Opinion
July 9, 1986.
Workmen's compensation — Disfigurement — Burden of proof — Scope of appellate review — Violation of constitutional rights — Error of law — Findings of fact — Substantial evidence — Discretion of referee.
1. To receive workmen's compensation benefits for disfigurement, a claimant must prove that such disfigurement is serious and permanent, resulted in an unsightly appearance and is not usually incident to his employment. [582]
2. In a workmen's compensation case where the party with the burden of proof prevailed below, review by the Commonwealth Court of Pennsylvania is to determine whether constitutional rights were violated, an error of law was committed or findings of fact were unsupported by substantial evidence. [582]
3. A workmen's compensation referee does not abuse his discretion in awarding ninety weeks compensation for a disfigurement sustained by a school teacher which consisted of a scar above the lip and the loss of four front teeth which resulted in an unsightly appearance diminished somewhat by the presence of a bridge prosthesis. [582-3]
Submitted on briefs June 10, 1986, to Judges CRAIG and BARRY, and Senior Judge BLATT, sitting as a panel of three.
Appeal, No. 2532 C.D. 1985, from the Order of the Workmen's Compensation Appeal Board, in case of Ann Gardiner v. School District of Philadelphia, No. A-88054.
Petition to the Department of Labor and Industry for workmen's compensation benefits. Benefits awarded. Employer appealed to the Workmen's Compensation Appeal Board. Award affirmed. Employer appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
William J. McKee, Labrum Doak, for petitioner.
Larry Pitt, for respondent.
Employer School District of Philadelphia appeals from an order of the Workmen's Compensation Appeal Board which affirmed a referee's decision awarding ninety weeks of workmen's compensation benefits to the claimant, Ann G. Gardiner, for serious and permanent disfigurement pursuant to section 306(c)(22) of The Pennsylvania Workmen's Compensation Act.
Act of June 2, 1915, P.L. 736, as amended, 77 P. S. § 513(22).
The facts of this case are not in dispute. On May 27, 1980, during the course of her employment as a school teacher, the claimant sustained various injuries when she was attacked by students. In addition to receiving lacerations of her face, the claimant lost four front teeth, her two upper central incisors and her two upper maxillary lateral incisors.
The employer issued a notice of compensation payable, but the claimant returned to work on December 19, 1980 without losing any earnings. In December of 1982, the claimant filed a petition for modification alleging that she sustained a serious and permanent disfigurement of her head, neck or body as a result of the accident on May 27, 1980. However, on February 1, 1983, the employer filed a termination petition, alleging that the claimant's disability resulting from her injuries of May 27, 1980 had ceased and terminated on December 19, 1980. The referee granted the modification petition but dismissed the termination petition.
To receive an award under section 306(c)(22) of the Act, a claimant must establish that his disfigurement (1) is serious and permanent (2) resulted in unsightly appearance and (3) is not usually incident to his employment. Purex Corporation v. Workmen's Compensation Appeal Board, 66 Pa. Commw. 499, 445 A.2d 267 (1982). Where, as here, the party with the burden of proof has prevailed before the compensation authorities, our scope of review is limited to a determination of whether constitutional rights were violated, an error of law was committed, or findings of fact were not supported by substantial evidence. United States Steel Corporation v. Workmen's Compensation Appeal Board, 52 Pa. Commw. 641, 416 A.2d 619 (1980).
Before the referee, the claimant appeared wearing a fixed bridge prosthesis replacing the four lost teeth, but introduced photographs showing her appearance without the bridge. The employer contends that the referee erred by basing his award of compensation on the pictures of the claimant without the prosthesis, instead of comparing her appearance before the injury with her appearance with the prosthesis. We cannot agree.
The referee specifically found that the claimant's work-related accident caused:
a. A linear scar located just above the center of the claimant's upper lip measuring approximately 3/8ths of an inch in length.
b. A quite noticeable absence of the maxillary central incisors and a noticeable partial absence of the maxillary lateral incisors. Further the loss of the aforesaid piece detrimentally affects the Claimant's overall appearance.
The previous appearance of the teeth as a whole as part of the head and face is a matter that is proper for the factfinder to consider. However, there are various circumstances which could prevent such a comparison. Thus, we cannot hold such a comparison to be indispensable to the grant of benefits. The presence of the bridge prosthesis does not eliminate the claimant's disfigurement altogether. Instead, it diminishes the effect. Furthermore, the employer ignores the fact that the claimant suffered a second disfiguring injury, consisting of the scar above her lip. Consequently, we conclude that the referee properly exercised his discretion by granting the claimant compensation for one-third of the maximum period permitted by section 306(c)(22).
Accordingly, the decision of the board is affirmed.
ORDER
NOW, July 9, 1986, the order of the Workmen's Compensation Appeal Board, dated August 19, 1985, No. A-88054, is affirmed.