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LAKO v. SCHLESSINGER ET AL. (06/24/66)

decided: June 24, 1966.

LAKO
v.
SCHLESSINGER ET AL., APPELLANTS



Appeal from judgment of County Court of Allegheny County, No. A-722 of 1965, in case of William Lako v. Max Schlessinger et al.

COUNSEL

Karl E. Weise, with him Hirsch, Weise & Tillman, for appellants.

Richard G. Zeleznik, for appellee.

Ervin, P. J., Wright, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. (Watkins, J., absent). Opinion by Wright, J.

Author: Wright

[ 208 Pa. Super. Page 87]

This case arises under The Pennsylvania Workmen's Compensation Act of June 2, 1915, P. L. 736, 77 P.S. 1 et seq. The employer and his insurance carrier have appealed from an order of the County Court of Allegheny County reversing the Board and remanding the record. There is an involved procedural history which it will be necessary to set forth in some detail.

William Lako was employed by Max Schlessinger as a truck driver. On October 18, 1961, he was operating a truck loaded with steel coils. His claim petition, filed April 11, 1962, alleged that, while checking the load, a chain binder snapped, "striking petitioner in the face, causing destruction of 16 teeth, disfigurement of upper lip and face". The employer supplied dentures and paid the medical and hospital bills. Claimant lost no compensable time from his work. The Referee disallowed compensation for disfigurement on the ground

[ 208 Pa. Super. Page 88]

    that claimant had not established that the resulting scar on his lip was permanent or of an unsightly appearance. By order entered August 15, 1963, the Board dismissed claimant's appeal.

On October 21, 1963, claimant filed a petition for reinstatement on which he alleged recurrence of disability as follows: "A delayed eruption or facial disfigurement occurred because of nerve injury sustained; consequent damage to the remaining natural teeth now requires additional extraction". On November 1, 1963, the Board assigned this petition to the Referee. Testimony was taken on March 10, 1964. On August 14, 1964, claimant filed with the Board another, or second, petition in which he requested a rehearing. On October 23, 1964, considering the first petition, the Referee found that changes had occurred in the facial structure and tissues around claimant's mouth with resulting disfigurement of the face which "consists of contraction of the tissues of the left half of the upper lip thereby exposing the dentures and creating a snarled expression". An award of 35 weeks was made for unsightly permanent facial disfigurement. Cf. Muchnick v. Susquehanna Waist Co., 124 Pa. Superior Ct. 194, 188 A. 413. The employer appealed to the Board.

On March 18, 1965, because of the pending appeal by the employer on the first petition, the Board entered an order denying claimant's second petition without prejudice. The time for claimant to appeal from this order was extended by the court below until after the Board came to a decision on the first petition. On July 29, 1965, without passing on the merits, the Board sustained the employer's appeal from the award on the first petition on the ground that it could not be considered as a petition for reinstatement under Section 413 of the statute (77 P.S. 772) because there was neither an award nor an agreement, and that it could not be considered as a petition for rehearing under Section

[ 208 Pa. Super. Page 89426]

(77 P.S. 871) because "it is the Board which grants a rehearing, and ...


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