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ROBERT L. UNDERKOFFLER v. COMMONWEALTH PENNSYLVANIA (07/20/81)

decided: July 20, 1981.

ROBERT L. UNDERKOFFLER, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, STATE EMPLOYES' RETIREMENT BOARD, RESPONDENT



Appeal from the Order of the State Employes' Retirement Board in the case of In Re: Claim of Robert Underkoffler, No. 194-28-8937.

COUNSEL

Kenneth A. Wise, with him James E. Tarman and Marian E. Frankston, for petitioner.

Thomas J. Mangan, Jr., Chief Counsel, for respondent.

Judges Mencer, Craig and Palladino, sitting as a panel of three. Opinion by Judge Mencer.

Author: Mencer

[ 61 Pa. Commw. Page 2]

Robert L. Underkoffler (petitioner) has appealed from a determination of the State Employes' Retirement Board (Board) which denied his claim for disability benefits. We vacate and remand.

The petitioner injured his right knee while working as a heavy equipment operator for the Department of Transportation (Department). This injury prevented him from continuing that employment, so he voluntarily transferred to other positions in the Department as a flagman, a computer operator, a messenger, and finally as a stamper.*fn1 In this last position, he was required to remove staples from driving permit applications and stamp numbers on them. He handled several thousand applications each day.

On July 20, 1978, the petitioner's employment with the Department came to an end. He asserted before

[ 61 Pa. Commw. Page 3]

    the hearing examiner that the pain from his knee and the side effects of medication prescribed by his doctor made it impossible for him to concentrate on the job. The petitioner's work record shows that he was frequently absent.

Section 5308(c) of the State Employees' Retirement Code (Code), as amended, 71 Pa. C.S. ยง 5308(c), provides as follows:

(c) An active member . . . shall, upon compliance with section 5907(k),*fn2 be entitled to a disability annuity if prior to attainment of superannuation age he becomes mentally or physically incapable of continuing to perform the duties for which he is employed and qualifies in accordance with the provisions of section 5905(c)(1) (relating to duties of the board regarding applications and elections of members).

(Footnote added.) In light of this statutory language, the Board must make an initial determination of whether an applicant for benefits is mentally or physically incapable of continuing to perform the duties for which he is employed. If the applicant is mentally or physically incapacitated, then the Board must also determine whether the ...


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