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EAST COAST SHOWS AND U.S. FIDELITY & GUARANTY CO. v. COMMONWEALTH PENNSYLVANIA (08/22/78)

decided: August 22, 1978.

EAST COAST SHOWS AND U.S. FIDELITY & GUARANTY CO., PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND NORMAN BELL, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Norman Bell v. East Coast Shows, No. A-72074.

COUNSEL

Raymond F. Keisling, with him Will & Keisling, for petitioners.

Thomas J. Terputac, with him James N. Diefenderfer, for respondents.

Judges Crumlish, Jr., Wilkinson, Jr. and Blatt, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 37 Pa. Commw. Page 313]

East Coast Shows (employer) and its insurance carrier have appealed from a decision of the Workmen's Compensation Appeal Board (Board) which affirmed a referee's award of benefits for disfigurement to Norman Bell (claimant).

The claimant was injured on September 21, 1975 when a supporting cable snapped on the ferris wheel which he was dismantling. In addition to shoulder, neck, and back injuries, he sustained two lacerations on his face and an extensive one on the back of his head. The referee awarded total disability benefits for the period following the injury until December 1, 1975 and an additional seventy-five weeks of compensation at the rate of $85.50 per week for disfigurement. The employer appealed only that portion of the award pertaining to disfigurement, and the Board, after viewing the claimant's scars, affirmed the referee's award. This appeal followed.

Section 306(c)(22) of The Pennsylvania Workmen's Compensation Act*fn1 (Act), 77 P.S. ยง 513(22), provides compensation "[f]or serious and permanent disfigurement of the head, neck, or face, of such a character as to produce an unsightly appearance, and such as is not usually incident to the employment. . . ." In order for a claimant to receive an award pursuant to this section of the Act, he must prove that his disfigurement is (1) serious and permanent, (2) of such

[ 37 Pa. Commw. Page 314]

    character as to produce an unsightly appearance, and (3) such as is not usually incident to the employment. Simon v. Maryland Battery Service Co., 276 Pa. 473, 120 A. 469 (1923); Workmen's Compensation Appeal Board v. Fruehauf Corp., 23 Pa. Commonwealth Ct. 466, 353 A.2d 63 (1976).

The employer raises two issues before us: (1) whether or not a scar must be discernible to be compensable, and (2) whether or not the claimant must produce medical evidence of the permanence of the disfigurement. Counsel for the employer has argued that much of the scarring here is not visible because it is covered by the claimant's hair and that the record contains no medical evidence of the permanence of the scars.

The referee specifically found that this work-related accident caused:

1. A laceration one (1) inch in length on the middle of his right cheek near the ...


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