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GARY L. FITZGERALD v. COMMONWEALTH PENNSYLVANIA (07/16/81)

decided: July 16, 1981.

GARY L. FITZGERALD, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, STATE EMPLOYEES' RETIREMENT BOARD, RESPONDENT



Appeal from the Order of the State Employees' Retirement Board in case of Gary L. Fitzgerald v. Commonwealth of Pennsylvania, State Employees' Retirement Board, dated February 20, 1980.

COUNSEL

Warren R. Keck, III, Voorhies, Keck, Rowley and Wallace, for petitioner.

Thomas J. Mangan, Jr., Assistant Attorney General, with him Harvey Bartle, III, Attorney General, for respondent.

Judges Mencer, Rogers and Williams, Jr., sitting as a panel of three. Opinion by Judge Mencer.

Author: Mencer

[ 60 Pa. Commw. Page 559]

Gary L. Fitzgerald (petitioner) has appealed from an order of the State Employees' Retirement Board (Board) which denied disability benefits. We vacate and remand.

The petitioner was employed as a State Police Trooper for over 10 years. In May of 1978, the petitioner was placed on indefinite sick leave without pay after having been advised by a physician that the stress of his job was inhibiting treatment for a duodenal ulcer. The petitioner subsequently applied for disability benefits, claiming that the stress of his employment had caused the ulcer which ultimately resulted in the surgical removal of 75 percent of his stomach. In addition, the petitioner's physician indicated that, if the petitioner returned to work, then he would probably suffer a relapse.

Section 5905(c) of the State Employees' Retirement Code (Code), 71 Pa. C.S. ยง 5905(c), provides, in pertinent part:

(c) In every case where the board has received an application for a disability annuity based upon physical or mental incapacity for the performance of the job for which the member is employed, taking into account relevant decisions by The Pennsylvania Workmen's Compensation Board, the board shall :

[ 60 Pa. Commw. Page 560]

(1) through the chief medical examiner, have the applicant examined and on the basis of said examination, and the subsequent recommendation by the chief medical examiner regarding the applicant's medical qualification for a disability annuity along with such other recommendations which he may make with respect to the permanency of disability or the need for subsequent reexaminations, make a finding of disability and whether or not the disability Page 560} is service connected or non-disability and in the case of disability establish an effective date of disability and the terms and conditions regarding subsequent reexaminations. . . . (Emphasis added.)

The petitioner's application was considered by a hearing examiner for the Board, who found that the petitioner was physically incapable of performing his job and that his physical condition arose from his employment. The hearing examiner recommended that the application for benefits should be granted. Without taking additional testimony and without making findings of fact or conclusions of law or adopting the findings and conclusions of the hearing examiner, the Board stated that "[t]he Board considered this recommendation and reviewed all the medical evidence ...


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