66 Pa. Commw. 499 | Pa. Commw. Ct. | 1982
Opinion by
Purex Corporation (Petitioner) appeals from an order of the Workmen’s Compensation Appeal Board (Board) which affirmed a referee’s order awarding workmen’s compensation benefits to Bichard B. Boss (Claimant) for serious and permanent disfigurement under Section 306(c) (22) of The Pennsylvania Workmen’s Compensation Act (Act).
Claimant was employed by Petitioner as a checker and forklift operator when, on January 7,1978, he was injured in a fall while at work. A Notice of Compensation Payable was entered whereby Claimant received compensation benefits effective January 8, 1978. Claimant subsequently executed a final receipt reflecting his ability to return to work on April 24, 1978. On or about May 18,1978, Claimant filed a claim petition alleging disfigurement as a result of facial scarring and a broken nose suffered in the accident at work.
The referee amended the claim petition to a petition to set aside a final receipt and found, after hearings were held on the matter, that Claimant was seriously and permanently disfigured by spotted scarring on either side of the bridge of his nose, a three inch scar on the forehead and a bend in his nose due to a
A claimant who seeks to set aside a final receipt has the burden to prove conclusively that all disability due to the accident has not in fact terminated. Forbes Pavilion Nursing Nome, Inc. v. Workmen’s Compensation Appeal Board, 18 Pa. Commonwealth Ct. 352, 336 A.2d 440 (1975). Moreover, in order to receive an award pursuant to Section 306(c) (22) of the Act, a claimant must establish that his disfigurement 1) is serious and permanent, 2) results in an unsightly appearance and 3) is not usually incident to his employment. East Coast Shows v. Workmen’s Compensation Appeal Board, 37 Pa. Commonwealth Ct. 312, 390 A.2d 323 (1978). 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 Corp. v. Workmen’s Compensation Appeal Board, 52 Pa. Commonwealth Ct. 641, 416 A.2d 619 (1980).
Petitioner’s first contention in this appeal is that the referee’s finding of serious and permanent disfigurement is not supported by substantial evidence. The issue of the seriousness of a disfigurement is one of fact for the referee to determine upon a view of the Claimant. Sun Shipbuilding and Dry Dock Co. v. Workmen’s Compensation Appeal Board, 41 Pa. Commonwealth Ct. 302, 398 A.2d 1111 (1979), aff’d, 447 U.S. 715 (1980). Since the referee has viewed Claimant in this case, we cannot disturb his conclusion that Claimant’s disfigurement is serious.
In the instant case, the medical evidence, in the form of medical reports, establishes that Claimant indeed suffered a fractured nose and multiple contusions and abrasions of the face, forehead and scalp. None of the reports, however, specifically address the permanence of the scarring and disfigured nose alleged by Claimant.
Petitioner points to the fact that there is no formal record of what transpired at a hearing held on July 12, 1978, at which time the referee apparently examined Claimant’s alleged disfigurement,
Petitioner next argues that the referee erred in awarding compensation benefits for twenty-six weeks in this case since the award was based in part on written medical reports. Petitioner requests that, should
Where any claim for compensation at issue before a referee involves twenty-five weeks or less of disability, either the employe or the employer may submit a certificate by any qualified physician as to the history, examination, treatment, diagnosis and cause of the condition . . . and such statements shall be admissible as evidence of medical and surgical or other matters therein stated and findings of fact may be based upon such certificates or such reports.
We have held that this language evidences the General Assembly’s intent to exclude physicians’ certificates in claims, as here, involving more than twenty-five weeks of disability. Such certificates need only be excluded, however, when the party opposing their admission makes an objection. D. L. Clark Co. v. Workmen’s Compensation Appeal Board, 49 Pa. Commonwealth Ct. 535, 411 A.2d 1269 (1980); Young v. Workmen’s Compensation Appeal Board, 39 Pa. Commonwealth Ct 265, 395 A.2d 317 (1978). Since the record does not include any objection made by Petitioner to the admission of Claimant’s medical report in this case, the objection has been waived.
Petitioner next contends that the Board incorrectly limited its scope of review by disregarding its own view of Claimant at oral argument. Petitioner’s ar
Petitioner’s final argument relates to the Board’s denial of its petition for a rehearing by order dated April 20, 1981. Since no appeal has been taken from that order of the Board, we cannot undertake a review thereof.
We, accordingly, will affirm the order of the Board.
Order
• It is ordered that the order of the Workmen’s Compensation Board of Appeal, dated February 13, 1981, No. A-79784 is hereby affirmed.
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §513(22).
While both Industrial Casting Co. and East Coast Shows have been effected by our Supreme Court’s decision in McGartland v. Ampco-Pittsburgh Corp., 489 Pa. 205, 413 A.2d 1086 (1980), discussed infra, we believe the legal proposition for which they are cited in this opinion has continued vitality.
In fact, one medical report introduced by Petitioner indicates that, as of March 24, 1978, the physician believed that Claimant’s injury would not result in facial or head disfigurement. We do not think that this portion of the report, however, is necessarily in contradiction with the referee’s finding of permanent disfigurement made after he had the opportunity to view Claimant approximately one year after the physician’s report was filed.
With regard to his prior examination of Olaimant, the referee stated at a hearing held on March 20,1979 that
[Olaimant] mentioned facial sears and disfigurement. He indicated to me the last time that he was here, that he had spotting on the site [sic] of his nose, that he had a bent nose, and that he had a scar across the top of his head. I evaluated those.
We note that Petitioner also introduced a medical report prepared by the same physician, and containing some of the same information, as the report submitted by Claimant. Thus, even if Petitioner had properly objected to Claimants medical report, the medical report introduced by Petitioner would remain a part of the record.