Mihok v. Department of Public Welfare

• Decision Date: 19 January 1996
• Citation: 670 A.2d 227
• Parties: Lisbeth MIHOK, Petitioner, v. DEPARTMENT OF PUBLIC WELFARE, Respondent.
• Court: Pennsylvania Commonwealth Court

Page 227

670 A.2d 227 Lisbeth MIHOK, Petitioner,
v.
DEPARTMENT OF PUBLIC WELFARE, Respondent. Commonwealth Court of Pennsylvania. Argued Nov. 17, 1993.
Decided Jan. 19, 1996.

Page 228

Saul Davis, for petitioner.

Jason Manne, Assistant Counsel, for respondent.

Before McGINLEY and KELLEY, JJ., and NARICK, Senior Judge.

KELLEY, Judge.

Lisbeth Mihok (claimant) appeals from a final order of the Executive Deputy Secretary of the Department of Public Welfare (DPW) which upheld a decision by the Office of Hearings and Appeals (OHA) denying reinstatement of claimant's disability benefits pursuant to what is commonly referred to as Act 534, Act of December 8, 1959, P.L. 1718, as amended, 61 P.S. § 951. We affirm.

In 1972, claimant began full-time employment as a psychiatric aide at Woodville State Hospital (employer). In 1974, claimant's right foot was injured when a patient walked and rocked across it. Following this injury, claimant began receiving disability benefits pursuant to Act 534. ¹

Claimant underwent three operations on her right foot in 1979, 1981 and 1984. She was placed on either disability leave or light duty work from the date of her original injury until July 1984, when she returned to her regular position. In May 1986, claimant's right foot was reinjured when she attempted to restrain a patient. As a result, claimant went on disability leave until August 1986. Claimant returned to light duty work from August 1986 until January 1988 when she resumed her regular duties for employer. In March 1988, claimant was again placed on light duty work. In June 1988, claimant called in sick for an indefinite period of time because of her alleged disability.

Page 229

Pursuant to employer's request, claimant was examined by Dr. Bruce Tetalman on September 26 and October 7, 1988. Dr. Tetalman concluded that claimant had recovered from her work-related injury and was able to return to work as a psychiatric aide without restrictions or limitations. Dr. Tetalman submitted an Affidavit of Recovery to employer's Director of Personnel. On November 7, 1988, employer's Director of Personnel held a "return to work conference" with claimant and ordered claimant to return to her regular duties. Claimant did not return to work. Effective November 10, 1988, claimant was placed on leave without pay and her Act 534 benefits were terminated.

Claimant appealed the termination of her Act 534 benefits and a hearing was held before a hearing officer. Based largely on the testimony of Dr. Tetalman, the hearing officer recommended that claimant's appeal be denied. On November 7, 1989, OHA entered an order adopting the recommendation of the hearing officer in its entirety. The Secretary of DPW affirmed OHA's determination pursuant to claimant's request for reconsideration. Claimant then appealed to this court.

In an order dated September 25, 1990, this court affirmed in part and reversed in part the final order of the Secretary of DPW. Mihok v. Department of Public Welfare, 135 Pa.Cmwlth. 265, 580 A.2d 905 (1990) (Mihok I ). This court concluded that DPW had committed an error of law in terminating claimant's Act 534 disability benefits without a prior due process hearing. 580 A.2d at 908. At the same time, this court further concluded that DPW's finding that claimant's disability had ceased was supported by substantial evidence. Id. 580 A.2d at 908-09. Because claimant was not afforded a due process hearing until she appeared before the hearing officer following the termination of her Act 534 benefits, this court ordered her benefits restored from the date of their initial termination (November 10, 1988) to the date OHA entered its order disposing of claimant's appeal following her hearing before the hearing officer (November 7, 1989). Id. at 909.

In late November 1989, while her appeal before this court was pending, claimant returned to work for employer and was placed in an orientation class for ten days. On December 7, 1989, claimant was sent home by employer because she was physically incapable of performing her psychiatric aide duties. Employer gave claimant a choice of going on leave without pay or benefits for...