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FIORE R. PALMERI v. COMMONWEALTH PENNSYLVANIA (05/09/84)

decided: May 9, 1984.

FIORE R. PALMERI, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA STATE POLICE, RESPONDENT



Appeal from the Order of the Pennsylvania State Police in the case of Corporal Fiore R. Palmeri, dated July 16, 1982.

COUNSEL

Anthony C. Busillo, II, with him, Gary M. Lightman, Mancke, Lightman & Wagner, for petitioner.

Joseph S. Rengert, Assistant Counsel, for respondent.

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

Author: Williams

[ 82 Pa. Commw. Page 349]

Fiore R. Palmeri was injured while performing his duties as a Pennsylvania State Police officer on February 24, 1978. As a result of this injury, which affected his back and right knee, Palmeri was incapacitated to continue his regular duties on the force. The disability was deemed "temporary", and accordingly, he was determined eligible under the "Heart and Lung Act" (Act)*fn1 to continue to receive his full salary and benefits until his temporary disability ceased. Palmeri remained out of work due to the injury and continued to receive his full salary until July 16, 1982, when the State Police determined that his disability could no longer be considered "temporary."*fn2 The State Police predicated its determination on the length of time that Palmeri had been disabled -- a period in excess of 1500 days -- and the absence of a favorable prognosis in the medical records relative to the condition caused by the injury. Palmeri has appealed from this determination.

Palmeri has raised a number of procedural challenges to the determination, most of which seem to bear on the informality of the hearing provided by the

[ 82 Pa. Commw. Page 350]

State Police.*fn3 We decline to specifically address these procedural questions because, having reviewed the record as a whole, we do not believe that the hearing process was either inadequate under the Administrative Agency Law,*fn4 or fundamentally unfair; and because we believe that important substantive reasons require our reversal of the adjudication.

The principal difficulty of this case is the absence of articulated standards for determining when a disability, once having been classified as temporary under the Act, may be deemed permanent. No standard is suggested by the statute itself, which states merely that "any member of the State Police Force . . . who is injured in the performance of his duties . . . , and by reason thereof is temporarily incapacitated from performing his duties, shall be paid . . . his full rate

[ 82 Pa. Commw. Page 351]

    of salary . . . until the disability arising therefrom has ceased. 53 P.S. ยง 637 (emphasis added).*fn5 Nor is the legislative history helpful in suggesting the line of demarkation between temporary and permanent disabilities.*fn6 The few court decisions which deal with the Act offer no standards, and those which deal with related disability statutes are only marginally helpful in delimiting the concept of "temporary." See e.g. Woodward v. Pittsburgh Engineering & Construction Co., 293 Pa. 338, 143 A. 21 (1928); c.f. Duthie v. Workers' Compensation Appeals Board, 86 Cal. App. 3d 721, 150 Cal. Rptr. 530 (1978) ("A disability is considered permanent after the employee has reached maximum improvement or his condition has been stationary for a reasonable period of time. . . ."). Surely, any definition which might be devised would have to confront the practical reality that the duration of a "temporary" disability might vary widely depending on the nature of the ailment.

Because there are no statutory standards or guidelines for distinguishing permanent from temporary disabilities under the Act, it was critical for the State Police to establish on the record a factual basis for concluding that the duration of Palmeri's incapacitation raised a reasonable inference of permanence. In order to conclude that his condition was permanent there needed ...


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