Agnello v. Workers' Compensation Appeal Board

DISSENTING OPINION BY

Senior Judge McCLOSKEY.

I respectfully dissent with the majority, although my compassion and sympathy lies with Phyllis Agnello (Claimant). The majority in this case has taken a disfigurement claim under Section 306(c)(22) of the Pennsylvania Workers’ Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 513(22), and converted it into an entirely new category of specific loss under this same Section.

With the enactment of Section 306(c), our General Assembly crafted and defino'J at least twenty separate categories of specific loss benefits. These categories include benefits for the loss of a finger, toe. *680hand, foot, leg, eye and for the loss of hearing. Most importantly, there is no separate category for the loss of teeth. Instead, a claimant must look to Section S06(c)(22) of the Act in order to recover benefits for such a loss. This Section specifically requires a “serious and permanent disfigurement of the head, neck or face, of such a character as to produce an unsightly appearance, and such as is not usually incident to the employment....” 77 P.S. § 513(22).

In order for an appearance to be unsightly, I believe that there must be a visual impact upon the viewer, in this case the Workers’ Compensation Judge (WCJ). As with any scar or disfigurement case, the WCJ would then present a description of the same in his/her findings of fact. After having the opportunity to observe Claimant at two separate hearings, the WCJ failed to find an unsightly appearance.1 Nevertheless, I believe that the majority, in its empathy for Claimant, completely disregarded the factual findings of the WCJ. The majority essentially substituted its own findings for those of the WCJ, stating that Claimant’s loss of three of her lower front teeth “detrimentally affected her overall appearance.” (Majority Opinion, at 679).

To the contrary, in his findings of fact, the WCJ indicated that he was “unable to see [Claimant’s] lower teeth above her lower lip” or to “see any difference with or without her lower teeth.” (WCJ’s Decision, Finding of Fact No. 5). Hence, the record in this matter is devoid of any evidence that supports a finding of an unsightly appearance. Yet, the majority reaches the conclusion that the WCJ abused his discretion in finding a lack of disfigurement. In reaching this conclusion, the majority relies heavily upon our prior decision in School District of Philadelphia v. Workmen’s Compensation Appeal Board (Gardiner), 98 Pa.Cmwlth.580, 511 A.2d 947 (1986), petition for allowance of appeal denied, 514 Pa. 626, 522 A.2d 51 (1987).

However, I believe that such reliance by the majority is misplaced. Admittedly, we essentially held in Gardiner that a bridge prosthesis does not eliminate a claimant’s disfigurement in the nature of a loss of teeth, but only diminishes the effect. The majority expands that holding to conclusively state that “dentures should not be considered when determining whether there was a disfigurement....” (Majority Opinion, at 679). I agree with such a holding.

Still, while it appears that the Board focused on Claimant’s dentures in concluding that Claimant did not suffer a serious and permanent disfigurement, I do not believe the WCJ focused exclusively on these dentures. Rather, as noted above, the WCJ premised his decision on his viewing of Claimant. As the majority noted in its discussion of Gardiner, the WCJ in that case specifically found “[a] quite noticeable absence of the maxillary central incisors and a noticeable partial absence of the maxillary lateral incisors” that “detrimentally affects the Claimant’s overall appearance.” Gardiner, 511 A.2d at 948. I believe these findings distinguish Gardiner from the matter presently before this Court.

Again, while I am sympathetic to Claimant, I believe that the manner in which the *681majority grants her relief infringes upon the legislative authority of our General Assembly and essentially carves out a completely new category of specific loss benefits. For these reasons, I would affirm the order of the Board.

. The Board affirmed the decision of the WCJ. We note that Claimant did not appear at the Board's hearing and, hence, did not avail herself of the opportunity to have the Board view her.