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ROBERT ROYER v. COMMONWEALTH PENNSYLVANIA (04/27/79)

decided: April 27, 1979.

ROBERT ROYER, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF PUBLIC WELFARE, RESPONDENT



Appeal from the Order of the Department of Public Welfare in case of Appeal of Robert Royer, dated September 23, 1977.

COUNSEL

Niles Schore, for appellant.

Edward P. Carey, Assistant Attorney General, for appellee.

Judges Crumlish, Jr., Wilkinson, Jr. and Mencer, sitting as a panel of three. Opinion by Judge Mencer.

Author: Mencer

[ 42 Pa. Commw. Page 305]

Robert Royer (claimant) has appealed an order of the Department of Public Welfare (Department) transferring claimant's family from Aid to Families with Dependent Children (AFDC) to General Assistance (GA). We affirm.

Claimant had been receiving benefits under AFDC from the Columbia County Board of Assistance (Board) since January 11, 1974 based on his inability to provide for his family because of a shotgun injury to his right shoulder and psychological problems. In April of 1977, after approximately one year of unemployment, claimant obtained a full-time position with the Bloomsburg Sewage Plant. Claimant notified the Board of his change in circumstances, and the Board arranged for a medical examination to determine claimant's continuing eligibility for AFDC. The medical report indicated that, outside of limited

[ 42 Pa. Commw. Page 306]

    motion in claimant's right shoulder, claimant suffered from no significant physical or mental impairments. On the basis of this report, the Board determined that claimant was no longer mentally or physically incapacitated and was therefore ineligible for AFDC. Because of his continuing financial needs, however, the Board transferred claimant from AFDC to GA. Claimant appealed the Board's action and was accorded a fair hearing by the Department. The hearing examiner affirmed the Board and this appeal followed.

To be eligible for AFDC, it is not enough to simply show a need for assistance; one must also show the dependency of a child. Henry v. Betit, 323 F. Supp. 418 (D. Alaska 1971); Macias v. Finch, 324 F. Supp. 1252 (N.D. Cal.), aff'd mem. sub nom., Macias v. Richardson, 400 U.S. 913 (1970); Sweet v. Department of Public Aid, 66 Ill. 2d 195, 361 N.E. 2d 1118 (1977). A child is considered dependent for AFDC purposes when he "has been deprived of parental support or care by reason of the death, continued absence from the home, or physical or mental incapacity of a parent. . . ." 42 U.S.C. § 606(a)(1) (emphasis added). "Physical or mental incapacity" has been defined, in 45 C.F.R. § 233.90(c)(1)(iv),

     to exist when one parent has a physical or mental defect, illness, or impairment. The incapacity shall be supported by competent medical testimony and must be of such a debilitating nature as to reduce substantially or eliminate the parent's ability to support or care for the otherwise eligible child and be expected to last for a period of at least 30 days.

See also 55 Pa. Code § 153.44(c)(2)(i).

Claimant contends that the hearing examiner erred in finding that claimant was no longer substantially incapacitated to support his children. He argues that the fact ...


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