News

May 01, 2013

Linda Dye was struck in the right temple by a steel cylinder in January 2007 while working for Plymouth Tube.  She was treated and released from a local hospital where she was diagnosed with closed head trauma, a concussion and an abrasion to the forehead and was instructed to stay off work two days.  She was released to light duty for five days and then resumed full duty.  Two years later, while at the doctor for an unrelated condition she was noted to have a non-tender “small indentation” in the right lateral forehead.  She was complaining of headaches and was referred to a neurologist who found her completely normal but who again reported a “dent in the right frontal area” related to the initial trauma.  The doctor noted the loss of muscle in the area which he concluded was left over from the trauma.  He considered her not in need of further treatment for this condition, however.

Dye then sought out a dermatologist who noted a two by one-centimeter depressed area on the right frontal temporal region in front of the temporal hairline.  There was a raised lower edge resembling a scar.  The doctor recommended grafting to correct the deformity. At arbitration on petitioner’s 8(a) petition, the Arbitrator took notice of the area in question but denied the request for prospective cosmetic medical treatment; he also denied a petition for penalties on the basis that the treatment that was outside the allowable chain of referrals.  The Commission modified this finding but otherwise affirmed the Arbitrator’s decision to deny prospective medical and penalties, stating that “the evidence is at best unclear as to whether [claimant] has an observable disfigurement.”

On appeal, the Appellate Court cited the definition of disfigurement as “that which impairs or injures the beauty, symmetry or appearance of a person or thing; that which renders unsightly, misshapen, or imperfect, or deforms in some manner.”  Petitioner had an indentation on the right side of the forehead which her dermatologist proposed to repair which clearly demonstrated that the disfigurement was observable to the naked eye.  The court overruled the Commission’s finding that it was “unclear” whether there was observable disfigurement.  Although the Commission’s relied on the neurologist who opined that nothing needed be done and that the dent would not cause Dye trouble in the future, the court felt that he was speaking strictly from a neurological standpoint.  Therefore, the court granted the 8(a) petition seeking the cosmetic surgery.

The employer argued that any disfigurement Dye sustained was not serious and therefore she was not entitled to prospective cosmetic medical care.  The court dismissed this argument, stating that there was no language limiting medical care under Section 8(a) for serious and permanent disfigurement.  The Court did affirm the Commission finding denying penalties, however.

Justice Turner dissented, accusing the Court of reweighing the evidence and ignoring the reasonable inferences drawn by the Commission.  The dissent cited the fact that there were no photographs of the disfiguring area in evidence, something the dissent considered a “red flag.”  The Arbitrator’s decision provided no information and was vague and subject to different interpretations.  Further, a reasonable inference could have been made that the Arbitrator questioned the need to fix something trifling from his statement, made after he asked petitioner if she were seeking cosmetic repair, “You have got to be kidding.”  The dissent would have affirmed the Commission’s conclusion that the evidence was at best unclear as to whether there was observable disfigurement.

Comments:

Inasmuch as the right to medical treatment remains open under Section 8(a), any claimant can at any time seek cosmetic surgery for so-called disfiguring injuries.  This means that any cut or burn observable on the face, neck, arms or hands and legs below the knees can be subject to future medical care.  The question is not whether the claimant here could profit from cosmetic surgery but rather the open-ended nature of ‘serious and permanent’ disfiguring injuries.  An orthopedic specialist can easily conclude that an individual no longer needs medical treatment for an operated shoulder or elbow.  A cut on the face is a different matter, however.  It appears the court usurped the Commission’s function in this case.