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ISABEL M. DUNN v. DEPARTMENT GENERAL SERVICES (06/03/88)

decided: June 3, 1988.

ISABEL M. DUNN, PETITIONER
v.
DEPARTMENT OF GENERAL SERVICES, RESPONDENT



Appeal from the Order of the Department of General Services, in the case of Isabel M. Dunn v. Commonwealth of Pennsylvania, Department of General Services, Administrative Proceeding Act 101-1976, As Amended.

COUNSEL

Henry H. Wallace, with him, Maureen Dunn Harvey, Wallace, Chapas & Associates, for petitioner.

David A. Fitzsimons, Assistant Counsel, with him, Michael D. Reed, Chief of Litigation, William W. Warren, Jr., Chief Counsel, for respondent.

Judges Craig, Doyle and Palladino, sitting as a panel of three. Opinion by Judge Palladino.

Author: Palladino

[ 116 Pa. Commw. Page 519]

Isabel M. Dunn (Petitioner) has petitioned for review of an order of the Department of General Services

[ 116 Pa. Commw. Page 520]

(Department) affirming the decision of the Bureau of Risk and Insurance Management (Bureau) denying Petitioner's claim for a $25,000 death benefit. The benefit is payable to the surviving spouse of a law enforcement officer, ambulance service or rescue squad member or fire fighter killed in the performance of his duties. Section 1 of the Act of June 26, 1976 (Act 101), P.L. 424, as amended, 53 P.S. ยง 891. The benefit was sought following the death of Petitioner's husband, State Police Commissioner Daniel F. Dunn.

Commissioner Dunn suffered a fatal heart attack on May 16, 1985, shortly after conducting a tour of the Pennsylvania State Police Academy in Hershey, Pennsylvania. The State Police filed a claim, on behalf of Petitioner, for the death benefit provided for in Act 101. The Bureau denied the claim, concluding that Commissioner Dunn's "death did not occur in the performance of duty." Upon Petitioner's appeal to the Department, a hearing examiner was appointed, and the case was presented with a stipulation of facts, depositions of physicians and affidavits. The Department hearing examiner concluded that "Commissioner Dunn was not killed in the performance of his duties as State Police Commissioner, since the cause of death did not arise from the performance of those duties." Conclusion of law No. 2. Petitioner has petitioned for review.*fn1 Petitioner's arguments on appeal are as follows: 1) the hearing examiner erroneously applied the "unusual strain doctrine" in determining eligibility under Act 101; 2) the hearing examiner's decision is not supported by substantial evidence; 3) the Department is bound by the finding of the

[ 116 Pa. Commw. Page 521]

Workmen's Compensation Bureau that Commissioner Dunn's death was work related; and 4) the Department and Bureau were required to award the benefit because the Pennsylvania State Police had certified that Commissioner Dunn's death occurred as a result of injuries sustained in the performance of duty. We shall address these issues in the order stated.

Petitioner first asserts the hearing examiner erroneously applied the "unusual strain doctrine" in determining eligibility under Act 101. Petitioner argues that the unusual strain doctrine developed in heart attack cases under the Workmen's Compensation Law*fn2 (Law), and that the doctrine was eliminated by the legislature when it amended the Law. Assuming, arguendo, that Petitioner's statement of the Law is correct, we fail to see the relevance of this argument. Whatever the requirements of the Law, Act 101 clearly provides that there must be a causal connection between the death and the duty. Section 3 of the Act of October 16, 1981, P.L. 295 (Amending Act) states, in part: "This act . . . shall be applicable to the deaths of all firefighters, ambulance service or rescue squad members and law enforcement personnel dying as the direct result of injuries sustained in the performance of their duties. . . ."

A heart attack can be an "injury" under Act 101. Crouse v. Department of General Services, 116 Pa. Commonwealth Ct. 43, 540 A.2d 1015 (1988). However, an injury under Act 101 is not compensable where a causal connection has not been established. Township of Ross v. Department of General Services, 116 Pa. Commonwealth Ct. 532, 542 A.2d 613 (1988); Crouse ; Section 3 of Act 101. The issue, then, is whether the hearing examiner's finding that a ...


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