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GALLAGHER v. BUTLER CITY EMPLOYEES PENSION BOARD (01/06/72)

decided: January 6, 1972.

GALLAGHER
v.
BUTLER CITY EMPLOYEES PENSION BOARD



Appeal from the Order of the Court of Common Pleas of Butler County, in case of Edward A. Gallagher v. Butler City Employees Pension Board, A.D. 157, March Term, 1971.

COUNSEL

Richard L. McCandless, with him Coulter, Gilchrist, Dillon & McCandless, for appellant.

Martin J. O'Brien, for appellee.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Manderino, Mencer and Rogers. Judge Manderino did not participate in the decision. Opinion by Judge Mencer.

Author: Mencer

[ 4 Pa. Commw. Page 105]

This appeal raises the single question of whether or not the record contains the required proof of disability to entitle Edward A. Gallagher, appellant, to receive compensation under the terms and provisions of the Act of May 23, 1945, P.L. 903, as amended, 53 P.S. § 39371 et seq.

Appellant was employed by the City of Butler, a third class city, as a chief mechanic for a period in excess of 19 years and was under the age of 55 years on February 9, 1970, the date he last worked for the City of Butler and the date he entered the Deshon Veterans

[ 4 Pa. Commw. Page 106]

Hospital at Butler, Pennsylvania, with a back injury. Appellant was discharged from the hospital on May 1, 1970 and placed on a posthospital care program. He applied to the Butler City Employees Pension Board (Board) for a disability pension under the Act of May 23, 1945, P.L. 903, § 4, as amended, 53 P.S. § 39374, which had been totally adopted by the City of Butler under Ordinance No. 685 on December 8, 1948.

The Board appointed three practicing physicians to examine appellant and, after all submitted their reports, the Board denied the disability pension request. Appellant appealed to the Court of Common Pleas of Butler County pursuant to the Local Agency Law, Act of December 2, 1968, P.L. , No. 353, 53 P.S. § 11301 et seq. A de novo hearing was held following which the Court dismissed the appeal because there was insufficient evidence to establish proof that appellant was in a condition of health which would permanently disable him from performing the duties of his position. We have carefully reviewed the record and agree with the conclusion reached by the court below and therefore we affirm its dismissal of the appeal from the decision of the Board.

The part of the statute as found in 53 P.S. § 39374 which has application here reads as follows: "Should an officer or employe, however, become so permanently disabled as to render him unable to perform the duties of his position or office after fifteen (15) years of service, and before attaining the age of fifty-five (55) years, he shall be entitled to full compensation during such disability. Proof of such disability shall consist of the sworn statement of three (3) practicing physicians, designated by the board, that the employe is in a condition of health which would permanently disable him from performing the duties of his position or office. Such person shall thereafter be subject to physical examination at any reasonable time or times, upon

[ 4 Pa. Commw. Page 107]

    order of the board, and upon his refusal to submit to any such examination, his ...


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