Appealed From No. 23H0006-001. State Agency Department of Public Welfare.
Before: Honorable Rochelle S. Friedman, Judge, Honorable Jim Flaherty, Judge, Honorable Jess S. Jiuliante, Senior Judge. Opinion BY Judge Friedman.
The opinion of the court was delivered by: Friedman
OPINION BY JUDGE FRIEDMAN
Judith Squire petitions for review of a final order of the Secretary of the Pennsylvania Department of Public Welfare (DPW) upholding as untimely the dismissal of Squire's appeal from the termination of her disability benefits received pursuant to the Act of December 8, 1959, P.L. 1718, as amended, 61 P.S. § 951 (Act 534).
Squire was employed at Haverford State Hospital (HSH) as a medical technologist and lab supervisor when, on November 3, 1992, she was injured by a psychiatric patient. Squire was disabled as a result of the work injury and remained out of work from the date of injury until August 1995. During most of this time, Squire received benefits pursuant to Act 534. *fn1
By letter dated May 11, 1995, signed by the Director of Personnel at HSH, DPW informed Squire that it would terminate her Act 534 benefits thirty days from the date of the letter. The letter stated:
You were ordered to return to work on 5/1/95, by letter dated 4/24/95. As a result of your failure to return to work, the Department has notified PHICO Services Company to file a petition to modify/suspend/terminate your workers' compensation and the Department will terminate your Act 534 benefits 30 days from the date of this letter.
You have the right to appeal the Department's decision to terminate your Act 534 benefits as provided by the Administrative Agency Law, 2PA, CSA, [sic] Sections 103 through 508. The appeal must be sent to Bureau of Personnel, Employee Benefits Section, DPW Bertolino Building, 2nd Floor, P.O. 2675 Harrisburg, PA 17105-2675. Your appeal must be filed within thirty (30) days from the date of this notice. Please indicate a telephone number where you can be reached during the day and if represented by counsel, please provide counsel's name and telephone number. Absent the receipt of a timely written appeal, the Department's action will be final.
The Personnel Staff is prepared to counsel and assist you in understanding the work related injury program and may be reached at 610-526-2621.
Squire also received a second letter scheduling a pre-disciplinary conference (PDC) for May 15, 1995, so that Squire could respond to the charge of failure to return to work as ordered. Unable to attend the PDC on May 15, 1995, Squire rescheduled it for May 25, 1995; based on a conversation with the Director of Personnel at HSH, Squire understood that any decision regarding her Act 534 benefits would be postponed until after the scheduled PDC. *fn2 (R.R., Letter of November 29, 1995 requesting reconsideration of order dismissing Squire's appeal as untimely; Petition for Review at paras. 8-13.)
Thirty days after the May 11, 1995 letter, without holding a prior hearing, DPW terminated Squire's Act 534 benefits. Squire ultimately appealed DPW's decision to terminate her Act 534 benefits on or about June 23, 1995; this date was within 30 days of the scheduled PDC and within 30 days of the actual termination of benefits, but was more than thirty days from the date of the May 11, 1995 letter. Consequently, by letter dated August 7, 1995, sent to the Director of DPW's Office of Hearings and Appeals (OHA), DPW requested that Squire's appeal be dismissed as untimely. OHA granted DPW's request and, by order of November 15, 1995, dismissed Squire's appeal because it was filed more than 30 days from the date of the May 11, 1995 letter. Squire ...