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.
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.
[ 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. ...