given that the test is essentially how disfiguring the scar looks, these kinds of cases may not even need an evaluation by a physician, although the practice statewide seems to favor getting IMEs. In many instances, it is more helpful to ask the injured worker to come to court so that the lawyers, and sometimes the Judge of Compensation, can view the scar if it is on the face, hands or arms. When the location of the scar is more private, or the claimant is uncomfortable having it viewed in person, a current photograph can be just as helpful or a description by a doctor in a medical report can suffice.
When it comes to viewing a scar and determining whether it is disfiguring, a Judge of Compensation, claim adjuster or a lawyer is equally qualified to make the same determination as a physician on whether the scar looks substantially disfiguring. One does not need a medical degree to answer the following: Is it a raised scar? Is it uneven or bumpy? Is it discolored? Does the skin appear to be keloidal in nature? These are observations that anyone can make in assessing whether a scar is substantially disfiguring. In fact, this practitioner has found that many doctors who do IMEs on scar injury cases mistakenly focus on assessing functional loss because they do not realize that in scar cases functional loss is not required under N.J.S.A. 34:15-36.
Because scars take a long time to heal and because collagen breaks down slowly at the site of the wound, the scar may fade significantly over a long period time. For this reason, it is not wise in serious scar injury cases for respondents to rush to get an IME soon after the injury. Often scars improve markedly one year or more after the initial injury. It is often startling to see how different the injury site looks at the time of the work incident versus how it looks one or two years later.
Practitioners often debate whether a scar should be compensated based on where it is located on the body or whether the injury is more psychological in nature and therefore should be compensated as a partial total injury. For instance, should a very unsightly scar on one’s hand be compensated in terms of the hand (one percent equals 2.45 weeks) or should it be compensated under partial total (one percent equals six weeks)? The answer is that this it depends on whether the petitioner is having psychiatric problems in relation to the appearance of the scar. An IME with a psychiatrist would be necessary to make the argument that the injury should be compensated in whole or in part under partial total with more weeks. The defense, in this instance, would need an IME with its own psychiatrist.
The best advice for employers in handling serious scar cases is not to try to settle the cases early on and to make sure that whenever possible, the defense counsel or court adjuster has an opportunity to view the scar at or near the time of settlement. In a significant percentage of cases, the IME is really unnecessary because, as noted above, the test is simply whether the scar appears to be disfiguring.
John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group. Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e?mail at email@example.com.
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