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MARLIN CUTSHALL v. PUBLIC SCHOOL EMPLOYEES' RETIREMENT BOARD (11/23/82)

decided: November 23, 1982.

MARLIN CUTSHALL, PETITIONER
v.
THE PUBLIC SCHOOL EMPLOYEES' RETIREMENT BOARD, RESPONDENT



Appeal from the Order of the Employees' Retirement Board in case of In Re: Claim of Marlin Cutshall, SS No. 209-28-9046.

COUNSEL

N. Christopher Menges, with him Heather L. Dorion, for petitioner.

Marsha V. Mills, Assistant Chief Counsel, for respondent.

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

Author: Rogers

[ 70 Pa. Commw. Page 147]

Marlin D. Cutshall was employed as a teacher of the Spanish language in a public school from 1965 until sometime in the early months of 1975, at which latter time he applied for and was granted the disability allowance (now called disability annuity) provided by Section 503(6) of the then applicable Public

[ 70 Pa. Commw. Page 148]

School Employees' Retirement Code of 1959, Act of June 1, 1959, P.L. 350, Section 503(6) required that applications for disability be referred to a physician and that they be approved by the Public School Employees' Retirement Board if the physician certified that the applicant was physically or mentally incapacitated for duty. Since he was granted an annuity, we may assume that Mr. Cutshall was so certified. The Public School Employees' Retirement Code of 1959 was repealed and replaced by the Public School Employees' Retirement Code, Act of October 2, 1975, P.L. 298, as amended, 24 Pa. C.S. ยง 8101 et seq.

Sometime in the early months of 1977, the Retirement Board asked Mr. Cutshall to supply medical evidence of his continued disability. He submitted physicians' reports reporting his condition to be as we later describe it. On July 21, 1977 the Retirement Board summarily discontinued Mr. Cutshall's annuity as of June 1, 1977 on the ground that he had not submitted sufficient evidence of his continued disability.

After July 21, 1977, Mr. Cutshall submitted more physicians' reports and seems to have undergone examination by a physician chosen by the Retirement Board all to no avail. On February 17, 1978 the Retirement Board reaffirmed its decision discontinuing the annuity. Mr. Cutshall filed a petition for review of this decision to this court to which the Retirement Board responded for the first time suggesting that a hearing should be held and requesting that the matter be remanded for that purpose. Our order to this effect was filed April 28, 1978. The hearing before an examiner chosen by the Board was conducted on April 30, 1979. The hearing examiner filed his findings, conclusions and an order deciding the matter against Mr. Cutshall on the merits on December 12, 1979. On March 24, 1980 the Retirement Board by letter to Mr.

[ 70 Pa. Commw. Page 149]

Cutshall again decided that his disability annuity was properly discontinued as of June 1, 1977.*fn1

Since this case concerns the discontinuance of Mr. Cutshall's disability annuity by action taken after the enactment of the 1975 Public School Employees' Retirement Code, we here reproduce the provision of that Code pertinent to the discontinuance of ...


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