No. 72 M.D. Appeal Docket 1984, Appeal from the Order of the Commonwealth Court of Pennsylvania, No. 1913 C.D. 1982, dated May 9, 1984 Pa. Commw. ,
Larsen, Justice. Nix, C.j., and Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Hutchinson, J., filed a dissenting opinion in which McDermott and Papadakos, JJ., joined.
In this appeal we are called upon to decide the question of: where an employee is receiving Heart and Lung Act*fn1 benefits because of a disabling injury, what proof is required of an employer to establish that the incapacity is permanent rather than temporary*fn2 and thus, allow the employer to discontinue such benefits.
On February 24, 1978, the appellee, Fiore R. Palmeri, while on duty as a Pennsylvania State Trooper,*fn3 injured his back, right hip and right knee. Because of these injuries, Palmeri began a work-related disability leave on March 7, 1978. He started receiving all benefits provided for by the Heart and Lung Act, including his full salary. The relevant provisions of the Heart and Lung Act provide:
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 by the Commonwealth of Pennsylvania if a member of the State Police Force . . ., his full rate of salary, as fixed by ordinance or resolution, until the disability arising therefrom has ceased. All medical and hospital bills incurred in connection with any such injury shall be paid by the Commonwealth of Pennsylvania . . . . During the time salary for temporary incapacity shall be paid by the Commonwealth of Pennsylvania . . ., any Workmen's Compensation, received or collected by any such employe for such period shall be turned over to the Commonwealth of Pennsylvania . . . and paid into the treasury thereof, and if such payment shall not be so made by the employe the amount so due the Commonwealth of Pennsylvania, . . . shall be deducted from any salary then or thereafter becoming due and owing.
As amended 1974, May 31, P.L. 309, No. 99 S 1(a), 53 P.S. § 637(a).
The injury to the right knee proved to be the most troublesome to Palmeri. At the outset, his knee injury was treated by whirlpool baths and physical therapy to no avail. In April, 1978, the appellee had corrective surgery performed on his right knee. This was the first of four such operations he underwent between 1978 and 1982. In addition, he received physical therapy treatments on a regular basis.
In March, 1982, Palmeri received notice from his employer, the Pennsylvania State Police, notifying him, inter alia, that:
The period of time during which compensation has been paid to you for your work-related injury has exceeded that which is ordinarily indicative of a temporary disability. Therefore, it must be determined whether or not your disability is permanent.
You may wish to appear to present testimony or medical records concerning your condition. If so you must contact this Bureau within ten (10) days of receipt of this letter. The time ...