Roman v. Department of Corrections

• Decision Date: 03 October 2002
• Citation: 808 A.2d 304
• Parties: Sandra L. ROMAN, Petitioner, v. DEPARTMENT OF CORRECTIONS, Respondent.
• Court: Pennsylvania Commonwealth Court

808 A.2d 304

Sandra L. ROMAN, Petitioner, v. DEPARTMENT OF CORRECTIONS, Respondent.

Commonwealth Court of Pennsylvania.

Argued September 9, 2002.

Decided October 3, 2002.

Gregory A. Stapp, Williamsport, for petitioner.

Robin M. Lewis, Camp Hill, for respondent.

Before COLINS, President Judge, FRIEDMAN, J., and FLAHERTY, Senior Judge.

OPINION BY Senior Judge FLAHERTY.

Sandra L. Roman (Claimant) petitions for review of a determination of the Department of Corrections (DOC) denying her request for a hearing regarding her entitlement to Act 632 benefits.¹ We affirm.

While Claimant was working for DOC in 1989, she sustained a back injury during an altercation with an inmate. Claimant had spinal fusion surgery performed to treat this injury and returned to work. Thereafter, in 1995, Claimant slipped and fell while at work and began receiving benefits under either Act 632 or the Heart and Lung Act.² DOC contends that Claimant received these benefits from October 26, 1996 through January 15, 1997. Claimant then returned to work but then stopped working again on May 31, 1998 by order of her treating physician. Afterwards, Claimant asserts that she again started receiving Act 632 benefits and cites to her attendance records which show that she was off duty and contain the abbreviations "DH" and "SP", which Claimant contends indicate that she was receiving Heart and Lung Act benefits. (See DOC's Supplemental Record, which is not numbered). However, DOC contends that Claimant applied to have her Act 632 benefits reinstated but was instead placed on Work Related Disability Leave pursuant to the provisions of the Collective Bargaining Agreement (CBA) (R.R. at 8a). In support of its contention, DOC cites a July 14, 1998 letter it sent to Claimant, which states:

In compliance with ... the Collective Bargaining Agreement, you will be placed on Work Related Disability effective May 31, 1998 ... Effective June 24, 1998, Dr. Rigan returned you to work in a light duty position ... However, due to your suspension, unrelated to your work injury, we are not able to return you to work at this time ... You may appeal our decision on Work Related Disability Leave.

(R.R. at 3a) (emphasis added). The record does not indicate that Claimant ever appealed this decision.

The suspension that the July 14th letter refers to was the result of Claimant's arrest on June 26, 1998 in New York City on charges of cocaine possession. By letter dated July 2, 1998, Claimant was advised that she was being suspended for 30 days without pay or benefits pending an investigation into her arrest and informed that her actions may have violated the Governor's Code of Conduct, Section III Criminal Charges and the DOC's Code of Ethics. Claimant was also advised that a pre-disciplinary conference would be scheduled in the near future. This letter also informed Claimant of her appeal rights under the CBA and civil service law. (R.R. 1a). By letter dated August 7, 1998, Claimant was advised that, as a result of the pre-disciplinary conference, it was determined that she was in fact arrested for cocaine possession. Accordingly, DOC terminated Claimant's employment effective August 8, 1998. DOC again advised Claimant of her appeal rights. (R.R. at 4a-6a). The record does not indicate that Claimant ever appealed her dismissal. After her dismissal, Claimant began receiving workers' compensation benefits.

On April 27, 2001, nearly three years after Claimant was dismissed from her employment, Claimant's attorney sent a letter advising DOC that he was representing Claimant in her claim for Act 632 benefits. The letter states that:

At no time during her [pre-disciplinary conference] was there any mention of her Act 534/632 benefits nor was she ever notified that they would be stopped. As of August, 1998, Ms. Roman stopped receiving Act 534/632 benefits.

The purpose of this letter is to request a hearing with the Department of Corrections in order to have her Act 632 benefits reinstated from August 8, 1998 to present for failure to comply with the laws of the Commonwealth of Pennsylvania with regards to notice and hearing prior to termination of Act 632 benefits.

(R.R. at 7a). DOC responded to Claimant's request with a May 11, 2001 letter informing Claimant that a hearing would not be granted because she was receiving Work Related Disability pay rather than Act 632 benefits at the time of her dismissal and that she never appealed this decision. (R.R. at 8a). By letter dated June 4, 2001, Claimant's attorney forwarded several documents, including the above-referenced attendance sheet, to DOC in support of his contention that Claimant was in fact receiving Act 632 benefits at the time of her dismissal. (R.R. at 9a). By letter dated June 8, 2001, DOC again advised Claimant that it would not grant her a hearing. (R.R. at 10a). This appeal followed.³

On appeal, Claimant argues that the determination of DOC is erroneous because she was receiving Act 632 benefits at the time of her dismissal and that these benefits were unilaterally terminated without any notice or hearing in violation of her due process rights. Claimant also asserts that, although she did not contest her right to Act 632 benefits until almost three years after she was dismissed, she is entitled to an appeal nunc pro tunc because she has never received any notification that her Act 632 benefits were being terminated.

Act 632 provides, in relevant part, that:

Any employe of a State penal or correctional institution under the Bureau of Correction of the Department of Justice... who is injured during the course of his employment by an act of any inmate or any person confined in such institution... 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, board or institution at a salary equal to that earned by him at the time of his injury ...

61 P.S. § 951. In order to receive benefits under Act 632, the burden of proof is initially on the claimant to prove that his work-related injury was caused by the act of an inmate. Generally, after benefits have been granted to an employee under Act 632, the employer may not terminate benefits until it proves that: 1) the claimant is able to return to work because his work-related disability has ceased or 2) the claimant's disability has been determined to be permanent rather than temporary. Williams v. Department of Corrections, 164 Pa.Cmwlth. 224, 642 A.2d 608, 610 (1994). It is well-settled that an employer must conduct a full due process hearing in which it establishes one of these components before an employee's benefits can be terminated. Id.

The purpose of Act 632/534 and the Heart and Lung Act (hereinafter "Act 632") is to provide a full salary, not compensation, to employees in certain dangerous occupations who have been injured on the job and who are expected to recover and return to work in the foreseeable future. These Acts, however, are not a replacement for workers' compensation benefits. If an employee's injury is found to be "permanent" rather than temporary, that employee should not continue to receive benefits under Act 632 but should properly receive workers' compensation benefits. See Cunningham v. Pennsylvania State Police, 510 Pa. 74, 80, 507 A.2d 40, 43 (1986) and Sidlow v. Township of Nether Providence, 153 Pa.Cmwlth. 390, 621 A.2d 1105, 1110 (1993) (concurring opinion). We note that the Commonwealth has a right to subrogation for any workers' compensation benefits received by a claimant during the period when that claimant is receiving his full salary under Act 632. Hardiman, 550 A.2d at 594.

In support of its contention that Claimant is not entitled to a hearing regarding her Act 632 benefits, DOC argues that entitlement to benefits under Act 632 is contingent upon membership in the workforce of DOC. Therefore, DOC argues that once Claimant was dismissed from her job as a result of her arrest for cocaine possession, she was no longer an employee of DOC and therefore not entitled to Act 632 benefits. In support of its argument, DOC cites our Supreme Court's decision in Camaione v. Borough of Latrobe, 523 Pa. 363, 567 A.2d 638 (1989), cert. denied, 498 U.S. 921, 111 S.Ct. 298, 112 L.Ed.2d 251 (1990).

In Camaione, the appellee, a police officer, suffered a work-related injury in 1975 and began receiving Heart and Lung Act benefits. Appellee also received workers' compensation benefits which were paid to the Borough as a form of subrogation. In 1981, the Borough enacted a resolution requiring the two oldest police officers in the Borough to retire. Appellee was one of these police officers and, after the resolution was enacted, he stopped receiving his Heart and Lung Act benefits and began receiving his pension check and workers' compensation benefits. With his pension and workers' compensation benefits combined, appellee was receiving more money than he was before his Heart and Lung Act benefits were terminated. However, this situation ended when, in 1993, a workers' compensation judge determined that appellee was no longer totally disabled and adjusted his weekly benefits. Because of this adjustment, appellee received a $25,000 lump sum payment and his workers' compensation benefits ceased. At this point, appellee began receiving less money than he was prior to the time when his Heart and Lung Act benefits were terminated.

Thereafter, appellee filed an action in mandamus with the trial court arguing that he was entitled to his full salary under the Heart and Lung Act because he was never afforded a hearing to establish whether his condition had changed. The trial court denied appellee's requested relief. On appeal, we reversed the trial court and, relying on Callahan v. Pennsylvania State Police, 494 Pa. 461, 431 A.2d 946 (1981), we determined that due process required that appellee be given notice and a hearing...