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DALE BOUGHTER v. COMMONWEALTH PENNSYLVANIA (12/22/80)

decided: December 22, 1980.

DALE BOUGHTER, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF PUBLIC WELFARE, RESPONDENT



Appeal from the Order of the Department of Public Welfare in the case of Appeal of Dale Boughter, dated April 27, 1979.

COUNSEL

Joseph Kearney, for petitioner.

Edward P. Carey, Assistant Attorney General, with him James S. Marshall, Assistant Attorney General, for respondent.

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

Author: Wilkinson

[ 55 Pa. Commw. Page 522]

This is an appeal from an order of the Hearing and Appeals Unit of the Department of Public Welfare (DPW) affirming the recommendation of the hearing examiner which upheld the Youth Development Center's (YDC) decision to discontinue petitioner's Act 534*fn1 benefits. Act 534 provides, inter alia, that any employe of a YDC under the DPW

[ 55 Pa. Commw. Page 523]

"who is injured during the course of his employment by an act of any inmate or any person confined in such institution . . . shall be paid, by the Commonwealth of Pennsylvania, his full salary, until the disability arising therefrom no longer prevents his return as an employe of such department."

The relevant facts as found by the hearing examiner are as follows. Petitioner had been employed by the DPW's YDC as a Houseparent. He had been receiving benefits as of July 8, 1977 as a result of an injury sustained on July 7, 1977 when a student of petitioner kicked a chair which struck petitioner's left knee. The benefits were predicated on the report of an orthopedic surgeon which indicated that petitioner was totally and permanently disabled.

On October 6, 1978, pursuant to DPW Manual Section 8453.54,*fn2 the YDC forwarded to the orthopedic surgeon a job description list of light/limited duties and requested a medical opinion as to petitioner's ability to perform such light duties.

On October 16, 1978, the orthopedic surgeon, after examining petitioner on October 13, indicated in a written report to the YDC that petitioner was able to work at a central switchboard.

Based on the medical report, the personnel office of the YDC notified ...


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