Commonwealth v. Miller

*236Dissenting Opinion by

Judge Barry:

I dissent. I believe .that, .although Johnson is and should be the law, it is distinguishable from the present case. In Johnson, the petitioner’s school bus operator’s license was properly recalled because he had a history of a myocardial infarction. In this case, Mr. Miller has no history of and has not suffered a myocardial infarction. He underwent successful corrective surgery for a coronary arterial obstruction. The artery obstruction from which Mr. Miller suffered was not necessarily a coronary insufficiency within the meaning of 67 Pa. Code 71.3(b) (ii). Therefore, I would remand for a finding on this question. The miracles of heart by-pass surgery are known to all of us and, seemingly, Mr. Miller’s operation prevented .the coronary insufficiency which the Code could reasonably be construed to contemplate.

When Mr. Miller applied for certification, he already had undergone the corrective surgery which, according to the medical evidence, renders him physically capable of performing his .school bus driver’s duties. In fact, Dr. Rodney C. Lipman, a cardiologist, .stated:

I believe at this time, that Mr. Miller’s condition is quite stable and that he is at little risk for the development of heart attack or sudden death. I feel that in all likelihood, Mr. Miller could return to part-time driving of a .school bus without significant risk.

(Letter of Rodney C. Lipman, M.D., October 20, 1982, R. 7a.) Claimant’s physician, Dr. Michael Gerber, stated .that “Mr. Miller could safely drive a school bus, .since at least as much is known about him as someone who has no history of cardiac disease, and we of course know that Mr. Miller presently has normal coronary blood flow.” (Letter of Dr. Michael Gerber to Attorney John DeAngelis, October 28, 1982, R. 8a.)

*237An analogous yet not exact but illustrative situation occurs where, for instance, a certification applicant has incurred an eye injury or has developed cataracts requiring corrective surgery. Following surgery, the applicant no longer suffers visual impairment and, in fact, complies with the specified visual .standards under the Pa. Code. I am sure that this hypothetical applicant would be declared capable of operating a .school bus safely. I also believe Mr. Miller .should not have been denied school bus operator’s privileges unless his physical condition is such that he cannot be considered a safe risk to transport school children. I do not .think the present record .supports a conclusion that he cannot. I would, therefore, remand for DOT’s answer to this question.