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PUREX CORPORATION v. COMMONWEALTH PENNSYLVANIA (05/17/82)

decided: May 17, 1982.

PUREX CORPORATION, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND RICHARD R. ROSS, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Richard R. Ross v. Purex Corporation, No. A-79784.

COUNSEL

Charles W. Craven, with him Jo Marjorie Fineman, Marshall, Dennehey, Warner, Coleman & Goggin, for petitioner.

Francis X. Dillon, Timby and Dillon, P.C., for respondent, Richard R. Ross.

Judges Rogers, Craig and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail. Judge Mencer did not participate in the decision in this case.

Author: Macphail

[ 66 Pa. Commw. Page 501]

Purex Corporation (Petitioner) appeals from an order of the Workmen's Compensation Appeal Board (Board) which affirmed a referee's order awarding workmen's compensation benefits to Richard R. Ross (Claimant) for serious and permanent disfigurement under Section 306(c)(22) of The Pennsylvania Workmen's Compensation Act (Act).*fn1 We affirm.

Claimant was employed by Petitioner as a checker and forklift operator when, on January 7, 1978, he was injured in a fall while at work. A Notice of Compensation Payable was entered whereby Claimant received compensation benefits effective January 8, 1978. Claimant subsequently executed a final receipt reflecting his ability to return to work on April 24, 1978. On or about May 18, 1978, Claimant filed a claim petition alleging disfigurement as a result of facial scarring and a broken nose suffered in the accident at work.

The referee amended the claim petition to a petition to set aside a final receipt and found, after hearings were held on the matter, that Claimant was seriously and permanently disfigured by spotted scarring on either side of the bridge of his nose, a three inch scar on the forehead and a bend in his nose due to a

[ 66 Pa. Commw. Page 502]

    nose fracture. The referee awarded Claimant twenty-six weeks compensation at $195.70 per week. Petitioner appealed to the Board which, after oral argument, affirmed the referee. A timely appeal was subsequently perfected to this Court.

A claimant who seeks to set aside a final receipt has the burden to prove conclusively that all disability due to the accident has not in fact terminated. Forbes Pavilion Nursing Home, Inc. v. Workmen's Compensation Appeal Board, 18 Pa. Commonwealth Ct. 352, 336 A.2d 440 (1975). Moreover, in order to receive an award pursuant to Section 306(c)(22) of the Act, a claimant must establish that his disfigurement 1) is serious and permanent, 2) results in an unsightly appearance and 3) is not usually incident to his employment. East Coast Shows v. Workmen's Compensation Appeal Board, 37 Pa. Commonwealth Ct. 312, 390 A.2d 323 (1978). Where, as here, the party with the burden of proof has prevailed before the compensation authorities, our scope of review is limited to a determination of whether constitutional rights were violated, an error of law was committed, or findings of fact were not supported by substantial evidence. United States Steel Corp. v. Workmen's Compensation Appeal Board, 52 Pa. Commonwealth Ct. 641, 416 A.2d 619 (1980).

Petitioner's first contention in this appeal is that the referee's finding of serious and permanent disfigurement is not supported by substantial evidence. The issue of the seriousness of a disfigurement is one of fact for the referee to determine upon a view of the Claimant. Sun Shipbuilding and Dry Dock Co. v. Workmen's Compensation Appeal Board, 41 Pa. Commonwealth Ct. 302, 398 A.2d 1111 (1979), aff'd, 447 U.S. 715 (1980). Since the ...


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