Appeals from the Orders of the Workmen's Compensation Appeal Board in cases of Frank Januzciewicz v. Sun Shipbuilding & Dry Dock Company, No. A-73219; Curtis L. Fields v. Sun Shipbuilding & Dry Dock Company, No. A-73210; Joseph C. Kimmel v. Sun Shipbuilding & Dry Dock Company, No. A-73220; Willie Moore v. Sun Shipbuilding & Dry Dock Company, No. A-73218 and John April v. Sun Shipbuilding & Dry Dock Company, No. A-73217.
Jeffery C. Hayes, with him John J. Runzer, Thomas E. Zemaitis, and Pepper, Hamilton & Scheetz, for petitioner.
Joseph Lurie, for respondents.
Judges Wilkinson, Jr., Mencer and Craig, sitting as a panel of three. Opinion by Judge Wilkinson, Jr.
[ 41 Pa. Commw. Page 304]
Each of the five cases which have been consolidated for appeal here involve awards of benefits by the Workmen's Compensation Appeal Board (Board) pursuant to The Pennsylvania Workmen's Compensation Act (Act)*fn1 for facial disfigurement resulting from five separate work-related injuries sustained by claimants while in the employ of Sun Shipbuilding and Dry Dock Company (petitioner), a company engaged in ship building and ship repair. We affirm.
The relevant findings of the referees regarding claimants' facial disfigurement are as follows: (1) a "residual scar about one-inch long over the left forehead extending into the eyebrow" (31 C.D. 1978); (2) a "one inch permanent scar above the left eyebrow" (32 C.D. 1978); (3) a "circular scar on the right cheek" (33 C.D. 1978); (4) a "residuum of a scar along the lower border of the right eye above the cheekbone approximately three-quarters of an inch long and visible from about fifteen feet" (34 C.D. 1978); and (5) "a residual oblique scar along the right side of the nose" (35 C.D. 1978). In each of the cases, the referee concluded that the claimant had suffered a serious and permanent facial disfigurement within the purview of Section 306(c)(22) of the Act,
[ 41 Pa. Commw. Page 30577]
P.S. § 513(22). However, in 32 C.D. 1978 the referee found that claimant's remedy as a matter of law fell within the exclusive jurisdiction of federal compensation authorities pursuant to the Longshoremen's and Harbor Worker's Act*fn2 (hereinafter the Longshoremen's Act) and dismissed the claim petition.
Appeals were taken and consolidated for review by the Board. The decisions of the referees were upheld in all cases with respect to the factual findings of facial disfigurement and the determinations of compensability under the Act. Further, in 32 C.D. 1978 the Board held that the Longshoremen's Act did not confer exclusive jurisdiction in federal authorities.
Throughout the proceedings below, as here, the petitioner has maintained that Congress, by its 1972 amendments to the Longshoremen's Act, pre-empted the field of workmen's compensation for employees in maritime industries thereby ending the concurrent jurisdiction previously exercised by the state and federal governments. See Calbeck v. Travelers Insurance Co., 370 U.S. 114 (1962).
The original Longshoremen's Act was enacted by Congress in 1927. It contained two conditions of compensability, first that the injury occur on a navigable water and second that "the recovery for the disability or death through workmen's compensation proceedings may not validly be provided by state law."*fn3 Thus, the 1927 Longshoremen's Act was intended only to be a gap-filler, that is, to fill the void created by the inability of states to remedy ...