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JOHN E. ALBRIGHT v. COMMONWEALTH PENNSYLVANIA (11/22/85)

decided: November 22, 1985.

JOHN E. ALBRIGHT, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, STATE EMPLOYES' RETIREMENT SYSTEM, RESPONDENT



Appeal from the Order of the State Employes' Retirement Board in case of In the Matter of: John E. Albright, S.S. No. 190-30-6732, dated June 27, 1984.

COUNSEL

Patricia A. Carey, for petitioner.

Nicholas Joseph Marcucci, Assistant Counsel, for respondent.

Judges Craig and Doyle, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Doyle. Senior Judge Kalish concurs in the result only.

Author: Doyle

[ 93 Pa. Commw. Page 135]

John E. Albright (Petitioner) appeals from a decision of the State Employes' Retirement Board (Board) which denied Petitioner's application for a disability annuity pursuant to Section 5308(c) of the

[ 93 Pa. Commw. Page 136]

State Employes' Retirement Code (Code), 71 Pa. C.S. § 5308(c).

Petitioner was employed by the Department of Public Welfare from July 18, 1966 to August 12, 1976, and during that time worked as a nursing assistant at the Philipsburg State General Hospital. Petitioner retired from his position in 1976, and has since been unemployed. Petitioner did not apply for a disability annuity until January 19, 1983, when the Board allowed a belated application due to the possibility that Petitioner had been misinformed about his right to apply for such annuity at the time of his retirement.

At the hearing on the application for disability in 1983, Petitioner sought to establish that he was physically disabled at the time of his retirement in 1976, because of emphysema. After considering the evidence, the hearing examiner determined that Petitioner had not produced sufficient evidence to indicate that, as of August, 1976, he could no longer perform the job in which he was employed. The hearing examiner found that Petitioner was not disabled in 1976, and thus recommended that his application be denied. On June 22, 1984, the Board adopted the hearing examiner's findings of facts and recommendations, and denied Petitioner's application for disability annuity.

On appeal to this Court,*fn1 Petitioner initially argues that the Board capriciously disregarded evidence in reaching its decision. Section 5308(c) of the Code provides that, if an employee "prior to attainment of superannuation age . . . becomes mentally or physically incapable of continuing to perform the duties

[ 93 Pa. Commw. Page 137]

    for which he is employed" he shall receive a ...


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