WCAB Must Provide Explanation For Changing Award of Disfigurement Benefits by WCJ
Facial disfigurement is the only aspect of the Pennsylvania Workers’ Compensation Act under which a Workers’ Compensation Judge (WCJ) has the discretion to award anywhere from zero to 275 weeks of workers’ compensation benefits. Since such injuries can range from barely noticeable to tremendously disfiguring, these cases vary widely in the amounts awarded. Note that the scarring can be traumatic, or from a work-related surgery. After a WCJ views a scar, and renders a decision, either side can appeal the decision to the Workers’ Compensation Appeal Board (WCAB).
What the WCAB can do with this decision was recently addressed by the Commonwealth Court of Pennsylvania in Keister Miller Investments LLC v. Workers’ Compensation Appeal Board (Hoch). Here, the injured worker (Claimant) was involved in a work-related motor vehicle accident wherein he suffered a broken nose and a laceration to the right side of his head.
A Claim Petition was filed, seeking compensation for the facial scarring. After viewing the scar, and describing it for the record, the WCJ granted the Claim petition, finding, as required, that the “work-related injury resulted in a serious and permanent disfigurement of Claimant’s face, which is of such a character as to produce an unsightly appearance and not usually incident to the employment.” In so doing, the WCJ awarded 40 weeks of benefits.
Unhappy with this result, Claimant appealed to the WCAB, who also viewed the scar. The description of the scar by the WCAB was very similar to that of the WCJ. The WCAB found that the award of 40 weeks was “outside the range normally awarded for similar scars.” Accordingly, the WCAB modified the award to 70 weeks of benefits.
The workers’ compensation insurance carrier then appealed this decision to the Commonwealth Court of Pennsylvania, who vacated the WCAB decision, and remanded it back to the WCAB for further explanation. Though acknowledging that the WCJ is the ultimate Finder of Fact, the Court agreed that the WCAB could modify the award of benefits if it believed the award given by the WCJ was significantly outside the range most WCJs would reach. The problem, the Court explained, is that, “the record is devoid of any evidence regarding precisely what information the Board relied upon in concluding that the WCJ’s award was significantly outside the range normally awarded for scars similar to Claimant’s scar.”
As such, the Court vacated the decision of the WCAB and remanded the case back to the WCAB for “substantial and competent evidence, that the WCJ’s award was significantly outside the range normally awarded for disfigurements similar to Claimant’s and (to) . . . adequately explain its basis for modifying the WCJ’s award.” As a practical matter, it is unlikely there would be sufficient basis for the WCAB to have made such a conclusion. Therefore, it would appear that future disfigurement awards made by WCJs in Pennsylvania are likely to be undisturbed on appeal.