Summary
awarding 20 weeks for 2 1/4 long cervical scar
Summary of this case from Dart Container v. W.C.A.BOpinion
Argued November 14, 1983
May 15, 1984.
Workmen's compensation — Disfigurement — Burden of proof — Scope of appellate review — Modification of referee's decision — Findings.
1. A claimant seeking workmen's compensation benefits for a disfigurement must prove that such disfigurement is serious, creating an unsightly appearance, and is permanent. [434]
2. The Workmen's Compensation Appeal Board may observe the claimant in a disfigurement case to determine whether the referee as fact finder capriciously disregarded competent evidence of the unsightly appearance of a scar, and may properly modify the decision of the referee only when the record reflects a substantial difference in what the Board and referee observed. [434-5]
3. The Workmen's Compensation Appeal Board may properly modify an award of a referee in a disfigurement case when the Board observed the claimant and when the referee failed to make findings which adequately described the disfigurement observed by the referee. [435]
Argued November 14, 1983, before Judges WILLIAMS, JR., CRAIG and BLATT, sitting as a panel of three.
Appeal, No. 3265 C.D. 1982, from the Order of the Workmen's Compensation Appeal Board in case of Leo T. Daggett v. Nabisco, Inc., No. A-83741.
Petition to the Department of Labor and Industry for workmen's compensation benefits. Benefits denied. Claimant appealed to the Workmen's Compensation Appeal Board. Benefits awarded. Employer appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Scott E. Becker, Thomson, Rhodes Grigsby, P.C., for petitioner.
Richard G. Spagnolli, McArdle, Caroselli, Spagnolli Beachler, for respondent, Leo T. Daggett.
Nabisco, Inc. (employer) appeals an order of the Workmen's Compensation Appeal Board which reversed a referee's decision denying benefits to Leo T. Daggett (claimant) for serious and permanent disfigurement under Section 306 (c)(22) of The Pennsylvania Workmen's Compensation Act (Act).
Act of June 2, 1915, P.L. 736, as amended, 77 P. S. § 513(22).
Due to claimant's compensable injury, neck surgery (anterior cervical discectomy and fusion) was performed. Temporary total disability benefits were paid pursuant to a notice of compensation payable, and claimant subsequently returned to work without wage loss. Claimant then filed a modification petition alleging that his neck was seriously and permanently disfigured by a surgical scar.
Before the referee, the parties stipulated to the scar's permanency and to claimant's counsel's description of the disfigurement as "two and one quarter inches in length, and . . . approximately 1/16th of an inch in diameter [sic] and recessed." Without describing the scar in a finding the referee denied benefits after determining that — notwithstanding the stipulation — the neck scar was temporary, and the disfigurement was not serious enough "to produce an unsightly appearance." Claimant appealed to the board which viewed the scar, reviewed the record and awarded the claimant twenty weeks of compensation. The employer subsequently appealed to this Court.
In order to qualify for benefits under Section 306(c)(22) of the Act, a claimant must prove that his disfigurement is (1) serious ( i.e. creates an unsightly appearance) and (2) permanent. Because the parties stipulated to the surgical scar's permanency below, the sole issue is whether the referee capriciously disregarded competent evidence of the seriousness of claimant's disfigurement. The referee is the trier of fact, and, absent a capricious disregard of competent evidence, the board cannot substitute its findings for the referee's. Allegheny Ludlum Industries, Inc. v. Workmen's Compensation Appeal Board (Macurdy), 71 Pa. Commw. 74, 455 A.2d 213 (1983).
Although a disfigurement's seriousness is a question of fact for the referee to determine after a viewing, Purex v. Workmen's Compensation Appeal Board (Ross), 66 Pa. Commw. 499, 445 A.2d 267 (1982), a board view is necessary to establish whether the referee capriciously disregarded competent evidence of a scar's seriousness, where, as here, the referee failed to make findings specifically describing the disfigurement. American Chain Cable Company v. Workmen's Compensation Appeal Board (Weaver), 70 Pa. Commw. 579, 454 A.2d 211 (1982). While the board's observation of claimant's disfigurement was therefore warranted, id., the board's substitution of its judgment and findings regarding the disfigurement's seriousness for that of the referee is justified only if the fact finder capriciously disregarded competent evidence of the unsightly appearance of claimant's scarred neck. See Allegheny Ludlum Industries, Inc. (DOYLE, J. concurring).
The referee's pertinent finding reads as follows:
As a result of said injury, claimant has not sustained a serious and permanent disfigurement of his neck of such a character as to produce an unsightly appearance.
In St. Joe Zinc v. Workmen's Compensation Appeal Board (Howard), 59 Pa. Commw. 363, 429 A.2d 1262 (1981), after comparing record, referee and board descriptions of a disfigurement and concluding that the descriptions were substantially similar, we reversed a board decision that had increased a disfigurement award. Thus, absent a substantial difference in what the board and referee observed as revealed by the record, referee and board disfigurement descriptions, the board may not modify the referee's decision. Id.; see also Allegheny Ludlum Industries, Inc. (DOYLE, J. concurring).
In the case sub judice, the board "amended" the referee's decision and awarded claimant twenty weeks of benefits primarily on the stipulated record-description of the scar, and, secondarily, on viewing the disfigurement. Unlike St. Joe Zinc and Allegheny Ludlum Industries, Inc., however, the referee below did not describe claimant's disfigurement in the findings ( see footnote 2, supra), thus it is impossible to conclude from the record and board description alone that the referee and board failed to find substantial differences in the evidence. We are therefore guided by American Chain Cable Company, which affirmed — in the absence of referee's findings that described a disfigurement — a board decision which reversed the referee's award and tripled claimant's benefit duration. Because the referee failed to delineate findings which adequately described claimant's neck disfigurement, we are persuaded that American Chain Cable Company, rather than St. Joe Zinc, is determinative here. Accordingly, we conclude that the board did not err as a matter of law when it granted benefits based upon its own observation of claimant's surgical scar.
We affirm.
ORDER
AND NOW, this 15th day of May, 1984, the order of the Workmen's Compensation Appeal Board at No. A-83741, dated December 9, 1982, is affirmed.