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JUDITH WESS v. COMMONWEALTH PENNSYLVANIA (07/25/83)

decided: July 25, 1983.

JUDITH WESS, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF PUBLIC WELFARE, RESPONDENT



Appeal from the Order of the Department of Public Welfare in case of Judith Wess v. Ebensburg Center, dated January 25, 1982.

COUNSEL

Gary L. Costlow, for petitioner.

James S. Marshall, Assistant Counsel, for respondent.

Judges Rogers, Blatt and Craig, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 75 Pa. Commw. Page 629]

Judith Wess has filed a petition for review of a final order of the Secretary of the Department of Public Welfare denying her request for reconsideration of an order of the Department's Office of Hearings and Appeals rejecting her appeal nunc pro tunc from the termination of the benefits provided by the Act of December 8, 1959, P.L. 1718, as amended, 61 P.S. ยง 951 (Act 534). We vacate the order and remand the record to the Department for a hearing and a determination of whether, as she contends, her appeal was late because she was given misleading information by Department employees and should be allowed nunc pro tunc.

The facts, as alleged by the petitioner, are that the petitioner was employed at the Ebensburg Center, a Sate mental hospital operated by the Department of Public Welfare. She suffered a work-related injury on August 11, 1980, and thereafter was paid both workmen's compensation and Act 534 benefits. This case concerns her Act 534 benefits and Act 534 provides as follows:

Any employee of a state mental hospital . . . under the Department of Public Welfare, who is injured during the course of his employment by an act of . . . any person confined in such institution . . . shall be paid by the Commonwealth of Pennsylvania, his full salary, until

[ 75 Pa. Commw. Page 630]

    the disability arising therefrom no longer prevents his return as an employe of such department, board or institution at a salary equal to that earned by him at the time of his injury.

All medical and hospital expenses incurred in connection with any such injury shall be paid by the Commonwealth of Pennsylvania until the disability arising from such injury no longer prevents his return as an employe of such department, board or institution at a salary equal to that earned by him at the time of injury.

During the time salary for such disability shall be paid by the Commonwealth of Pennsylvania any workmen's compensation received or collected for such period shall be turned over to the Commonwealth and paid into the General Fund, and if such payment shall not be made, the amount so due the Commonwealth shall be deducted from any salary then or thereafter becoming due and owing.

The superintendent of the Ebensburg Center, by letter dated November 6, 1981, notified the petitioner that her Act 534 benefits had been terminated effective October 29, 1981 because a medical expert described her as able to return to full duty. Her workmen's compensation benefits seem to have been terminated at the same time and for the same reason. The superintendent's letter terminating the petitioner's Act 534 benefits also informed her of her right ...


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