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CITY PHILADELPHIA v. BERNARD J. MURPHY (05/29/74)

decided: May 29, 1974.

CITY OF PHILADELPHIA, APPELLANT,
v.
BERNARD J. MURPHY, APPELLEE



Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of In Re: Appeal of Bernard J. Murphy, No. 559 May 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 Bashman, Wertheimer, Kane, Manfredi & Byrne, for appellee.

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

Author: Blatt

[ 13 Pa. Commw. Page 632]

On April 2, 1971, Bernard J. Murphy (claimant), a member of the Philadelphia Police Department since 1954, was assisting another officer in subduing a struggling prisoner, when he was allegedly struck on the left side of the head. He continued working, and apparently did not report the incident. The next day, he began to have headaches, and he felt bad enough on April 6, 1971 to see first his family doctor and then a physician from the Police and Firemen's Medical Association Clinic. Still in great discomfort, he was referred to Dr. Axel K. Olsen, a physician retained by the City of Philadelphia (City), to whom he complained of difficulty with memory and speech and of a left frontal and orbital head pain. Dr. Olsen subsequently reported that the claimant had "an occlusion of the left middle cerebral artery. . . ." He was hospitalized for a period of twenty days and was unable to return to duty until February 18, 1972.

Disability benefits were claimed under Regulation 32 of the Philadelphia Civil Service Commission (Commission),

[ 13 Pa. Commw. Page 633]

    and the claimant had a conference on September 15, 1971 with a "safety officer" appointed by the Police Department. After considering evidence presented by the claimant, the "safety officer" found that no proof had been presented that the claimant's difficulties were causally related to the blow on his head, and that, therefore, his disability was not service-connected. The Police Commissioner approved these findings and denied benefits. The claimant then appealed to the Commission, which also found a lack of evidence as to causation and held the disability not to be service-connected. The claimant next appealed to the Court of Common Pleas of Philadelphia County and presented to that court a letter from Dr. Olsen concerning the claimant's condition, which allegedly indicated that Dr. Olsen would be willing to testify as to causation.*fn1 The court decided that this letter should be evaluated by the Commission and remanded the case "with a direction that the Commission impanel a panel of three neurologists, or three neurosurgeons, or any combination of three such specialists. Following their report, the Commission will evaluate same and render its Opinion and Order." The City has now appealed this remand order of the court below 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,

[ 13 Pa. Commw. Page 6341968]

, 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 held 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) 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*fn2 relating to similar issues arising under Regulation 32.

A review of the record indicates that the Commission was undoubtedly correct in its finding that the claimant failed to establish a causal connection between the alleged blow on his head and his subsequent disability. The evidence consisted only of the claimant's testimony, plus letters and reports from physicians, and hospital records. Nowhere is there any medical evidence whatever specifically linking the blow on the head to the diagnosed occlusion of the left middle cerebral artery, and yet, as we noted in Hays, supra, the burden is clearly on the claimant to establish his eligibility for disability payments under Regulation 32. It is difficult to understand why the claimant failed to introduce any expert medical testimony on the issue of causation, especially after the departmental "safety ...


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