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AMERICAN CHAIN & CABLE COMPANY v. WORKMEN'S COMPENSATION APPEAL BOARD (ALBERT R. WEAVER) (12/29/82)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: December 29, 1982.

AMERICAN CHAIN & CABLE COMPANY, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (ALBERT R. WEAVER), RESPONDENTS

Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Albert R. Weaver v. American Chain & Cable Company, No. A-79252.

COUNSEL

Robert J. Stewart, with him Patricia A. Butler, Liverant, Senft and Cohen, for petitioner.

Marc S. Jacobs, Galfand, Berger, Senesky, Lurie & March, for respondent, Albert R. Weaver.

Judges Blatt, Williams, Jr. and Doyle, sitting as a panel of three. Opinion by Judge Doyle.

Author: Doyle

[ 70 Pa. Commw. Page 580]

On October 27, 1978, while Albert Weaver (Claimant) was employed by American Chain & Cable Company (Employer), Claimant's body (including his head, face and neck) was splashed with acid. Claimant was hospitalized with severe burns and remained out of work for a sixteen-month period. Claimant received compensation for temporary total disability during that period of absence from work. On or about February 27, 1980, Claimant filed a petition alleging that he had suffered serious, permanent and unsightly disfigurement of the head, face, and neck as a result of the job related injury. Following a hearing which was held on May 14, 1980, the referee awarded

[ 70 Pa. Commw. Page 581]

Claimant twenty-five weeks of compensation for the serious and permanent scarring. Claimant, however, filed an appeal, alleging that the referee had capriciously disregarded evidence due to the absence of findings of fact which described the disfigurement for which compensation was awarded. Following a review of the evidence that had been offered at the hearing, and after observing Claimant's scarring,*fn1 the Workmen's Compensation Appeal Board (Board) found that the referee's award was insufficient. As a result, the Board reversed the referee's award, and substituted therefor, an award for seventy-five weeks of compensation. Employer's appeal to this Court followed.

Employer contends that the referee's findings of fact were supported by substantial evidence and therefore it was improper for the Board to accept additional evidence, that is, the viewing of Claimant's scarring. There is considerable support for Employer's position in that where the party with the burden of proof prevailed below, the Board may not take additional evidence and substitute its findings for those of the referee's if the referee's findings are supported by substantial competent evidence. Forbes Pavilion Nursing Home, Inc. v. Workmen's Compensation Appeal Board, 18 Pa. Commonwealth Ct. 352, 336 A.2d 440 (1975).

In Universal Cyclops Steel Corporation v. Krawczynski, 9 Pa. Commonwealth Ct. 176, 305 A.2d 757 (1973), we established the rule that the Board could not substitute its findings for those of the referee without taking additional evidence. Thereafter, in Forbes Pavilion Nursing Home, Inc., we interpreted

[ 70 Pa. Commw. Page 582]

    the 1972 amendments to the Pennsylvania Workmen's Compensation Act*fn2 to restrict the Board's authority to take additional evidence to those instances where the findings or decision of the referee is not supported by substantial competent evidence. Nevertheless, in Workmen's Compensation Appeal Board v. Jones and Laughlin Steel Corp., 25 Pa. Commonwealth Ct. 542, 360 A.2d 854 (1976), we held that the Board's reception of evidence by its personal view of a claimant's scar in a disfigurement case was proper as an exception to the general rule in Forbes.

Subsequently, our Supreme Court in McGartland v. Ampco-Pittsburgh Corp., 489 Pa. 205, 413 A.2d 1086 (1980) held that workmen's compensation cases involving loss of use were no exception to the general rule established in Forbes that the Board cannot take additional evidence and substitute its own findings for those of the referee, where the referee's findings are supported by competent evidence. Commonwealth Court has since extended the precise rule of McGartland to apply also in disfigurement cases. Purex Corp. v. Workmen's Compensation Appeal Board, 59 Pa. Commonwealth Ct. 499, 445 A.2d 267 (1982); St. Joe Zinc v. Workmen's Compensation Appeal Board, 59 Pa. Commonwealth Ct. 363, 429 A.2d 1262 (1981); United States Steel Corp. v. Workmen's Compensation Appeal Board, 52 Pa. Commonwealth Ct. 641, 416 A.2d 619 (1980), and consequently has seemingly overturned, sub silencio, the exception established in Jones & Laughlin Steel.

These cases have not, however, removed from the province of the Board the task of determining whether

[ 70 Pa. Commw. Page 583]

    the referee's findings and conclusions are supported by substantial competent evidence.*fn3

In the case sub judice, the only findings the referee made in regard to the claimant's scar were as follows:

6. Claimant suffered burns of arms and chest in the injury of October 27, 1978 which resulted in his being temporarily totally disabled for the period October 27, 1978 to February 5, 1979.

7. The claimant has scarring of the head, face and neck which are serious and permanent.

8. The referee has made an observation of the scarring of the claimant's head, face and neck.

     and thereupon concluded, as a matter of law, that claimant had a serious and permanent disfigurement of his head, neck and face of such a character as to produce an unsightly appearance. Apart from the referee's own view, these findings were based upon the record description of the claimant's scars by his counsel and three polaroid photographs, two of which were of the claimant's chest and right arm (an area not compensable), and one woefully inadequate photograph to demonstrate scarring of the claimant's face and head.

In any disfigurement case, the referee inevitably bases his findings of fact and determination of compensability on his personal observation of the scarring or damage to the normal appearance of the claimant. See St. Joe Zinc; United States Steel. Unlike other compensable injuries disfigurement is not best determined by expert medical testimony or by testimony

[ 70 Pa. Commw. Page 584]

    from witnesses describing what the claimant's disfigurement looks like. Rather, it is the physical appearance of the claimant himself which constitutes the evidence considered by the referee. It is precisely because this essential physical evidence considered by the referee is difficult to preserve for the record that disfigurement cases are troublesome. The recitation of verbal descriptions of a scar is helpful but often woefully inadequate to accurately preserve evidence which is received by the referee by his visual perception of that physical evidence.*fn4

Unlike most other awards where the number of compensable weeks is fixed once the referee concludes

[ 70 Pa. Commw. Page 585]

    that an award is justified, in disfigurement awards, Section 306(c) of the Act establishes in a clear and precise manner the necessity for the referee to find not only the factual elements necessary to support an award, but vests with the referee the discretion to fix the number of weeks up to a maximum of two hundred and seventy-five, based upon his subjective evaluation of the unsightly appearance of the disfigurement. There must be therefore, substantial competent evidence to support not only an award, but also the amount of the award as well.

When the amount of the award is unsupported by such substantial evidence, then the Board may accept additional evidence, and the most meaningful evidence there could possibly be, is the view of the disfigurement itself.

In certain circumstances, such as here, where the referee made no findings actually describing the disfigurement for the benefit of a subsequent review and appeal to the Board, a view of the scar would be the only meaningful way to establish whether the opinion of the referee is indeed supported by substantial competent evidence.

Therefore, it was not error for the Board to take additional evidence by viewing Claimant's scar. As the Board explained:

Since McGartland we have not substituted our findings for the Referee lightly. We have done so only if we have felt the Referee capriciously disregarded competent evidence, to wit the scar. We have made no changes of a few weeks but have only either lowered or raised a substantial number of weeks to avoid a grave miscarriage of justice.

The order of the Board is affirmed.

[ 70 Pa. Commw. Page 586]

Order

Now, December 29, 1982, the decision of the Workmen's Compensation Appeal Board dated December 10, 1981 at docket no. A-79252 is hereby affirmed.

Disposition

Affirmed.


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