Department of Administration, Division of Retirement v. McInerney , 597 So. 2d 358 ( 1992 )

BOOTH, Judge.

This cause is before us on appeal from an order of the State Retirement Commission (SRC) awarding in-line-of-duty disability retirement benefits.

On February 9, 1988, appellee was subpoenaed to appear in court pursuant to a matter that arose out of the performance of his duties as a police officer with the Metro Dade Police Department. As appel-lee was proceeding to the courthouse, he was involved in an accident that left him permanently disabled. At the time of the accident, appellee was not working regularly-scheduled hours.

The administrator¹ denied appellee long-term disability retirement benefits because appellee was not in the performance of his duties when injured. Appellee appealed the denial to the SRC pursuant to Section 121.23, Florida Statutes. The SRC reversed the decision of the administrator and awarded appellee in-line-of-duty disability benefits.

On appeal, the issue is the application to the facts here of Section 121.021(13), Florida Statutes, which provides in pertinent part as follows:

“Disability in line of duty” means an injury or illness arising out of and in the actual performance of duty required by a member’s employment during his regularly scheduled working hours or irregular working hours as required by the employer.

In the instant case, the unrefuted evidence was that appellee suffered a permanent, as well as a total, disability as a result of the accident. The accident occurred while appellee was en route to the courthouse to testify about an incident that arose out of the performance of his duties as a police officer. The evidence is that appellee was required to appear in court pursuant to subpoena and would have been disciplined had he failed to appear. We hold that on these facts, appellee’s appearance and travel to the courthouse were in response to a duty imposed by the employer and that the accident arose out of the performance of that duty, entitling appellee to in-line-of-duty disability benefits.

Accordingly, the order below is AFFIRMED.

ERVIN and ZEHMER, JJ., concur.

1 . The Director of the Division of Retirement sits as administrator for purposes of hearing and determining claims under Chapter 121.