Monday, April 9, 2012

MSPB Remands Disability Retirment Appeal


In Jackson v. OPM, 2012 MSPB 49 (April 6,2012), the Board remanded the Appellant’s petition for review of a decision affirming OPM’s reconsideration decision denying his application for disability retirement.

In early 2010 Mr. Jackson stopped going to work due to his medical conditions and in June 2010, he applied for disability retirement under the Federal Employees’ Retirement System (FERS). OPM denied Mr. Jackson’s application on the basis that he had failed to provide sufficient diagnostic and treatment evidence pertaining to these conditions or that his absence from the workplace was medically warranted. Mr. Jackson appealed OPM’s decision and the Administrative Judge issued a decision affirming OPM’s reconsideration decision.

The Administrative Judge stated that the “general rule” in disability retirement cases is that the medical evidence must show how the employee’s conditions affect his ability to perform specific job duties and requirements. While the Administrative Judge did find that one of Mr. Jackson’s treatment providers explained how his conditions affected his work requirements, the Administrative Judge found that the medical evidence did not unambiguously and without contradiction indicate that Mr. Jackson could not perform the particular duties of his position. The Board found that because the Administrative Judge did not have the benefit of the recent decision in Henderson v. OPM, 117 MSPR 313 (2012), the case should be remanded for further adjudication. In Henderson, the Board overruled cases that have provided an exception to the general rule, allowing the Board to connect the medical evidence to the job duties where such evidence unambiguously and without contradiction indicates that the appellant cannot perform the duties or meet the requirements of his position. In Henderson, the Board found specifically that to require medical evidence that is unambiguous and without contradiction would impose a higher burden of proof than the “preponderance of the evidence standard required. 5 CFR § 1201.56(a), (c)(2). The Board held that the ultimate question is whether the appellant’s medical impairments preclude him from rendering useful and efficient service in his position, and that this question must be answered in the affirmative if the totality of the evidence makes the conclusion more likely to be true than not.

For federal employees who apply for disability retirement, and indeed for OPM, this case stands as a reminder that the medical evidence provided need only meet the preponderance of the evidence standard. However, applicants for disability retirement are still best advised to gather the most thorough medical evidence possible as doing so makes the likelihood of being granted disability retirement higher, and may reduce the need to litigate their claims.

This blog is not intended to provide legal advice or representation, but rather to provide very general information regarding a variety of subject areas. The viewing of the information contained on this blog does not create or establish an attorney-client relationship. Further, this information should not be relied upon without first consulting with an attorney regarding your specific situation. To arrange a consultation with the Lynette A. Whitfield, please call 301.869.8774, or click here to make your request for a consultation via my webpage.


Thursday, January 26, 2012

MSPB Affirms Administrative Judge's Determination that Agency Failed to Prove Appellant's Performance Was Unacceptable


In a recent decision, Muff v. Dept. of Commerce, MSPB Docket No. DC-0432-11-0095-I-1, the Merit Systems Protection Board (MSPB) found that the agency failed to prove by substantial evidence that the appellant’s performance was unacceptable. The appellant was a GS-4 field representative for the Department of Commerce who was removed under 5 USC § 4303 (Chapter 43) for failure to perform in a critical element of her position. The appellant had successfully completed a Performance Improvement Plan (PIP) for a critical element from July to October of 2009. The agency later based its decision to remove the Appellant upon her performance of that same critical element in May 2010.

The appellant appealed her removal to the MSPB where the Administrative Judge found that while the agency did establish that the appellant’s performance of the critical element was unacceptable for May 2010, the appellant’s performance for only one month was an insufficient basis upon which to remove the appellant under Chapter 43. The Administrative Judge also found overwhelming evidence in the record showed that the appellant’s cumulative performance for the year prior to her removal was at the acceptable level.

Under Chapter 43, an agency may remove an employee for unacceptable performance after a successful completion of a PIP if the instances of unacceptable performance are in the same critical element(s) as those involved in the PIP and the agency’s reliance for its action is limited to those instances of performance that occur within 1 year of the advance notice of the PIP. In Brown v. Veterans Administration, 44 MSPR 635, (1990), the MSPB held that if the Administrative Judge determines that the appellant performance the critical element acceptably during the PIP, s/he should then determine whether the appellant continued to acceptably perform. If the Administrative Judge finds that the appellant had performance failures, s/he is then to determine whether those failures, in light of the appellant’s performance during the year prior to the notice of proposed removal, amounted to unacceptable performance. Id., at 644. The Board reiterated its previous statement in Sullivan v. Dept. of the Navy, 44 MSPR 646, 656 (1990), that rather than imposing a blanket rule, the MSPB will have to determine on a case-by-case basis whether an agency’s evidence of post-PIP performance constitutes substantial evidence of truly unacceptable performance.
For federal employees who have successfully completed a PIP, this decision provides a good reminder that subsequent poor performance can be considered by the agency in a later decision to remove the employee. However, this decision also provides guidance to agencies regarding the very careful consideration necessary when proposing the termination of a federal employee under Chapter 43.

This blog is not intended to provide legal advice or representation, but rather to provide very general information regarding a variety of subject areas. The viewing of the information contained on this blog does not create or establish an attorney-client relationship. Further, this
information should not be relied upon without first consulting with an attorney regarding your specific situation. To arrange a consultation with the Law Offices of Lynette A. Whitfield, LLC, please call 301.869.8774, or click
here to make your request for a consultation via my webpage.