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CLAIM JOHN J. KOHN (05/07/84)

decided: May 7, 1984.

IN RE: CLAIM OF JOHN J. KOHN


Appeal from the Order of the State Employees' Retirement Board in the case of In Re: Claim of John J. Kohn, SS No. 179-22-5649.

COUNSEL

Victor Dell'Alba, Dell'Alba, Heim and LeCates, for petitioner.

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

Judges Rogers, Palladino and Barbieri, sitting as a panel of three. Opinion by Judge Palladino.

Author: Palladino

[ 82 Pa. Commw. Page 252]

This is an appeal by John J. Kohn (Petitioner) from a decision and order of the State Employes' Retirement Board (Board) denying Petitioner's application for a disability annuity.

The Petitioner was employed by the Commonwealth of Pennsylvania Liquor Control Board as an Enforcement Officer II, from February 8, 1965 through October 19, 1973. On September 23, 1973, the Petitioner felt chest pains after moving a carton of beer or liquor during a raid. Thereafter, the Petitioner was assigned light duties which did not involve raids or investigations. The Petitioner applied for a disability annuity under Sections 5704 and 5905(c) of the State Employees' Retirement Code*fn1 (Code) claiming

[ 82 Pa. Commw. Page 253]

    that he was physically incapable of performing the job for which he was employed because of coronary artery disease.

A hearing was held on Petitioner's claim on December 28, 1979. The Petitioner produced the deposition testimony and reports of a heart specialist who diagnosed the Petitioner as suffering from angina pectoris caused by coronary artery disease. The specialist based his diagnosis on an electrocardiogram given by another physician soon after the Petitioner first suffered chest pains. The electrocardiogram later performed by the specialist showed no evidence of coronary artery disease.

Also introduced into the record was a report by the physician who gave the first electrocardiogram. This physician stated that while the Petitioner suffered from angina pectoris, the extent of his disability is open to question. Moreover, this physician stated that he could not exclude the possibility that the Petitioner's symptoms were due to his hiatus hernia. Finally, a physician employed by the Board for the purpose of reviewing claims for disability benefits testified that there was no objective evidence that the Petitioner suffered from coronary artery disease and that further testing would be necessary. The Board-appointed physician's conclusion was based on his review of the medical evidence of record.

Based on this evidence, the hearing examiner found that the Petitioner had failed to produce sufficient medical evidence to show that he was suffering from coronary artery disease. Thus, the referee concluded that the Petitioner did not carry his burden of proving that he was suffering from a disability which rendered him unable to perform ...


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