Some Disfigured Employees Not Compensated for Scarring in Massachusetts

Massachusetts’s legislature eliminated employee benefits for scarring other than on the face, neck, and hands in 1991.

Massachusetts’s legislature eliminated employee benefits for scarring other than on the face, neck, and hands in 1991.
Massachusetts’s legislature eliminated employee benefits for scarring other than on the face, neck, and hands in 1991. –Courtesy of Flickr/ Creative Commons

Sylbert Stewart lives in a state of constant pain. If he were asked to rate his agony on a scale of one to 10, he says it would be well past 11.

“Day-to-day life is very hard,’’ Stewart said. “I can’t walk down the stairs. I can’t sit for too long. I never sleep.’’

On May 7, 2012, 56-year-old Stewart was standing on the edge of dipping tanks, cleaning the tops of ventilation ducts when he fell into a vat of chemicals at the Belmont metal finishing factory where he had worked for 14 years. Stewart sustained second and third degree burns from his thighs to his feet, and doctors removed skin from his back, chest, and arms for skin grafts to wrap around his legs.

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The Occupational Safety and Health Administration (OSHA) cited his employer for three serious violations related to the incident in November 2012.

Stewart received temporary 60-percent wage replacement benefits and medical treatment through workers’ comp, but was not compensated for his leg scarring, which covers 38 percent of his total body surface.

In order to be compensated for permanent scarring from work-related burns or surgery in Massachusetts, a worker’s disfigurement has to be on the “face, neck, or hands.’’ If Stewart’s scars had fallen within that bodily range, he would have received an extra $15,000 under current state law.

“This is by far the most egregious case I’ve ever seen,’’ said Stewart’s lawyer, James Morris of Quinn & Morris, P.C. “It’s sickening.’’

More than 3,000 workers a year suffer workplace injuries in Massachusetts, with some being scarred from chemical burns, gas explosions, falling pallets, or machine injuries. But if workers are disfigured on their arms, legs, or torsos, like Stewart, they do not receive compensation.

A bill introduced to the state Senate this year could expand benefits for permanent disfigurement under the Worker’s Compensation Act, changing the fate of future scarring victims like Stewart. The bill would eliminate the “face, neck, or hands’’ requirement, and amend the compensation for scarring from $15,000 to 30 times the average weekly wage in the Commonwealth.

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“Someone with serious scarring on his or her back or legs might receive nothing because scarring there is not supposedly visible,’’ said Alan Pierce of Pierce, Pierce & Napolitano, a Salem-based law firm that specializes in workers’ comp. “For years, we’ve been trying to get the legislature to change that.’’

Similar scar-based disfigurement bills were filed in the state’s 2009-2010 and 2011-2012 legislative sessions, but were never brought to the table.

“Unfortunately, 5,000 bills are filed every year,’’ added Judson Pierce, also of Pierce, Pierce & Napolitano. “This bill is filed every year in different iterations and hasn’t gotten much traction. There’s uniform support from employee advocates and insurers, it’s just getting legislators’ support.’’

Rep. Sean Garballey of Middlesex County, one of the bill’s sponsors, said scarring prevents workers from getting future jobs. “Insurance companies see this as a cosmetic problem,’’ Garballey said. “It’s not a cosmetic problem. It’s about quality of life.’’

Under the current Massachusetts workers’ comp system, Stewart went from earning $1,000 per week to less than $600, according to Massachusetts Coalition for Occupational Safety and Health (MassCOSH). Stewart believes his injuries will prevent him from getting a new job.

“I don’t see no future work down the road,’’ Stewart said.

The scar-based disfigurement aspect of the state’s Worker’s Compensation Act was more generous in 1991, but a series of legislation reforms by former Massachusetts Governor William Weld chipped away at workers’ compensation benefits.

Weld said his reforms monitored the “appropriateness’’ of medical services as well as the need for and effectiveness of treatment for injured employees, according to the Office of Labor and Workforce Development. In 1991, Weld signed into law a reform that reduced workers’ temporary total benefits from two-thirds of a claimant’s average weekly wage to 60 percent, and reduced the maximum duration for collecting benefits from 260 weeks to 156 weeks, or three years.

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Weld also established a privately operated insurance fraud bureau that conducted surveillance and investigations on workers, employers, insurers, lawyers, and doctors suspected of cheating the system. In a letter to the editor of The New York Times, Weld wrote that his reforms would “reduce workers’ compensation health care costs,’’ making Massachusetts “a more attractive place to open businesses and create new jobs.’’

But employee advocates say the reforms drastically hurt injured workers, both financially and emotionally.

“Basically, there was a lot of effort to cut benefits and put the burden of proof on the workers to prove they needed workers’ comp,’’ said Marcy Goldstein-Gelb, executive director of the Massachusetts Coalition for Occupational Safety and Health (MassCOSH.) “If you’re a low wage worker, you desperately need all your earnings and given that you suffered from working in unsafe conditions, you’re further penalized by not getting all your wages.’’

The reforms in Massachusetts mirrored a larger trend of workers’ comp reductions that took place on a national scale in the 1990s and mid-2000s, as states tried to attract businesses with lower costs. Since 2003, for example, ProPublica reported that legislators in 33 states have passed workers’ comp laws reducing benefits or making it more difficult for those with certain injuries and diseases to qualify for them.

“Employers look at this as a cost of doing business and they’d rather have costs lower than higher,’’ Leslie Boden, a professor of environmental health at Boston University, said of the widespread cuts. “In the past few decades, employers have had growth in relative power, particularly at the state level — in part because of the decline in power of unions, and in part because they individually try and make it appear that their business climate is better because they want to attract businesses.’’

Though there’s no current timetable for the legislation in Massachusetts, the scar-based disfigurement bill currently on the table is widely supported by local employee rights groups, workers’ comp lawyers, and researchers.

“Getting a small amount of money for a scar isn’t going to fix the scar or change life permanently, but it is an element of damage to one’s body that helps the employer stay in business,’’ said Judson Pierce. “It’s about time there has been some light shed on workers’ comp.’’

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