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WHEELING-PITTSBURGH STEEL CORPORATION v. COMMONWEALTH PENNSYLVANIA (03/15/79)

decided: March 15, 1979.

WHEELING-PITTSBURGH STEEL CORPORATION, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND JOHN SOBEK, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of John Sobek v. Wheeling-Pittsburgh Steel Corporation, No. A-73325.

COUNSEL

Francis P. Massco, for petitioners.

Edwin H. Beachler, with him McArdle, Caroselli, Spagnolli and Beachler, for respondents.

Judges Mencer, DiSalle and Craig, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 41 Pa. Commw. Page 280]

Wheeling-Pittsburgh Steel Corporation (employer) is here as petitioner seeking to reverse the Pennsylvania Workmen's Compensation Appeal Board (Board) with respect to an award of compensation for "serious and permanent disfigurement" under Section 306(c)(22) of The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as Page 281} amended, 77 P.S. ยง 513(22) (Act) to John Sobek (claimant) arising from his employment as a scarfer.

A scarfer uses an oxy-acetylene scarfing torch, which generates a hot flame to burn out defects in steel blooms. Because the work generates sparks, scarfers wear -- as claimant did here -- a hardhat with face shield, safety glasses, fireproof suit and gloves. When claimant's torchflame hit a pocket in the steel, a spark lodged behind his mask, burning him under his right eye. Although hitting a pocket is not uncommon, the scarfer is not scarred or burned every time that occurs.

The referee, in disallowing compensation, found that claimant suffered a burn resulting in a "slight scar." However, the referee also found:

4. . . . that the scar is not particularly disfiguring in character and is barely discernible.

5. That burns from flying sparks is incidental with claimants employment as a scarfer.

The Board, before whom claimant appeared personally, in its decision deleted the referee's Findings Nos. 4 and 5 and substituted the Board's own finding that:

4. The aforesaid scar produced an unsightly appearance, and is a serious and permanent disfigurement and as such, is not usually incident to said employment.

Although the Board is bound by findings of the referee supported by substantial evidence, the Board may reverse a referee and make its own findings where there has been a capricious disregard of competent evidence and where the Board itself takes additional evidence. Universal Cyclops Steel Corp. v. Krawczynski, 9 Pa. Commonwealth Ct. 176, 305 A.2d 757 (1973); Kimbob ...


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