On November 20, 2013, Ta’Shanta Dupard, Claimant, was involved in a work-related injury while working for MMR Constructors, Inc. (MMR), when a four pound hammer fell from above her and struck her right knee.  Ms. Dupard suffered a knee contusion and laceration, the later which left a permanent scar approximately one inch in length.  As part of her claim, Ms. Dupard asserted that she was entitled to benefits due to “a serious and permanently disfiguring scar on her right knee.”  At a trial, the parties stipulated that the scar was permanent and medical records of Ms. Dupard’s treating physician, including a photograph of the scar, were admitted into evidence.  The OWC was also provided the opportunity to view Ms. Dupard.  The issues before the Office of Workers’ Compensation (OWC) were: (1) whether the scar was “serious” within the meaning of La. R.S. 23:1221, and thus compensable; (2) if so, the amount of benefits due; and (3) whether Ms. Dupard was entitled to penalties and attorneys’ fees.  The OWC ruled that Ms. Dupard was entitled to permanent partial disability benefits for her scarring claim and awarded 25 weeks of compensation benefits.  The OWC also awarded maximum penalties and $2,500.00 in attorneys’ fees.

MMR appealed the decision and assigned the following as error: (1) the OWC erred by ruling that Claimant’s scar was sufficiently serious and materially disfiguring so as to be compensable under La. R.S. 23:1221; (2) the OWC erred by ruling that Claimant’s scar merited an award of 25 weeks of compensation benefits; (3) The OWC erred by awarding penalties and attorneys’ fees as there was no medical evidence establishing that the scar was permanent and the issue of compensability was reasonably controverted; and (4) the OWC erred in awarding the maximum penalty considering that a good faith tender was made 36 days after MMR was put on notice that Claimant was seeking permanent partial disability benefits in relation to her scar.

In addressing MMR’s first assignment of error that Claimant’s scar was sufficiently serious so as to be compensable under La. R.S. 23:1221, the First Circuit noted that the Louisiana Workers’ Compensation Act (LWCA) does not define the term “disfigurement,” however, the OWC is provided great discretion in determining whether a scar is seriously and permanently disfiguring.  The Court affirmed the OWC’s ruling on this issue, citing the OWC’s firsthand view and account of Claimant’s scar.  Accordingly, the OWC did not abuse its discretion in finding the scar to be seriously and permanently disfiguring.

As to MMR’s second assignment of error, the Court agreed with MMR’s assertion that the award was excessive and that the reasonableness of the award should be based on specific disabilities set forth in the schedule at La. R.S. 23:1221(4).  Noting MMR’s assertion that the award of the OWC was in excess of the schedule awards for the loss of a finger, other than the thumb or index, or any toe, and the fact that Claimant suffered no loss of functionality due to the scar, the First Circuit reduced the award from 25 to ten weeks of permanent partial disability benefits.  Claimant conceded that the OWC erred in awarding penalties and attorneys’ fees.  The Court reversed that award accordingly.

Dupard v. MMR Constructors, Inc.