Scarring Compensation Under the Workers’ Compensation Act

By: Holly Stephens

“Can a claimant receive compensation under the Workers Compensation Act for scarring?” This question is one that arises frequently when dealing with workers’ compensation claims in North Carolina. And the answer…well, it depends.

N.C. Gen. Stat. § 97-31(22) provides that, “In case of serious bodily disfigurement for which no compensation is payable under any other subdivision of this section, but excluding the disfigurement resulting from permanent loss of use of any member of the body which compensation is fixed in the schedule contained in this section, the Industrial Commission may award proper and equitable compensation not to exceed $10,000.00.”

So, who determines the amount of scarring compensation that a claimant receives? Generally, it is the Director of the Industrial Commission’s Claims Department, unless the issue is before a Deputy Commissioner on a hearing request. Fortunately, through case law, the North Carolina Supreme Court and Court of Appeals have provided guidance regarding a presumption for when scarring is awarded.

In Liles v. Charles Lee Byrd Logging, Co., the Court found that in order to be compensated for a bodily disfigurement per N.C. Gen. Stat. § 97-31(22), the injury “must be of such a nature that it may be fairly presumed that the injured employee has suffered a diminution of his future earning power.” Liles v. Charles Lee Byrd Logging, Co., 309 N.C. 150, 154, 305 S.E.2d 523, 525 (1983). The Court went on to state that this presumption is satisfied where the employee’s disfigurement makes him so repulsive to others as to “lessen his opportunities for remunerative employment and so reduce his future earning power.” Id.

The Court of Appeals has noted that a finding of disfigurement based on a deputy commissioner’s personal observation alone is inadequate as there is no basis for the appellate court to review said finding. Carrington v. Housing Authority, 54 N.C. App. 158, 282 S.E.2d 541 (1981).

An example of a case in which scarring compensation was awarded is found in Locklear v. Canal Wood Corporation. In this case, the plaintiff was injured when he fell backward while cutting trees for defendant-employer. Plaintiff ultimately sustained four scars on his leg from the chain saw as a result of his injury. Testimony revealed that the injured worker planned to be a high school physical education teacher, which would require him to wear shorts often. In this case, the Court held that there was competent evidence of serious bodily disfigurement that could have lessened the claimant’s future earning power and opportunity for employment. Locklear v. Canal Wood Corporation, 63 N.C. App. 185, 303 S.E.2d 825 (1983).

However, in Anderson v. Shoney’s, the Court of Appeals declined to award scarring compensation in a claim in which an employee was burned after hot water spilled on her chest.. Although the employee sustained two (2) scars to the top of her breast, the Court held that these scars were not visible when plaintiff was dressed while at work, and, according to plaintiff’s testimony, she never desired a type of job in which these scars would have been exposed. The Court further found that plaintiff had returned to her former job without a reduction in pay. As such, the Court of Appeals held there was no nexus between plaintiff’s scars on her breast and a diminished earning capacity and that plaintiff was not entitled to scarring compensation. Anderson v. Shoney’s, 76 N.C. App. 158, 332 S.E.2d 109 (1986).  

When it comes to scarring for serious facial or head disfigurement, compensation is mandatory pursuant to N.C. Gen. Stat. § 97-31(21). In these claims, the Commission shall award compensation not to exceed $20,000.00. If a claimant has sustained both facial and bodily disfigurement, the Commission has indicated there should be separate awards entered. Crews v. North Carolina DOT, 103 N.C. App. 372, 405 S.E.2d 595 (1991).

Thus, when it comes to scarring compensation for serious bodily disfigurement, the Commission has the discretion to award compensation for plaintiff, provided that compensation does not exceed $10,000.00. However, scarring compensation is not guaranteed, except in cases of serious facial or head disfigurement. In determining whether a claimant should receive scarring compensation, the Commission will consider a variety of factors, including how the scar affects the claimant’s future earning power and opportunity for employment.

As always, we encourage anyone who may have questions regarding scarring compensation to contact one of our experienced workers’ compensation attorneys.