Summary
In Workmen's Compensation Appeal Board v. Jones Laughlin Steel Corp., 25 Pa. Commw. 542, 360 A.2d 854 (1976), we stated the general rule that where the referee's findings are supported by competent evidence the Board generally has no power to take additional evidence or to disturb the referee's findings.
Summary of this case from Industrial Casting Co. v. CommonwealthOpinion
July 19, 1976.
Workmen's compensation — Power of Workmen's Compensation Appeal Board — Additional evidence — The Pennsylvania Workmen's Compensation Act, Act 1915, June 2, P.L. 736 — Disfigurement — View of claimant — Scope of appellate review — Error of law — Findings of fact — Substantial evidence.
1. Under The Pennsylvania Workmen's Compensation Act. Act 1915, June 2, P.L. 736 the Workmen's Compensation Appeal Board ordinarily cannot hear additional evidence where the referee's findings are supported by competent evidence and cannot make new findings contrary to those of the referee without additional evidence. [544]
2. In a disfigurement case, The Pennsylvania Workmen's Compensation Act, Act 1915, June 2, P.L. 736 authorizes the Workmen's Compensation Appeal Board to view the claimant's alleged disfigurement on appeal from a referee, and such view is evidence which can support new findings by the Board. [544-5]
3. In a workmen's compensation case where the party with the burden of proof prevailed before the Workmen's Compensation Appeal Board which considered additional evidence, review by the Commonwealth Court of Pennsylvania is to determine whether an error of law was committed and whether necessary findings of fact of the Board were unsupported by substantial evidence. [545]
Submitted on briefs February 5, 1976, to Judges CRUMLISH JR., WILKINSON, JR., and MENCER, sitting as a panel of three. Argued June 7, 1976, before President Judge BOWMAN and Judges CRUMLISH, JR., WILKINSON, JR., MENCER, and BLATT. Judges KRAMER and ROGERS did not participate.
Appeal, No. 1124 C.D. 1975, from the Order of the Workmen's Compensation Appeal Board in case of Robert Peter Ewing v. Jones Laughlin Steel Corporation, No. A-68910.
Petition with Department of Labor and Industry for workmen's compensation benefits. Benefits awarded. Petitioner appealed to the Workmen's Compensation Appeal Board. Award modified. Employer appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Raymond F. Keisling, with him Will Keisling, for appellant.
William R. Caroselli, with him James N. Diefenderfer, for appellees.
Robert Peter Ewing (claimant) filed a claim petition in accord with the provisions of The Pennsylvania Workmen's Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P. S. § 1 et seq., seeking benefits for a serious and permanent disfigurement not usually incident to his employment and arising from an injury he sustained on September 9, 1973 during the course of his employment with the Jones Laughlin Steel Corporation.
The claimant was the only witness to appear before the referee who, by order dated August 9, 1974, awarded 3 weeks' compensation for the scar on claimant's forehead. This award was appealed by the claimant to the Workmen's Compensation Appeal Board (Board). When the argument was held before the Board on February 6, 1975, the claimant appeared and his scar was viewed by the members of the Board. The Board, by order of July 21, 1975, modified the referee's award and awarded 22 weeks' compensation to the claimant. This appeal followed.
34 Pa. Code § 111.14(a) provides in pertinent part: "In all cases before the Board the parties or their counsel shall appear to present their cause. In cases involving disfigurement or communication the claimant shall appear in person."
Both awards were at the rate of $100 per week
In Universal Cyclops Steel Corporation v. Krawczynski, 9 Pa. Commw. 176, 305 A.2d 757 (1973), we held that, since May 1, 1972, the effective date of the applicable amendment to the Act, tile Board's scope of review has been changed in that the Board cannot make findings of fact contrary to those found by the referee unless it chooses to hear evidence. In Lebanon Steel Foundry v. Workmen's Compensation Appeal Board, 12 Pa. Commw. 530, 317 A.2d 315 (1974), we held that the Board did receive tangible and concrete evidence by virtue of its personal view of a claimant's injured finger and therefore the Board had the power and authority to make its own finding based upon the record before it and its view of the injured finger.
However, in Forbes Pavilion Nursing Home, Inc. Workmen's Compensation Appeal Board, 18 Pa. Commw. 352, 336 A.2d 440 (1975), we held that where the referee's findings are supported by competent evidence the Board has no power to take additional evidence or to disturb the referee's findings. In the instant case, we are satisfied that the Board, as in Lebanon Steel Foundry, supra, did, by its personal view of claimant's scar, receive evidence and that to do so in a disfigurement case was proper as an exception to our general holding in Forbes.
Therefore, the Board had the power and authority to make its own finding, based upon the record before it and its view of the scar. Since the Board's finding and conclusion are based upon evidence presented to the Board, our scope of review is the stone as it was before Universal Cyclops, supra. Where the party with the burden prevailed below, we may reverse only if the findings of the Board are not supported by substantial evidence or for an error of law. We cannot conclude here that the claimant did not meet his burden of proof or that there was not substantial evidence to support the critical finding of the Board Also we discern no error of law on this record.
Accordingly, we make the following
ORDER
AND NOW, this 19th day of July, 1976, the appeal of Jones Laughlin Steel Corporation is hereby dismissed, and the decision and award of the Workmen's Compensation Appeal Board is affirmed. Accordingly, it is ordered that judgment be entered in favor of Robert Peter Ewing and against Jones Laughlin Steel Corporation and the Hartford Insurance Group in the amount of $100 per week, beginning July 23, 1974 and continuing for a period of 22 weeks, in the total sum of $2200, together with interest at the rate of 10 percent per annum on deferred payments of compensation from the date due to the date paid, all within the terms and limits of The Pennsylvania Workmen's Compensation Act.