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ANNE B. WILSON v. COMMONWEALTH PENNSYLVANIA (07/24/81)

decided: July 24, 1981.

ANNE B. WILSON, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, BUREAU OF VOCATIONAL REHABILITATION, DEPARTMENT OF LABOR AND INDUSTRY, RESPONDENT



Appeal from the Order of the State Civil Service Commission in the case of Anne B. Wilson v. Bureau of Vocational Rehabilitation, Department of Labor and Industry, Appointing Authority, Appeal, No. 2599.

COUNSEL

Lee B. Balefsky, Greitzer and Locks, for petitioner.

Daniel R. Schuckers, Assistant Attorney General, for respondent.

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

Author: Macphail

[ 61 Pa. Commw. Page 42]

Anne B. Wilson (Petitioner) is appealing the adjudication and order of the State Civil Service Commission (Commission) affirming her removal from a position as Clerk Typist I, regular status, with the Philadelphia District Office of the Bureau of Vocational Rehabilitation under the Department of Labor and Industry (Appointing Authority). The Commission considered Petitioner's removal from classified service to be a resignation by abandonment under Section 806 of the Civil Service Act, Act of August 5, 1941, P.L. 752, as amended, 71 P.S. § 741.806.*fn1

On May 22, 1978, Petitioner suffered a work-related head injury. Effective the date of her injury, workmen's compensation benefits were paid Petitioner and the Appointing Authority granted Petitioner workmen's compensation disability leave. On

[ 61 Pa. Commw. Page 43]

September 22, 1978, the State Workmen's Insurance Fund filed a petition to terminate compensation alleging full recovery by Petitioner, which petition was accompanied by a physician's affidavit to that effect based on an examination of Petitioner. The filing of the termination petition with the physician's affidavit of recovery operated as an automatic supersedeas under Section 413 of The Pennsylvania Workmen's Compensation Act, (Workmen's Compensation Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 774. Thus, on September 22, 1978, payments to Petitioner were immediately suspended pending a hearing and decision by a referee on the averments of the termination petition.

On October 2, 1978, John C. Nolan, Administrator of the Philadelphia District Office of the Bureau of Vocational Rehabilitation, sent a letter to Petitioner informing her that his office had received word from the central personnel office in Harrisburg to the effect that "the physician who examined you several weeks ago for Workmen's Compensation had advised you that your claim for Workmen's Compensation Disability Leave would be terminated September 15, 1978." In light of that information given him regarding Petitioner's disability status, Mr. Nolan's letter requested that Petitioner inform him by October 5, 1978, of her plans to return to work. His letter also suggested some options regarding her employment status that she might want to consider if she was not returning to work. On October 4, 1978, Petitioner called Mr. Nolan, told him she had an appointment with her personal physician the next day, and promised to call Mr. Nolan afterwards to tell him whether or not she would be returning to work. Petitioner failed to contact Mr. Nolan as promised; hence Mr. Nolan requested the central personnel office to place Petitioner on "absent without leave" status. Petitioner subsequently was

[ 61 Pa. Commw. Page 44]

    removed from her job by letter dated October 16, 1978, effective October 13, 1978, for being absent five consecutive working days without notice to the Appointing Authority.

On an appeal from an adjudication by the State Civil Service Commission our scope of review is limited to a determination of whether or not the constitutional rights of the appellant have been violated, an error of law has been committed, or a necessary finding of fact is unsupported by substantial evidence. Henley v. State Civil Service Commission, 39 Pa. Commonwealth Ct. ...


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