Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of In Re: Appeal of James R. Curtis, No. 4813 May Term, 1971.
John M. McNally, Jr., First Deputy City Solicitor, with him Nicholas Panarella, Jr., Assistant City Solicitor, John Mattioni, Deputy City Solicitor, and Martin Weinberg, City Solicitor, for appellant.
Yale B. Bernstein, with him Stanley Bashman and Bashman, Wertheimer, Kane, Manfredi & Byrne, for appellee.
Judges Kramer, Wilkinson, Jr. and Blatt, sitting as a panel of three. Opinion by Judge Kramer.
[ 13 Pa. Commw. Page 608]
James R. Curtis (claimant-appellee) is 48 years old and a former policeman for the City of Philadelphia (appellant).*fn1 On June 1, 1970, claimant-appellee injured his back while lifting a box of forms; he was on duty at the time. Claimant-appellee had sustained a prior on-duty injury to his back in 1958 which led to a disabling occurrence in 1965. After the June 1, 1970 injury, claimant-appellee filed a claim for temporary disability under Regulation 32 of the Philadelphia Civil Service Commission (Commission). This claim
[ 13 Pa. Commw. Page 609]
subsequently merged into the permanent and partial disability claim currently before us.
Three administrative conferences were held before the police department's Safety Officer. The Safety Officer's recommendation concluded that claimant-appellee was suffering from a permanent and partial disability diagnosed as osteoarthritis of the lumbar spine which was not service connected. The Police Commissioner adopted this recommendation and denied the claim. Thereafter, claimant-appellee appealed to the Commission. In its adjudication, which denied claimant-appellee's appeal, the Commission found that: "Appellant submitted the opinion of Seymour Schlomchik, M.D., an orthopedic surgeon, who diagnosed appellant's condition as a chronic sprain of the lower back. However, at the hearing before us appellant never alleged or suggested in any way that his disabling condition was anything other than osteoarthritis of the lumbar spine.
"We have carefully reviewed the entire matter and, while we sympathize with appellant, we find it impossible to conclude, on the basis of the record before us, that appellant has proven the service-connection of the disability by a fair preponderance of the evidence."
Claimant-appellee then appealed to the Court of Common Pleas of Philadelphia County which remanded the case to the Commission. The lower court's remand directed the Commission to reconsider its legal conclusion in light of the fact that the medical report of claimant-appellee's doctor, "expressed [Dr. Schlomchik's] opinion that the 'original injury (1958) is basically responsible for his present condition.' As the opinion of an orthopedic surgeon, this was entitled to great weight." The City of Philadelphia has appealed to this Court from the lower court's order.
Initially, we must note that with limited exceptions, the general rule of law ...