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FLORENCE MOSER v. COMMONWEALTH PENNSYLVANIA (05/23/85)

decided: May 23, 1985.

FLORENCE MOSER, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, STATE EMPLOYEES' RETIREMENT BOARD, RESPONDENT



Appeal from the Order of the State Employees' Retirement Board in case of In the Matter of: Florence E. Moser, S.S. No. 204-18-3268, Disability Claimant.

COUNSEL

James McGarrity, for petitioner.

Nicholas Joseph Marcucci, Assistant Counsel, for respondent.

Judges Williams, Jr. and MacPhail and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Barbieri. Judge Williams, Jr. did not participate in the decision in this case.

Author: Barbieri

[ 89 Pa. Commw. Page 457]

Florence Moser, Claimant, appeals here an order of the State Employees' Retirement Board (Board) denying her request for a long-term disability annuity.

Claimant was employed by the Commonwealth at the Norristown State Hospital as a Food Service Worker I from December, 1967 until January, 1976. Her position involved heavy and strenuous work. On September 16, 1970, while lifting a screen at work, Claimant experienced chest pains and was hospitalized. It was then diagnosed that she suffered from coronary artery disease with a "suspect" infarction. She was in intensive care for two days with hospitalization continuing for approximately one month, spending an additional month at home, after which she returned to work. She continued to work until January 18, 1976, when she retired because of her disability.

[ 89 Pa. Commw. Page 458]

It is undisputed that Claimant's position involved heavy work, lifting, bending, cleaning and other duties of a strenuous nature.

Hearings were held before a Board hearing examiner on July 25, 1980 and January 24, 1983. At the hearing of July 25, 1980, Claimant presented several medical records showing evidence of coronary artery disease. Among these, Dr. Frederick Lytel, Claimant's attending physician, in a report submitted to the Board on February 2, 1976, diagnosed Claimant's ailments as coronary artery disease, hyperlipidemia, and degenerative joint disease. On December 5, 1977, following a treadmill test which Claimant could not complete as a result of fatigue, Dr. Leo Konecke, a cardiologist, found a 45% functional aerobic impairment. Dr. Konecke also supported Dr. Lytel's diagnosis of a suspected subendocardial infarction. Dr. Sandra Harmon, Dr. Lytel's successor on his retirement from practice, in her report to the Board dated January 12, 1978, diagnosed coronary artery disease, hyperlipedemia, degenerative joint disease, and chronic obstructive pulmonary disease. Dr. Harmon also stated that the symptoms were relieved with vasodilators and that, based upon repeated discussions with and examinations of Claimant, she firmly believed that "coronary artery disease [was present] whether it be on the basis of arterial spasm or atherosclerosis." Dr. Harmon's evaluation of Claimant in a formal report to the Board on January 12, 1978, is stated as follows:

This patient is unable to perform the duties required by her Commonwealth employment because of the problems as outlined above. I believe that this patient, Mrs. Moser, is permanently disabled.

At the hearing of July 25, 1980, it was established that the United States Social Security Administration had found Claimant to be totally disabled and had

[ 89 Pa. Commw. Page 459]

    awarded disability payments to her. The record also establishes that on the "SUMMARY EVALUATION" prepared by Claimant's employer, Norristown State Hospital, in its "SEPARATION EVALUATION" Report, the following appears:

Although this employee is a very good worker, because of her heart condition and other physical problems we would not consider re-hiring.

The Board adduced the testimony of two medical witnesses, both specialists in internal medicine, Mark Berger, M.D. and Stanley R. Goldman, M.D., both regularly employed by the Board and neither of them having examined the Claimant. Dr. Berger's role is to advise the Board of the medical aspects of disability applications and "make recommendations as to the medical merits," an employment which he had had for approximately six years as of the date when his testimony was taken on July 25, 1980. His testimony, entirely based upon records that were presented to him, was directed solely to the Claimant's heart complaints. His opinion advising against the granting of benefits, was that the "cardiograms failed to objectively substantiate any evidence of coronary disease,"*fn1 a lack of " objective documentation of coronary disease."*fn2 Specifically, he stated further that "[o]ur opinion is that there is no objective evidence of coronary artery disease; and, therefore, with the proper motivation, she could continue to carry out her job as described in her job description."*fn3

Dr. Berger testified further, as follows:

Now, so that I can make the point I'm trying to very clearly, I cannot say categorically that this woman does not have coronary artery

[ 89 Pa. Commw. Page 460]

    disease. I'm not implying that at all. I'm saying that the approach that we take is the burden of proof is on the claimant, and we do not see proof here, over a ten-year period of time, by any objective documentation, that this woman has coronary artery disease. Pain itself is not objective proof.

She may have coronary artery disease. If she has objectively proven coronary artery disease, it would be detrimental to her ...


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