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decided: June 17, 1988.


Appeal from the Order of the Workmen's Compensation Appeal Board, in the case of Jerome K. Davis v. Olsten Temporary Services, No. A-92464.


Louis Kattelman, for petitioner.

Thomas C. Lowry, Swartz, Campbell & Detweiler, for respondent.

President Judge Crumlish, Jr., Judge Colins, and Senior Judge Blatt, sitting as a panel of three. Opinion by President Judge Crumlish, Jr. Judge Colins dissents.

Author: Crumlish

[ 117 Pa. Commw. Page 174]

A Workmen's Compensation Appeal Board (Board) referee directed Olsten Temporary Services (Olsten) to pay certain medical costs of Jerome Davis. The Board modified that decision. Davis appeals; we affirm.*fn1

Davis, a driver for Olsten, sustained facial scars after a work-related vehicular accident. He petitioned for, and was awarded, temporary total disability benefits and a serious and permanent disfigurement award*fn2 under Section 306(c)(22) of The Pennsylvania Workmen's Compensation Act (Act).*fn3 Approximately one year later, Davis filed a claim petition seeking additional medical and disability benefits for plastic surgery.

After a hearing, the same referee directed Olsten to pay for the surgery.*fn4 The Board, however, concluded that Davis' permanent disfigurement award precluded an additional recovery for cosmetic surgery to improve his appearance. Consequently, it modified the referee's order and granted Olsten a credit in the amount of the initial disfigurement award to be taken against the cost of any future plastic surgery and resulting disability.

Davis argues that the Board based its decision on incorrect facts, i.e., it assumed he sought compensation for purely cosmetic surgery. He contends that a claimant is entitled to compensation for surgery to correct an

[ 117 Pa. Commw. Page 175]

    anatomical defect even though the surgery would incidentally improve his appearance. We conclude that his reliance on Campbell v. Workmen's Compensation Appeal Board (M. Glosser & Sons), 80 Pa. Commonwealth Ct. 148, 472 A.2d 272 (1984), is misplaced.

In Campbell, the claimant suffered a disfiguring eye injury. It was not determined at that time whether the injury would result in the loss of the eye. We held that the potential right to pursue specific loss benefits under Section 306(c)(7) of the Act*fn5 did not preclude a disfigurement award. In deleting a future set-off credit similar to that awarded in this case, we held that the issue of double recovery was not ripe. We noted, however, that "a primary concern of Pennsylvania courts in awarding workmen's compensation benefits under Section 306(c) is the prevention of a double recovery . . . for a single injury. . . ." Campbell, 80 Pa. Commonwealth Ct. at 152, 472 A.2d at 274.*fn6

Here, Davis was aware of the beneficial aspects of surgery before pursuing a permanent disfigurement award.*fn7 Now, however, he seeks to recover medical costs and disability benefits to improve the scar's appearance. While the record supports Davis' argument that the surgery could restore muscles responsible for facial expressions and reduce scar tissue,*fn8 it also reveals that the restructuring would substantially reduce his disfigurement.*fn9 Allowing Davis to receive compensation

[ 117 Pa. Commw. Page 176]

    to undergo surgery he initially ignored, while permitting him to retain the permanent disfigurement award would promote the result proscribed in Campbell.

In affirming the Board's modification, we are merely reiterating the Act's intent to prevent a double recovery. As Olsten suggests, Davis is free to elect the surgery and, under the modification, the employer would provide all costs of the surgery in excess of the award. We believe that result is consistent with the Act, and therefore, affirm the order of the Board.


The order of the Workmen's Compensation Appeal Board, No. A-92464 dated August 25, 1987, is affirmed.



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