Allegheny Ludlum Industries, Inc. v. Workmen's Compensation Appeal Board

455 A.2d 213, 71 Pa. Commw. 74, 1983 Pa. Commw. LEXIS 1198

• Court: Commonwealth Court of Pennsylvania
• Decided: January 10, 1983
• Docket: Appeal, No. 83 C.D. 1981
• Status: Published

Opinions

Opinion by

Judge Rogers,

The petitioner, an employer, asks us to review an order of the Workmen’s Compensation Appeal Board (Board) increasing the amount of award made to its employee by a referee for serious and permanent disfigurement.

The claimant was injured at work, and filed a petition alleging that as a result of the accident he suffered serious and permanent disfigurement of his face.

At the referee’s hearing the scarring of the claimant ’s face was described in the presence of the petitioner’s counsel without objection as “[a] disfigurement [which] involves a linear red scar on the left side of claimant’s chin, % inch in length and being reddish along the line of the scar. ’ ’ The referee found:

Claimant’s injury resulted in a linear scar on left side of claimant’s chin being approximately y8 inch in length and being reddish along the line of the scar.

The referee awarded the claimant three weeks of compensation under the provisions of Section (306) (e)(22) of the Pennsylvania Workmen’s Compensation Act, Act of June 2,1915, P.L. 736, as amended, 77 P.S. §513(22). The claimant in his appeal to the Board, complained that the award was inadequate. The Board looked at the scar and awarded the claimant eight weeks of compensation.

The petitioner contends that the Board erred in increasing the amount of the claimant’s compensation based on its view of his face. We agree.

The referee is the trier of fact, and unless there is an error of law or a capricious disregard of competent evidence, the Board cannot disturb the referee’s findings of fact. Universal Cyclops Steel Corp. v. Krawczynski, 9 Pa. Commonwealth Ct. 176, 305 A.2d 757 (1973). In McGartland v. Ampco-Pittsburgh Corp., 489 Pa. 205, 207, 413 A.2d 1086,1087 (1980) where the Board did just as it did here, the Supreme Court held: “Where the referee’s findings are supported by competent evidence, the Board cannot take additional evidence and substitute its own findings of fact for those of the referee. ’ ’

Order reversed.

Order,

And Now, this 10th day of January, 1983, the order of the Workmen’s Compensation Appeal Board dated December 24, 1980 and entered to docket number A-79419 is reversed and the order of the referee dated June 12, 1980 is reinstated. Judgment is entered in favor of Jack T. Macurdy and against Allegheny Ludlum Industries or its insurance carrier for compensation at the rate of $227.00 per week for a period of three (3) weeks beginning October 21, 1979, without interest. Attorney’s fees in the amount of 20% are approved and shall be deducted from the deferred compensation due the claimant.