               THE COMMONWEALTH COURT OF PENNSYLVANIA

Keister Miller Investments LLC,              :
                   Petitioner                :
                                             :
                v.                           : No. 1303 C.D. 2017
                                             : SUBMITTED: January 12, 2018
Workers’ Compensation                        :
Appeal Board (Hoch),                         :
                 Respondent                  :


BEFORE:         HONORABLE P. KEVIN BROBSON, Judge
                HONORABLE ANNE E. COVEY, Judge
                HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE CEISLER                                   FILED: March 23, 2018
         Keister Miller Investments, LLC (Employer) petitions for review of the
August 30, 2017 order of the Workers’ Compensation Appeal Board (Board)
affirming in part and modifying in part, the decision of the Workers’ Compensation
Judge (WCJ), which awarded Wesley Hoch (Claimant) workers’ compensation
benefits for a disfigurement resulting from a work-related injury under Section
306(c)(22) of the Workers’ Compensation Act (Act).1 Employer argues that the
Board erred in modifying the WCJ’s decision by increasing the number of
compensable weeks of disfigurement benefits awarded to Claimant. We vacate and
remand for further explication and analysis.
                                        I. Background
         On December 12, 2015, while in the course and scope of his employment as
a truck driver for Employer, Claimant sustained a broken nose and a laceration to


   1
       Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §513(22).
the right side of his head when the truck he was driving rolled over. WCJ’s Op.,
6/13/17, Finding of Fact (F.F.) No. 7. On that same date, Employer filed a medical-
only notice of temporary compensation payable (no loss of wages) under Section
406.1(d)(1) of the Act,2 which converted to a notice of compensation payable on
March 13, 2016 by operation of law.3 F.F. No. 1.
         On September 22, 2016, Claimant filed a review petition, alleging that his
work-related injury resulted in disfigurement and scarring. Employer filed a timely
answer denying the material allegations of the petition.4 F.F. Nos. 2-3.

   2
       Section 406.1(d)(1) of the Act specifies that:

          In any instance where an employer is uncertain whether a claim is
          compensable under this act or is uncertain of the extent of its liability under
          this act, the employer may initiate compensation payments without
          prejudice and without admitting liability pursuant to a notice of temporary
          compensation payable as prescribed by the [D]epartment [of Labor and
          Industry].
   3
       See Section 406.1(d)(5)(i) of the Act, which provides:

         If the employer ceases making payments pursuant to a notice of temporary
         compensation payable, a notice in the form prescribed by the department
         shall be sent to the claimant and a copy filed with the department, but in no
         event shall this notice be sent or filed later than five (5) days after the last
         payment.

77 P.S. §717.1(d)(5)(i). See also Section 406.1(d)(6) of the Act, which provides:

         If the employer does not file a notice under paragraph (5) within the ninety-
         day period during which temporary compensation is paid or payable, the
         employer shall be deemed to have admitted liability and the notice of
         temporary compensation payable shall be converted to a notice of
         compensation payable.

77 P.S. §717.1(d)(6).

   4Employer denied that the description of the work-related injury on the notice of
compensation payable should be expanded to include a serious and permanent


                                                2
       The WCJ held an evidentiary hearing on December 19, 2016. At the hearing,
Claimant testified that he was injured on December 12, 2015 while driving a water
truck for Employer. He hit his head when the truck rolled over. Claimant suffered
a broken nose and a three-stitch laceration on the right side of his face. A piece of
glass punctured the right side of his nose, near his eye. Claimant described his
disfigurement as a laceration on the right side of his face, a right curvature of his
nose, and slight redness where the glass had been embedded in his nose. He had
never broken his nose before December 12, 2015. F.F. No. 7; WCJ’s Hr’g, Notes of
Testimony (N.T.), 12/19/16, at 8-20.
       After personally viewing Claimant’s face at the hearing, the WCJ found that
the December 12, 2015 work-related injury caused a linear scar on the right side of
Claimant’s face, approximately 1" to 1 ½" from the corner of his eye. The linear
scar runs downward toward his cheek and is approximately 1¼" long, and
approximately ⅛" to 1/16" wide. The upper part of the linear scar is a darker red than
the surrounding skin, while the lower part is “less red and more white than the
surrounding skin.” The top ¼" to ½" of the scar is visible from a distance of three
feet. WCJ’s Op., F.F. No. 8.
       The WCJ further found that the work-related injury caused an indentation in
Claimant’s nose, which was visible from a distance of two to three feet and appeared
as a slightly shadowy area. The indentation was approximately ¼" to ⅜" in diameter.
The WCJ also observed a right curvature in Claimant’s nose that began ½" to ¾"
from the top of the bridge of Claimant’s nose to the end of his nose. WCJ’s Op.,
F.F. No. 8.


disfigurement of the face of such a character as to produce an unsightly appearance and
that it is not usually incident to the employment. Reproduced Record at 6a.


                                          3
         Based on these findings, the WCJ determined that the December 12, 2015
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. F.F. No. 9.
         The WCJ concluded that Claimant met his burden of proving all elements of
a claim for disfigurement benefits under Section 306(c)(22) of the Act. The WCJ
also concluded that the question of valuation of the disfigurement provided
Employer with a reasonable contest. WCJ’s Op., Conclusion of Law, Nos. 1-2. The
WCJ granted Claimant’s claim petition and awarded him disfigurement benefits at
the weekly rate of $951.00 for a period of forty weeks from December 19, 2016,
plus various medical, interest, and other legal costs.5 WCJ’s Op. at 5.
         Claimant timely appealed to the Board, asserting that the WCJ did not
properly describe his disfigurement. Without providing specifics, Claimant also
asserted that the WCJ “capriciously disregarded the evidence in entering an award
outside the range most WCJs would select.” Respondent’s Br. at 2-3. After a
hearing on July 11, 2017 the Board viewed the Claimant’s face in-person. The Board
determined that the WCJ issued an award outside the range6 normally awarded for
similar scars and modified Claimant’s award of disfigurement benefits to seventy



   5 The order of the WCJ also directed Employer to pay all reasonable and necessary medical
expenses causally related to the December 12, 2015 injury; statutory interest on all past-due
benefits; Claimant’s litigation costs of $142.05; and 20% fee from the indemnity benefits as
counsel fees. See Section 440(a) of the Act, 77 P.S. §996(a) (in any contested case where an
insurer contests liability, a WCJ shall award counsel fees unless the employer provides a
reasonable basis for the contest). Section 440 was added by the Act of February 8, 1972, P.L. 25,
as amended.
   6   The Board stated that typical range of benefits for similar scars is sixty to eighty weeks.



                                               4
weeks of compensation and affirmed the WCJ’s decision in all other respects.
Employer timely appealed.7
                                           II. Issues
        Employer argues that the Board erred and abused its discretion in modifying
the WCJ’s disfigurement award since the Board failed to provide any evidence that
proved that the WCJ’s award was significantly outside the range normally awarded
for disfigurements.
                                        III. Discussion
   Section 306(c)(22) of the Act states:


        For a disability resulting from permanent injuries of the following
        classes, the compensation shall be exclusively as follows:
        .…

       (22) For serious and permanent disfigurement of the head, neck or face,
       of such a character as to produce an unsightly appearance, and such is
       not usually incident to the employment, sixty-six and two-thirds per
       centum of wages not to exceed two hundred seventy-five weeks.

77 P.S. §513(22).

        Section 306(c)(22) of the Act, by necessity, allows wide latitude in assessing
awards for disfigurement, as these types of determinations are extraordinarily fact
oriented and must be made on a case by case basis, taking into account, among other
factors, the nature and severity of the disfigurement. In the seminal Pennsylvania
Supreme Court case involving workers’ compensation disfigurement awards,

   7 Our scope of review is limited to determining whether an error of law was committed,
whether constitutional rights were violated, or whether necessary findings of fact are supported by
substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704; Green v.
Workers’ Comp. Appeal Bd. (US Airways), 155 A.3d 140, 147 n.12 (Pa. Cmwlth.), appeal denied,
169 A.3d 1081 (Pa. 2017).
                                            5
Hastings Industries v. Workmen’s Compensation Appeal Board (Hyatt), 611 A.2d
1187, 1190 (Pa. 1992), the Court characterized the amount of a disfigurement award
as “… a mixed question of fact and law” subject to the Board’s review. Id.
      While the Act itself provides limited guidance on how to calculate
disfigurement awards, the following cases offer some guidelines.
      First and foremost, courts have held that the most meaningful evidence
involves the fact-finder’s in-person observation of the disfigurement itself. In
Hastings, the Supreme Court explained why it is critical to observe a claimant’s
disfigurement first-hand:


      [I]t is the physical appearance of the claimant himself and the
      unsightliness of the disfigurement which constitutes the evidence
      considered by the [WCJ]. It is impossible to preserve this evidence
      with total accuracy in the record. Even if photographs, proverbially
      worth thousands of words, are included in the record, their accuracy
      depends on lighting, camera quality, skill of the photographer, and other
      factors which affect the truth they convey.

Id. at 1190.

      After the fact-finder observes the claimant, in order to qualify for a
disfigurement award, the fact-finder must determine that the disfigurement created
an “unsightly appearance.” Walker v. Workers’ Comp. Appeal Bd. (Health
Consultants), 42 A.3d 1231 (Pa. Cmwlth. 2012).
      Thus, in assessing awards for disfigurement, the WCJ has the first opportunity
to personally view the disfigurement to determine its seriousness and unsightliness.
McCole v. Workers’ Comp. Appeal Bd. (Barry Bashore, Inc.), 745 A.2d 72, 76-77
(Pa. Cmwlth. 2000). If there is an appeal, the Board is then obligated to personally
view the Claimant because that is the “only meaningful way for the [Board] to


                                      6
determine whether the WCJ’s opinion is supported by substantial competent
evidence.” Id. at 77 (internal quotation omitted).
      However, the fact that the Board accepts a WCJ's description of a claimant's
disfigurement does not preclude the Board from making an award different from that
of the WCJ. Hastings, 611 A.2d at 1190. If the Board, upon viewing claimant's
disfigurement, concludes that the WCJ entered an award significantly outside the
range most WCJs would select, the Board may modify the award as it deems
appropriate. Id. The public policy goal is to establish uniform awards for similar
types of disfigurements.
      In the instant matter, the WCJ visually assessed the Claimant, described the
disfigurement in great detail, and issued a disfigurement benefits award at the
weekly rate of $951.00 for a period of forty weeks. Claimant appealed arguing that
the award was outside the range most WCJs would select.
      The Board then personally viewed Claimant at the July 11, 2017 hearing.
Using slightly different language, the Board essentially adopted the WCJ’s
description of Claimant’s disfigurement. The Board indicated that the nose appeared
“crooked”, Board Op., 7/11/17, at 3, while the WCJ described a ¼" to ⅜" indentation
on Claimant’s nose visible from up to three feet and a right curvature in Claimant’s
nose that began ½" to ¾" from the top of the bridge of Claimant’s nose to the end of
his nose. Both indicated that the scar appeared red. Board Op., 7/11/17, at 4-5. The
WCJ indicated that this scar was visible from a distance of three feet while the Board
observed this scar could be seen from a close distance. Despite an essentially similar
description of the disfigurement the Board increased the award from forty weeks to
seventy weeks.




                                       7
       Employer next argues that the Board “failed to demonstrate that the [WCJ]
capriciously disregarded evidence by entering an award significantly outside the
range most [WCJs] would select and because it failed to provide any reviewable
basis for its determination of the acceptable range of benefits for the disfigurement.”
Petitioner’s Br. at 2. We agree.
       The key issue in the instant appeal 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.
       A review of prior decisions by both the Supreme and Commonwealth Courts
addressing this same issue reveals a persistent troubling pattern and lack of
transparency by the Board in the process of determining disfigurement awards.
       In Hastings, the claimant suffered work-related facial scarring for which a
referee8 awarded seventeen weeks of compensation. On appeal, the Board viewed
the scar and determined that the referee's description of the scar was accurate, but
found that the award of seventeen weeks compensation constituted “a capricious
disregard of competent evidence.” Hastings, 611 A.2d at 1188. As a result, the
Board amended the award to provide for fifty weeks of compensation, stating the


       8
         Prior to amendments in the Act, WCJs were referred to as referees. Section 413 of the
Act, 77 P.S. §772, states in pertinent part that:

       A worker's compensation judge ... may, at any time, modify, reinstate, suspend, or
       terminate a notice of compensation payable, an original or supplemental agreement
       or an award ... upon petition by either party with the department, upon proof that
       the disability of an injured employe has increased, decreased, recurred, or has
       temporarily or finally ceased, or that the status on any dependent has changed....

The 1996 amendment to this section of the Act substituted “workers' compensation judge” for
“referee” but did not otherwise substantially alter it.

                                           8
increase was necessary to achieve uniformity among WCJs in the state. In upholding
the Board’s determination, the Supreme Court found that:


      …applicable to loss of use cases; if the [Board] concludes, upon a
      viewing of a claimant's disfigurement, that the referee capriciously
      disregarded competent evidence by entering an award significantly
      outside the range most referees would select, the [Board] may modify
      the award as justice may require.

Id. at 1190-91.
      In this regard, the Supreme Court essentially holds that in order for a WCJ to
properly assess an award for a disfigurement claim, the WCJ must analyze awards
for similar disfigurements issued by WCJs around the state. The Supreme Court
further states that the failure to do so constitutes a capricious disregard of competent
evidence by the WCJ. Id. at 1190.
      While the Commonwealth Court adheres to the Hastings legal analysis, we
have also, over the years, repeatedly attempted to require the Board to provide
transparency and guidelines for how it determines what constitutes a “normal range”
for a particular disfigurement.
      In City of Pittsburgh v. Workers' Compensation Appeal Board (McFarren),
950 A.2d 358 (Pa. Cmwlth. 2008), after an appeal from a WCJ’s disfigurement
award, the Board viewed the claimant's scar and accepted the WCJ's description of
the scar. Id. at 360. The Board determined that most WCJs awards would be
between thirty to forty weeks of compensation for the scar and concluded that the
WCJ erred in entering an award below that range and increased the award from six
weeks to thirty-five weeks. Id. at 361. On appeal, this Court determined that the
Board failed to adequately explain its decision to modify the WCJ's award. We
stated:
                                       9
      After reviewing the record, the Court cannot conclude that the Board
      adequately explained its modification of the disfigurement award. The
      Board viewed [the claimant's] scar and accepted the WCJ's description
      of the scar . . . . Although the Board accepted this characterization of
      the scar . . . it nonetheless increased the award from six weeks to thirty-
      five weeks with no explanation other than that the proper range for the
      scar is thirty to forty weeks of compensation benefits. In furtherance of
      the goal of promoting statewide uniformity, the Board must explain
      how it determined that WCJs would select thirty to forty weeks of
      benefits for a surgical scar of one inch in visible length that was slight
      in its severity. The Board failed to do so here . . . .While the Board may
      not be bound by a local rule of thumb, the Board should provide an
      explanation for its decision to increase the disfigurement award to allow
      the Court to determine whether the Board’s decision is compatible with
      the goal as announced in Hastings.

Id. at 361 (emphasis added).

      Similarly, in Dart Container Corporation v. Workers' Compensation Appeal
Board (Lien), 959 A.2d 985 (Pa. Cmwlth. 2008) (Dart Container I), this Court,
relying on City of Pittsburgh, remanded the matter to the Board, stating:

      In the case sub judice, the Board considered the visual impact of
      [claimant’s] disfigurement, its location and relative severity of her
      scarring and explained that based upon its experience the range that
      most WCJs would select for a similar scar is between 60 to 75 weeks.
      However, the Board did not describe [claimant's] scar, did not state
      whether it rejected the WCJ’s description and did not explain why most
      WCJs would award within the 60 to 75 weeks’ range. Therefore, a
      remand is in order, but as noted in City of Pittsburgh upon adequate
      explanation the Board may indeed reach the same result.

Id. at 989 (emphasis added).
      On remand, the Board reached the same result, stating:
      …We accept the WCJ's description of [c]laimant's scar, as agreed to by
      the parties. We further respectfully note by way of explanation, that a
      WCJ, who acts alone in making an award based on an assessment of
      the claimant's scar, does not have the benefit of being able to consult
                                      10
       with other WCJs statewide to determine an appropriate award. Rather,
       he is limited to his subjective evaluation of the disfigurement. This
       Board, on the other hand, is comprised of multiple Commissioners who
       have the benefit and experience of viewing scars and awards in appeals
       from WCJ decisions statewide. It is based on our years of experience
       in reviewing such matters on a statewide basis, that we must again
       conclude that most WCJs throughout the Commonwealth of
       Pennsylvania would award between 60 and 75 weeks of compensation
       for [c]laimant's scar based on its location, color, contour, depth, length,
       and visibility. We therefore modify the WCJ's award to reflect a
       disfigurement award of 70 weeks.[9]

       Dart Container Corp. v. Workers' Comp. Appeal Bd. (Lien) (Pa. Cmwlth.,
No.1323 C.D. 2009, filed January 29, 2010) (unreported) (Dart Container II).
       In the instant matter, Employer relies on City of Philadelphia v. Workers’
Compensation Appeal Board (Doherty), 716 A.2d 704, 707 (Pa. Cmwlth. 1998), and
Lord & Taylor v. Workers’ Compensation Appeal Board (Bufford), 833 A.2d 1223
(Pa. Cmwlth. 2003) in support of its argument that the Board did not offer sufficient
evidence or explanation as to how or why it determined the acceptable range of
disfigurement benefits for Claimant’s scar.
       In City of Philadelphia, the Board increased the Claimant’s disfigurement
award from fifteen to seventy-five weeks on the sole basis “that the WCJ’s award is
below the range for which most WCJ’s [sic] would award compensation.” Id., at

   9 The employer in Dart Container I appealed the Board’s remand decision to this Court. On
appeal in Dart Container Corporation v. Workers' Compensation Appeal Board (Lien) (Pa.
Cmwlth., No. 1323 C.D. 2009, filed January 29, 2010) (unreported) (Dart Container II) this Court
found the Board’s essentially non-responsive explanation adequate. However, we should note that
as Dart Container II is an unpublished opinion, it has persuasive, not precedential, value.
Furthermore, the Court’s reasoning in Dart Container II represents a deviation from the analysis
of the other published and precedential Commonwealth Court cases cited herein, that found as
inadequate, virtually the same explanations for modified disfigurement awards as stated by the
Board in Dart II.



                                          11
707 (internal citation omitted). The employer appealed the Board’s modified award
arguing that the Board’s vague explanation failed to justify or explain its decision to
increase the WCJ’s award. This Court agreed, vacated the modified award, and
remanded the matter on this issue, noting that an adequate explanation required the
Board to indicate “what range is acceptable under [the] circumstances, what most
WCJs would award within that range or how the Board reached its conclusion that
most WCJs would award greater compensation.” Id., at 707 (emphasis added).10
        In Lord & Taylor, the Board increased the WCJ’s disfigurement award from
thirty to one hundred weeks. Again, the sole basis for the Board’s modification was
that the WCJ’s award was outside of the range that most WCJs would select. The
employer appealed the Board’s modified award to this Court arguing that the
Board’s vague explanation failed to justify or explain its decision to increase the
WCJ’s award. Once again, this Court agreed with the employer, vacated the
modified award, and remanded the matter to the Board emphasizing that the Board
should explain how it arrived at its determination of the range of awards that most
judges would select in a given case.11
        Hastings and its progeny underscores a persistent and troubling pattern in how
workers’ compensation disfigurement awards are awarded.
        First, as stated by both Supreme and Commonwealth Courts, WCJs apparently
exhibit a “capricious disregard of competent evidence” by failing to consider other

   10
      This Court affirmed that portion of the Board’s order pertaining to calculation of Claimant’s
average weekly wage. However, after this Court remanded the matter for further findings of fact
on the disfigurement award, there were no further appeals, so we cannot state what the Board
determined on remand.

   11
      Similar to the City of Philadelphia case noted above, after this Court in Lord & Taylor
remanded the matter, there were no further appeals, so we cannot state what the Board determined
on remand.

                                            12
awards for similar disfigurements.         This appears to mandate an affirmative
obligation on the part of all Pennsylvania WCJs to do an analysis of awards for
similar disfigurements from throughout Pennsylvania to assess an award that fits
within those standards. However, at the same time, the Board and this Court have
clearly recognized that State Board Commissioners alone have access to this
information, whereas the WCJs do not.
      If WCJs are required to consider comparable awards for similar
disfigurements, then by reason, the WCJs should be provided with the necessary
resources to easily access this information. If a WCJ does not have readily available
access to this information, it seems improper to characterize a WCJ’s decision
making standards as a “capricious disregard of competent evidence”.
      Second, in the instant matter, and in each of the cases cited herein, the Board
repeatedly failed to provide sufficient explanations as to how it arrived at
disfigurement awards, except to make bald assertions that the Board has
“experience” in these matters. The Board fails to establish that objective, rational,
and demonstrable standards to assess disfigurement awards are being utilized by the
Board, what data/information the Board is relying upon, or how and where is this
information maintained. The Board offers no guidance on precisely how many
“similar” disfigurement awards the Board reviewed, or the precise descriptions of
the other facial scars that the Board took into account. As these prior awards have
apparently established the “standard” range, a clear explanation of what information
the Board is relying upon is essential. This lack of explanation and information raises
the concern that the Board is simply substituting its judgment for that of the WCJ.
As stated earlier, Section 306(c)(22) of the Act, by necessity, allows wide latitude in
assessing awards for disfigurement, as these types of determinations are


                                      13
extraordinarily fact oriented and must be made on a case by case basis, taking into
account, among other factors, the nature and severity of the disfigurement.
      Thus, so-called “standards” for disfigurement awards have apparently been
established without any transparent explanation or information, despite repeated
efforts by this Court to rectify this deficiency.
      While this Court fully appreciates the equitable considerations in encouraging
uniformity in awards for similar disfigurements, the standards have yet to be
objectively demonstrated.
      For the reasons set forth above, this Court finds that the Board failed to cite to
substantial and competent evidence, that the WCJ’s award was significantly outside
the range normally awarded for disfigurements similar to Claimant’s and that the
Board failed to adequately explain its basis for modifying the WCJ’s award. As such
we cannot conduct meaningful appellate review.
      Accordingly, we vacate the order of the Board and remand to the Board for
further explication and analysis of its decision to modify the WCJ’s award of
disfigurement benefits, consistent with this Opinion.



                                         ELLEN CEISLER, Judge

Judge Fizzano Cannon did not participate in the decision in this matter.




                                       14
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Keister Miller Investments LLC,       :
                   Petitioner         :
                                      :
            v.                        :   No. 1303 C.D. 2017
                                      :
Workers’ Compensation                 :
Appeal Board (Hoch),                  :
                 Respondent           :


                                   ORDER

      AND NOW, this 23rd day of March, 2018, the order of the Workers’
Compensation Appeal Board, dated August 30, 2017, is hereby VACATED and this
matter is REMANDED for further explication and analysis consistent with this
Opinion.

      Jurisdiction relinquished.



                                    __________________________________
                                    ELLEN CEISLER, Judge
