Beauty Is In the Eye… A Primer on Delaware’s Bagley Analysis for Disfigurement
nother guest blogger today, and with today’s post comes some insight into the Bagley analysis for work comp, courtesy of Sheldon Saints. You may vaguely recall that Bagley is that case that more or less examines that portion of our disfigurement statute, 19 Del. Code Section 2326(f), allowing that when a disfigurement is to a body part for which there is also a permanent impairment, the claimant is entitled to the higher of either (1) the amount owed for the disfigurement without regard to loss of use, or (2) the amount due for loss plus 20% of the amount due for impairment.
I agree it’s is a confusing standard. Even seasoned practitioners have queried “is Bagley a ceiling or a floor?” and if you don’t read the statute carefully, you might be inclined to assume that the disfigurement entitlement is simply 20% of the permanency award, where it is actually ”permanency plus 20% “ for the scarring alone.
So Sheldon has created his own primer on how Bagley works. When he asked for my opinion, I came back with “friends don’t allow friends to live in ignorance of the Bagley standard, so let’s share it on the blog.”
So here it is:
“Bagley analysis for disfigurement: Bagley requires a calculation and comparison of the disfigurement amount as a percentage of the maximum possible award with and without consideration of permanency. Without permanency as a factor, the maximum is 150 weeks. With permanency as a factor, the maximum disfigurement is permanency (in weeks) plus 20%. Because any number of weeks over 125 plus 20% exceeds 150 weeks (the usual disfigurement maximum award), anytime the permanency calculation for a body part exceeds 125 weeks you must perform the Bagley analysis for disfigurement of that part.
For example: If permanency of the right leg was equal to 125 weeks or less, Bagley would have no effect, and if 15 weeks of disfigurement would be appropriate under normal disfigurement scale (150 week maximum), the disfigurement offer/award equates to 10% of the maximum. But, for example, if claimant’s permanency equaled 135 weeks (54% of right leg), the maximum disfigurement is actually 162 weeks (135 plus 20%) and so 10% of this maximum is 16.2 weeks not 15 weeks, and you go with the higher under Bagley.
A problem, as pointed out by Jessica Welch in a recent seminar, is that you can’t really perform a Bagley analysis until someone (Board or offer) provides a disfigurement number pursuant to the 150 max scale.”
So that’s Sheldon’s recitation of Bagley. I personally forget about Bagley half the time, unless I am dealing with an amputation or catastrophic injury, in which case you can expect Bagley will certainly apply. The claimant who has a total loss of a limb, for example, at 250 weeks, is going to be owed 300 weeks (perm plus 20%) for the disfigurement.
And this would not be a true Detour & Frolic discussion without a little sampler of case law. By way of a precedent you can quickly lay your hands on for awards of the “perm plus 20%”, I give you the following all stars in the league of disfigurement awards:
Thomas Kee v. SIP of Delaware, IAB Hr’g No. 1240275 (Nov. 10, 2004) Claimant awarded a total of 375 weeks of benefits for the amputation of multiple fingers on both hands.
Randall Davis v. Perdue, IAB Hr’g No. 1127521 (Aug. 25, 2010) Claimant awarded 187.5 weeks per leg where there is severe atrophy and gait impairment with claimant requiring a walker.
Canyon Constr. v. Charles Williams, Del. Super., CA 02A-07-003 (12/26/02) (Bradley, J.) Claimant is awarded 600 weeks total where both legs have been amputated.
Sonia Beck v. Brafman Family Dentistry, IAB Hr’g No. 1233899 (July 30, 2008) Claimant is awarded a total of 300 weeks for a right leg below-knee amputation.
Again we thank Shel Saints for his insights into Bagley. I understand that he has a special fascination with disfigurement, which I expect is a foreign concept to him and all he holds dear given the family portrait below. These folks give the phrase “the beautiful people” a whole new meaning….. LOL!!
Irreverently yours,
Cassandra Roberts
