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CITY PHILADELPHIA v. JOSEPH L. EVANS (05/29/74)

decided: May 29, 1974.

CITY OF PHILADELPHIA, APPELLANT,
v.
JOSEPH L. EVANS, APPELLEE



Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of In Re: Appeal of Joseph L. Evans, No. 3670 March Term, 1972.

COUNSEL

John M. McNally, Jr., First Deputy City Solicitor, with him Nicholas Panarella, Jr., Assistant City Solicitor, James M. Penny, Jr., Assistant City Solicitor, John Mattioni, Deputy City Solicitor, and Martin Weinberg, City Solicitor, for appellant.

Yale B. Bernstein, with him Stanley Bashman and Basman, Wertheimer, Kane, Manfredi & Byrne, for appellee.

Judges Kramer, Wilkinson, Jr. and Blatt, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 14 Pa. Commw. Page 2]

Joseph L. Evans (claimant) was a police officer for the City of Philadelphia (City) on October 17, 1969, when he became involved in a foot pursuit of two suspects. He chased them into a subway entrance, slipped on the steps, fell and injured his back. Since then he has served only one full day on regular active duty, but he has been able to perform limited duty since November 19, 1970.

[ 14 Pa. Commw. Page 3]

The claimant sought disability benefits pursuant to Regulation 32 of the City Civil Service Commission (Commission) which were denied following administrative review by the police department. He then appealed to the Commission, which held that his disability was not service-connected and, therefore, refused to award benefits. When he appealed to the Court of Common Pleas of Philadelphia County, the case was remanded to the Commission for consideration of further medical evidence which the court said that he then had available. The City has now appealed to this Court.

We have recently considered the application of Regulation 32 and the procedures involved thereunder in City of Philadelphia v. Hays, 13 Pa. Commonwealth Ct. 621, 320 A.2d 406 (1974). As we pointed out there, appeals from the Commission are taken to the lower court pursuant to the Local Agency Law, Act of Dec. 2, 1968, P.L. 1133, 53 P.S. ยง 11301 et seq. On appeals therefrom to this Court, when, as here, the lower court has not held a hearing de novo, we hold that our scope of review is limited to a determination of whether or not 1) the constitutional rights of the appellant were violated by the Commission or 2) if the Commission manifestly abused its discretion or committed an error of law, and 3) the findings of fact made by the Commission are supported by substantial evidence. We also held that in considering claims brought pursuant to Regulation 32, the procedures to be followed are those set forth in the said regulation, in the City Home Rule Charter, and in the Local Agency Law, and as to substantive questions, we approved the use of appropriate precedents under the Workmen's Compensation Act*fn1 relating to similar issues arising under Regulation 32.

[ 14 Pa. Commw. Page 4]

The parties herein have stipulated that the claimant did suffer an accident while on duty and that he did injure his lower back. The questions which arise, however, concern the claimant's disability and the cause thereof.

Medical reports from physicians employed by the City indicated that a congenital back defect and obesity were contributing factors to the claimant's disability, although they did not specifically consider the effect of the accident. A report from the claimant's physician, Dr. Seymour Shlomchik, provided the following diagnosis: "1. Chronic sprain of the myoligamentous structures supporting the cervical spine, with principal involvement of the right trapezius muscle. 2. Acute sprain . . . of the lumbosacral spine, with principal involvement of the right and left sacrospinalis muscles." Dr. Shlomchik considered the possibility of a congenital defect but said that this was "clinically insignificant." He went on to state that the claimant "has fairly well recovered from the injury to the cervical spine, but has a residual fibro-myositis of the right trapezius muscle. I feel he still has a significant problem with regard to his lower back. I feel that any stress or activity could throw him into a rather acute phase, which would be totally disabling, and dangerous in his particular field of endeavor. Injuries to the lower back of the type sustained have a tendency to incompletely recover, leaving the low back in a residually weakened and vulnerable state."

A review of the record indicates that the Commission could have reasonably decided either for or against the claimant, for the evidence on causation was marginal at best. The fact that the claimant might have been suffering from a prior congenital defect, as the physicians for the City indicated, would not, of course, has disqualified him ...


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