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Jerry v. Department of Corrections

February 17, 2010

BERNARD JERRY, PETITIONER
v.
DEPARTMENT OF CORRECTIONS, RESPONDENT



The opinion of the court was delivered by: Judge Simpson

Submitted: September 11, 2009

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE JOSEPH F. McCLOSKEY, Senior Judge*fn1

OPINION

In this Holloway*fn2 assessment appeal, Bernard Jerry, a state prison inmate, petitions for review of an order of the Secretary of the Department of Corrections (DOC) denying Jerry's appeal of an assessment of $91.00 against his prison account for the medical treatment of a DOC employee he assaulted. Jerry, representing himself, essentially contends DOC improperly assessed his prison account because workers' compensation covered the cost of the employee's medical treatment, because DOC failed to present competent evidence to sustain the assessment, because the assessment hearing violated his due process rights, including his right to a pre-assessment hearing, and because the assessment hearing examiner was biased. We affirm.

Jerry is an inmate at SCI-Cresson. In April, 2008, Jerry assaulted Teresa Rainelli, a DOC phlebotomist (Phlebotomist). More specifically, as Phlebotomist began to draw blood from Jerry's left hand, Jerry removed the needle and stabbed Phlebotomist's right palm with it.

After a hearing on April 17, 2008, at which the Phlebotomist testified by speaker phone, Jerry was found guilty of a Class I misconduct, which includes assault and aggravated assault. DOC placed Jerry in the Restricted Housing Unit (RHU). Assessment of costs for Phlebotomist's treatment was also ordered.

Thereafter, DOC issued Jerry a notice of assessment hearing to determine the amount of an assessment, if any, against his prison account for costs stemming from the misconduct. In July, 2008, a DOC hearing examiner held a Holloway hearing to determine the amount of the assessment. Jean Sliko, DOC's business manager at SCI-Cresson (Manager), identified an invoice she received from the Altoona Regional Health System (Provider) for Phlebotomist's medical care on the date of the assault. Provider's bill reflected a $91.00 charge for a clinic visit and named Phlebotomist as the patient. Jerry objected on the ground Manager's testimony constituted hearsay because she did not know for a fact that Phlebotomist went to Provider and received the treatment at issue. Jerry also asserted workers' compensation covered Phlebotomist's injury and therefore he cannot be assessed any costs for it. The hearing examiner upheld the assessment.

Jerry filed exceptions to the hearing examiner's report, which the Secretary denied. Jerry petitions for review.*fn3

Issues

Jerry presents three chief issues. First, Jerry asserts the workers' compensation system precludes DOC's assessment against his prison account for Phlebotomist's medical expenses stemming from the incident. Second, Jerry asserts the assessment hearing violated his due process rights, including the right to a pre-assessment hearing. Third, Jerry alleges bias on the part of the hearing examiner because the misconduct and assessment hearing officers, as well as Phlebotomist, are DOC employees who share DOC's interests.

A. Workers' Compensation

Jerry first contends DOC cannot recover the costs of Phlebotomist's medical treatment related to the assault because workers' compensation covers these costs. He maintains DOC has no authority to act as a collection agency for a workers' compensation insurer.

We disagree. DOC is entitled to assess inmates found guilty of either a Class I or Class II misconduct for reimbursement of expenses incurred as a result of the inmate's misconduct. 37 Pa. Code §93.10(a) (inmate discipline); Brome v. Dep't of Corrs., 756 A.2d 87 (Pa. Cmwlth. 2000). In Brome, we recognized DOC is a self-insured agency that is not precluded from seeking reimbursement from an inmate for medical expenses for a DOC employee injured in an inmate assault.

Therefore, we reject Jerry's contention that DOC cannot assess his prison account for Phlebotomist's medical ...


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