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.

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