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NORMAN R. SMITH v. CIVIL SERVICE COMMISSION CITY PHILADELPHIA (07/22/80)

decided: July 22, 1980.

NORMAN R. SMITH, APPELLANT
v.
CIVIL SERVICE COMMISSION OF THE CITY OF PHILADELPHIA, APPELLEE. FRANCIS DIMARIO, APPELLANT V. CIVIL SERVICE COMMISSION OF THE CITY OF PHILADELPHIA, APPELLEE. FRANCIS A. LUPO, APPELLANT V. CIVIL SERVICE COMMISSION OF THE CITY OF PHILADELPHIA, APPELLEE. ROBERT A. AMANTO, APPELLANT V. CIVIL SERVICE COMMISSION OF THE CITY OF PHILADELPHIA, APPELLEE. FRANK J. MORABITO, APPELLANT V. CIVIL SERVICE COMMISSION OF THE CITY OF PHILADELPHIA, APPELLEE. WILLIAM J. PICKERING, APPELLANT V. CIVIL SERVICE COMMISSION OF THE CITY OF PHILADELPHIA, APPELLEE. JAMES A. BOOKER, APPELLANT V. CIVIL SERVICE COMMISSION OF THE CITY OF PHILADELPHIA, APPELLEE. SILVESTRO F. REALI, APPELLANT V. CIVIL SERVICE COMMISSION OF THE CITY OF PHILADELPHIA, APPELLEE. WILLIAM R. GREEN, APPELLANT V. CIVIL SERVICE COMMISSION OF THE CITY OF PHILADELPHIA, APPELLEE. CLIFFORD O. WAITERS, APPELLANT V. CIVIL SERVICE COMMISSION OF THE CITY OF PHILADELPHIA, APPELLEE



Appeals from the Orders of the Court of Common Pleas of Philadelphia County in cases of Norman R. Smith v. Civil Service Commission of the City of Philadelphia, No. 5763 July Term, 1972; Francis DiMario v. Civil Service Commission of the City of Philadelphia, No. 3818 May Term, 1973; Francis A. Lupo v. Civil Service Commission of the City of Philadelphia, No. 2754 December Term, 1972; Robert A. Amanto v. Civil Service Commission of the City of Philadelphia, No. 4163 July Term, 1972; Frank J. Morabito v. Civil Service Commission of the City of Philadelphia, No. 591 August Term, 1975; William J. Pickering v. Civil Service Commission of the City of Philadelphia, No. 3209 February Term, 1974; James A. Booker v. Civil Service Commission of the City of Philadelphia, No. 6113 June Term, 1974; Silvestro F. Reali v. Civil Service Commission of the City of Philadelphia, No. 2540 October Term, 1973; William R. Green v. Civil Service Commission of the City of Philadelphia, No. 3428 December Term, 1972; and Clifford O. Waiters v. Civil Service Commission of the City of Philadelphia, No. 6448 June Term, 1975.

COUNSEL

Stanley Bashman, for appellants.

Barry Grossman, Assistant City Solicitor, with him, James M. Penny, Jr., Deputy City Solicitor and Sheldon L. Albert, City Solicitor, for appellee.

Judges Wilkinson, Jr., Rogers and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 53 Pa. Commw. Page 167]

This case consists of ten appeals from final orders of the Court of Common Pleas of Philadelphia County. In all of these cases the lower court has affirmed a denial of benefits by the Philadelphia Civil Service Commission (Commission) under Regulation 32.*fn1 While each appeal will be considered separately in this decision, the general principles of law applicable to all of the appeals are stated at the outset to avoid unnecessary repetition.

Regulation 32 is similar in intent and form to The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. ยง 1 et seq., and this Court has held that principles enunciated in interpreting The Workmen's Compensation Act are applicable to Regulation 32 where similar substantive issues are involved. City of Philadelphia v. Hays, 13 Pa. Commonwealth Ct. 621, 320 A.2d 406 (1974).

Because the lower court did not take additional testimony in any of these appeals, our review is to determine whether any constitutional rights of the claimants have been violated, whether the Commission abused its discretion or committed an error of law, and whether the findings made by the Commission are supported by substantial evidence. City of Philadelphia v. Collins, 13 Pa. Commonwealth Ct. 643, 320 A.2d 421 (1974).

Under Regulation 32 the claimant has the burden to prove that a disability is present and that it is service connected, i.e. arising out of or in the course of employment in the civil service. Regulation 32.028. In each of the cases before us for review, the Commission

[ 53 Pa. Commw. Page 168]

    found that the injury was not service connected. Therefore, because the party with the burden did not prevail below, we will review each case to determine whether the Commission's findings are consistent with the conclusions of law and each other and can be sustained without a capricious disregard of the evidence.*fn2 Workmen's Compensation Appeal Board v. Keller, 27 Pa. Commonwealth Ct. 263, 366 A.2d 623 (1976).

As factual background it should be noted that each claimant received treatment at either Philadelphia General Hospital (PGH) or the Municipal Employees Compensation Clinic (Clinic). The determination that a disability existed and its extent and character in each case was made by the Chief of Municipal Medical Dispensary (City physician).*fn3 Each claimant had a hearing before a safety officer and appealed the denial of benefits to the Commission.

Norman R. Smith

Norman R. Smith had been a Philadelphia policeman for approximately fifteen years and has suffered a series of both on and off duty injuries to his back. The injury in issue occurred on February 20, 1971 when Smith was involved in an automobile accident

[ 53 Pa. Commw. Page 169]

    while on duty. He has not worked as a police officer since that injury.

On September 1, 1971, Smith was found to be permanently and partially disabled by the City physician with a diagnosis of "back pain -- cervical and back sprain." The Commission found that Smith's disability is not service connected.

Smith argues that the medical testimony presented establishes that the disability was caused by the February 20 accident and that the Commission erred in failing to give Regulation 32 the liberal construction mandated by case law. Hays, supra, at 625, 320 A.2d at 409.

The basis of the Commission's denial of benefits is that Smith failed to show a causal connection between his present disability and the accident of February 20. The Commission noted that Smith fell on January 1, 1971 while off duty and injured his ribs and back on the right side. Prior to that fall, during 1969 and 1970, Smith had been treated by his personal physician for back pain. Given these facts, the Commission found that a causal relationship between the accident of February 20, 1971 and Smith's disability had not been established. The evidence on causation presented by Smith consisted of his own testimony and that of Raymond O. Stein, M. D. While Dr. Stein mentioned the prior injuries to Smith's back, he does not address whether they did or could contribute to Smith's disability. Further, Dr. Stein at no point in his testimony makes a clear statement that the accident of February 20, 1971 caused Smith's disability.

While it is clear that Smith was injured on February 20, 1971, it is not obvious that this injury caused his present disability. Because of his history of back injuries and discomfort for which he was seeking medical treatment prior to February 20, 1971, the causal connection between the accident and his present

[ 53 Pa. Commw. Page 170]

    disability is not obvious. Unequivocal medical testimony on causation is necessary where the causal connection between the injury and the disability is not obvious. City of Philadelphia v. Murphy, 13 Pa. Commonwealth Ct. 630, 320 A.2d 411 (1974).

A careful review of the record in this case convinces us that Dr. Stein's testimony does not constitute unequivocal medical testimony. It was not unreasonable for the Commission to consider Smith's medical history of back problems. Smith simply failed to carry his burden of proof on causation.*fn4

We affirm.

Francis DiMario

Francis DiMario was injured while on active duty as a Philadelphia policeman on June 15, 1971. DiMario was descending stairs at a private residence while helping to carry a stretcher. The person being carried made a sudden movement causing DiMario to slip and fall down the remaining steps. The stretcher landed on top of him. He was admitted to PGH and has not returned to work since the accident. He was determined to be permanently and partially disabled by the City physician on July 6, 1972 with a diagnosis of "Lumbosacral sprain."

DiMario's medical history showed a series of on and off duty injuries. On January 23, 1970, he was involved in a collision while off duty and injured his neck.*fn5 On March 28, 1970, DiMario suffered groin and

[ 53 Pa. Commw. Page 171]

    back injuries while attempting to restrain a deranged patient at Hahnemann Hospital. He returned to active duty on June 22, 1970 and received no further treatment for this injury.

The Commission found that DiMario had failed to establish a causal connection between his injury and the 1971 accident. The Commission ordered DiMario to return to limited duty.

The record shows that DiMario was treated at PGH from the date of the accident until in or about July of 1972. In January of 1972, he was admitted to PGH and both a myelogram and an electro myelogram were performed. The results of these tests were inconclusive. The doctors suspected disc damage, but stated that exploratory ...


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