The opinion of the court was delivered by: Bonnie Brigance Leadbetter, President Judge
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE DAN PELLEGRINI, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE JOHNNY J. BUTLER, Judge
OPINION BY PRESIDENT JUDGE LEADBETTER
Joan McWreath petitions for review of the final order of the Secretary of the Department of Public Welfare (Department) upholding the decision of the Bureau of Hearings and Appeals (Bureau) to terminate McWreath's benefits under Section 1 of the Act of December 8, 1959, P.L. 1718, commonly known as Act 534, as amended, 61 P.S. § 951, for injuries sustained in the course of her employment with Mayview State Hospital, a state mental hospital. In her adjudication, adopted by the Bureau, the Administrative Law Judge (ALJ) determined that McWreath was still an employee for the purpose of her eligibility for Act 534 benefits although she was furloughed due to the closing of the hospital. The ALJ further determined that she was, however, ineligible for Act 534 benefits because her disability was permanent, rather than temporary. Because the ALJ and the Bureau misconstrued Act 534 in terminating McWreath's benefits, we reverse the Secretary's order.
The relevant facts are undisputed. McWreath began her employment with the Department in 1986 as a registered nurse, a "regular" civil service position,*fn1 at Mayview State Hospital and was a member of the Service Employees International Union, District 1199P. In April 1992, she sustained injuries when she was assaulted by a patient at the hospital. She thereafter received benefits under Section 1 of Act 534, which provides in relevant part:
[A]ny employe of a State mental hospital or Youth Development Center under the Department of Public Welfare, who is injured during the course of his employment by an act of . any person confined in such institution or by any person who has been committed to such institution by any court of the Commonwealth of Pennsylvania or by any provision of the "Mental Health Act" . shall be paid, by the Commonwealth of Pennsylvania, his full salary, until the disability arising therefrom no longer prevents his return as an employe of such department . or institution at a salary equal to that earned by him at the time of his injury.
All medical and hospital expenses incurred in connection with any such injury shall be paid by the Commonwealth of Pennsylvania until the disability arising from such injury no longer prevents his return as an employe of such department . or institution at a salary equal to that earned by him at the time of his injury.
During the time salary for such disability shall be paid by the Commonwealth of Pennsylvania any workmen's compensation received or collected for such period shall be turned over to the Commonwealth and paid into the General Fund, and if such payment shall not be so made, the amount so due the Commonwealth shall be deducted from any salary then or thereafter becoming due and owing. [Emphasis added.][*fn2]
On January 5, 2009, the Department notified McWreath that she would be furloughed from her current position as of January 20, 2009 due to the closing of Mayview State Hospital. The Department informed her that it would request an administrative hearing to determine whether she was entitled to continue to receive Act 534 benefits after the furlough. See Squire v. Pa. Dep't of Pub. Welfare, 696 A.2d 255 (Pa. Cmwlth. 1997) (holding that Act 534 benefits cannot be terminated without a due process hearing). The Department furloughed her on January 20, 2009 and placed her on a three-year recall list pursuant to the collective bargaining agreement (CBA).*fn3
At a hearing held before the ALJ on July 15, 2009, the Department sought to terminate Act 534 benefits of McWreath and three other furloughed employees. In the Stipulation of Facts submitted to the ALJ, the parties agreed that all of the four employees "continued to be medically disabled from returning to their regular, full-duty Mayview positions" and met "the 'disability' criteria for Act 534 eligibility - i.e., they all have disabling injuries caused by acts of patients that medically prevent[ed] them from performing the duties of their time-of-injury Mayview positions." Stipulation of Facts, ¶¶ 3 and 5; Reproduced Record (R.R.) at 8a (emphasis added). The Department argued that McWreath was no longer eligible for Act 534 benefits because the furlough ended her employment relationship with the Department and that her benefits could resume upon a recall to a position with the Department. McWreath disputed the Department's position, arguing that the furlough only temporarily separated her from employment and that she should continue to receive benefits during the recall period.
The ALJ concluded that despite the furlough, McWreath was an employee for the purpose of her eligibility for Act 534 benefits. The ALJ cited Section 801 of the Civil Service Act, Act of August 5, 1941, P.L. 752, as amended, 71 P.S. § 741.801, providing that "[a]n employe may be temporarily separated from the classified service through furlough, leave of absence or suspension and may be permanently separated through rejection on probation, retirement, resignation or removal." The ALJ distinguished furloughed employees with a recall right from employees permanently separated from employment by resignation, retirement or removal. The ALJ also noted that a furlough was not a break in service under the CBA. The ALJ concluded that "[t]he furloughed employee's employment relationship is maintained, but held in abeyance due to an employer's lack of work or financial resources" and that providing Act 534 benefits to McWreath during the recall period was consistent with the purpose of Act 534. ALJ's Adjudication at 9.
The ALJ further concluded that McWreath, however, was ineligible for Act 534 benefits because her disability was permanent, relying on McWreath's testimony that "[i]t's been 17 years that I've been deemed permanently disabled." Notes of Testimony at 82; R.R. at 205a. In support, the ALJ cited Cunningham v. Pennsylvania State Police, 510 Pa. 74, 507 A.2d 40 (1986), in which the Supreme Court held that the state police officer who was deemed permanently disabled due to a work injury was not entitled to benefits under Section 1(a) of the Act of June 28, 1935, P.L. 477, commonly known as the Heart and Lung Act, as amended, 53 P.S. § 637(a). Section 1(a) of the Heart and Lung Act provides in relevant part:
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 ...