56 Pa. Commw. 150 | Pa. Commw. Ct. | 1981
OPINION by
The two cases which have been consolidated for appeal here involve awards of benefits by the Workmen’s Compensation Appeal Board (Board) pursuant to The Pennsylvania Workmen’s Compensation Act (Act)
At the times of their respective injuries, claimant, Perry 0. Rose, and claimant, Dennis K. Stark, both worked as hot press operators or “trimmers” in employer’s forge shop. As trimmers, claimants work on the opposite side of a forging hammer from the hammerman who shapes the forging with the use
On March 22, 1979, claimant in 2234 G.D. 1979, Perry 0. Rose, filed three claim petitions alleging that on July 10,1978, August 16, 1978 and October 27, 1978 while working as a trimmer he sustained burns on his neck resulting in compensable disfigurement. After a hearing on April 24,1979 the referee awarded compensation. The Board affirmed.
On May 16, 1979, claimant in 564 O.D. 1980, Dennis K. Stark, filed three claim petitions alleging disfigurement of the neck and face resulting from burns sustained on August 23, 1978, September 20, 1978' and October 20, 1978. After a second hearing,
Section 306(c) (22) of the Act
The narrow issue raised by petitioner is whether the disfigurement suffered by each claimant here is usually incident to his employment within the meaning of Section 306(c) (22) of the Act.
Employer argues that the records below lack substantial evidence to support the referees’ findings and conclusions that the claimants’ disfigurements are not incident to their employment. In this very close case, our limited scope of review requires that we reject this argument in both cases.
In a case involving compensation for disfigurement, the claimant bears the burden of proving that his disfigurement is not usually incident to his employment. East Coast Shows v. Workmen’s Compensation Appeal Board, 37 Pa. Commonwealth Ct. 312, 313-14, 390 A.2d 323, 324 (1978). Questions of credibility, the choice between conflicting testimony, and accepting or rejecting the testimony of any witness in whole or in part are all within the referee’s unique fact-finding role. American Refrigerator Equipment Co. v. Workmen’s Compensation Appeal Board, 31 Pa. Commonwealth Ct. 590, 377 A.2d 1007 (1977).
2234 C.D. 1979
The evidence in claimant-Rose’s case consisted of Mr. Rose’s testimony, a plant superintendent’s testimony, a company job description, and a company
The referee’s and Board’s finding that scarring (i.e. disfigurement) was not incidental to a trimmer’s work is supported by substantial evidence in the form of cross-examination testimony of the plant superintendent. He stated that although he had been burned many times, he was not scarred or disfigured and that some people have no scars from their burns while others are permanently scarred. The employer did not offer any affirmative evidence to show that disfiguring scars, not just burns, are the usual result of working as a trimmer. Employer would have us draw favorable inferences from the record evidence concerning the frequency of burns on the job and conclude that disfigurement in the form of scars is incidental to the work of a trimmer. Because the claimant, not the employer, as the party who prevailed below, is entitled to the benefit of the most favorable inferences to be drawn from the evidence, American Refrigerator Equipment Co., supra, and because substantial evidence supports the fact that scarring is not a usual result of the work, we must affirm the Board’s order granting compensation.
564 C.D. 1980
The evidence in claimant-Stark’s case consisted of Mr. Stark’s testimony at two separate hearings and
On the basis of the evidence presented in the records below and in view of our appropriate scope of review, we will accordingly enter the following
Oudbe
AND Now, January 19, 1981, the orders of the Workmen’s Compensation Appeal Board, dated October 11, 1979 at No. A-77201 and dated February 7, 1980 at No. A-77921, are hereby affirmed.
Further, it is ordered that judgment he entered in favor of the claimant, Perry O. Rose, and against petitioner, Pittsburgh Forgings Company, self-insured, in the following amounts: (a) $213.00 per week,
Reasonable attorney’s fees in the amount of $340.80 are approved and the petitioner, self-insured, is directed to deduct said amount from the deferred compensation due claimant, Perry O. Rose, and forward it directly to:
Alexander J. Pentecost, Esq.
1420 Grant Building
Pittsburgh, Pa. 15219
The remaining compensation in the amount of $3,067.20 shall be paid directly to claimant, Perry O. Rose.
Further, it is ordered that judgment be entered in favor of the claimant, Dennis K. Stark, and against petitioner, Pittsburgh Forgings Company, self-insured, in the following amounts: (a) $213.00 per week, for a period of five weeks, beginning September 21, 1978 continuing through October 25, 1978, inclusive, in the total amount of $1,065.00, together with interest at the rate of 10% per annum on all deferred payments of compensation; (b) $213.00 per week, for a period of three weeks, beginning October 26, 1978 continuing through November 15, 1978, inclusive, in the total amount of $639.00, together with interest at the rate of 10% per annum on all deferred payments of compensation.
Act of June 2, 1915, PX. 736, as amended, 77 P.S. §1 et seq.
The first hearing on the petitions was held on July 17, 1979 before a referee who, due to serious illness, did not render a decision in the case. The case was subsequently reassigned to another referee who held a second hearing on September 10, 1979. Neither party had objections to this procedure.
Added by Section 1 of the Act of May 20, 1923, P.L. 966, as amended, 77 P.S. §513(22).
As the ultimate fact-finder, it was within the referee’s province to either disregard that portion of claimant’s testimony concerning the number of claim petitions filed by claimant or to consider that evidence nnpersuasive in proving that disfigurement usually results from the employment.