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.

MSPB Modifies Legal Standard Governing Involuntary Disability Retirement

In Vaughn v. Dept. of Agriculture, 2011 MSPB 61 (June 13, 2011), the U.S. Merit Systems Protection Board modified the standard governing involuntary disability retirement. Danny Vaughn originally filed an appeal alleging that the Agency had discriminated against him on the basis of disability and in retaliation for prior EEO activity, creating a hostile work environment that resulted in the deterioration of his medical condition and resulting in his involuntary disability retirement.

Because retirements are presumed to be voluntary, an appellant with a claim of involuntary retirement has the burden of proving that the retirement was not voluntary. In general involuntary retirement claims, an appellant can overcome the presumption of voluntariness by showing that the retirement resulted from misinformation or deception by the agency or was the product of coercion by the agency. The MSPB has taken a "totality of the circumstances," approach to these cases in determining whether factors operated on the employee's decision-making process that effectively deprived the employee of freedom of choice. The Board has also found retirement to be involuntary using the principles of constructive discharge, where the agency engaged in a course of action that made working conditions so difficult or unpleasant that a reasonable person would have felt compelled to retire.

The MSPB's standard for determining whether a disability retirement is involuntary is different than the general standard used to determine whether a non-disability retirement is involuntary. Under the MSPB's standard for establishing involuntary disability retirement claims, the appellant needs to establish that an accommodation was available prior to the date of separation, that the accommodation would have enabled the appellant to continue working, that the appellant communicated a desire to continue working, but that his medical limitations required a modification of the appellant's work conditions and the Agency failed to provide that accommodation.

In unusual cases, the Board has applied the general standard for establishing involuntary (non-disability) retirements to assess the voluntariness of a disability retirement. One example is the Hosford v. Office of Personnel Management case where the Board found the appellant's disability retirement was involuntary on the basis of misinformation given to the appellant.

In the instant case, the Board carved out yet another exception to the standard for establishing involuntary disability retirement claims. In this case, Mr. Vaughn alleged that the Agency created a discriminatory, hostile work environment, which not only led to intolerable working conditions but also exacerbated his medical conditions causing him to become disabled. It was under these limited circumstances that the Board held that the appellant was entitled to use the general principles for finding a constructive discharge to establish that his disability retirement was involuntary.

If you would like to discuss your employment issue, please contact Ms. Whitfield for a consultation at 301.869.8774, or via the online consultation form.

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 in 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.

MSPB Waives Deadline for Mentally Incompetent Employee’s Disability Retirement Application

In a recent decision, Creasy v. Office of Personnel Management, MSPB Docket No. DC-831-07-0074-I-1 (September 21, 2007), the Merit Systems Protection Board (MSPB) found that Mr. Creasy was mentally incompetent and therefore waived the deadline for filing and remanded the case to the Office of Personnel Management (OPM).

Mr. Creasy was a Crane Operator Supervisor with the Department of the Navy who resigned in January 2002. In October 2004, Mr. Creasy was admitted to a hospital after an episode of strange behavior, and in April 2005, was readmitted when he stopped taking medication and began to show signs of paranoia, lethargy, auditory hallucinations and erratic behavior. In August 2005, Mr. Creasy, with the assistance of his sister, filed an application for disability retirement benefits under the Civil Service Retirement System (CSRS), citing medical, as well as mental health problems. Mr. Creasy’s application was denied on the grounds that he did not apply within a year of his separation from service.

Federal employees who wish to apply for disability retirement must do so within one year after the date of the employee’s separation from federal service. The deadline for applying for disability retirement is waived only if the employee was mentally incompetent to file within the time frame for filing.

In French v. Office of Personnel Management, 810 F2d 1118 (Fed. Cir. 1987), the MSPB explained to meet the standard for mental incompetence an employee must show that s/he was unable to handle her/his personal affairs because of mental disease or injury. While it is not necessary that the employee is committed to a mental institution to meet the mental incompetence standard, this standard is still not easily met. To determine whether an employee met the standard for mental incompetence, the Board requires the submission of medical evidence to support the employee's assertion that s/he is mentally incompetent.

In support of his case, Mr. Creasy presented not only medical evidence of his mental health condition, but also statements by family members and friends who had witnessed his mental and physical decline. The Board found that the Administrative Judge (AJ) had not give sufficient weight to the testimony of Mr. Creasy’s doctor, and discounted the doctor’s conclusions based upon the AJ’s own reading of the DSM-IV-TR. The Board determined that the AJ, not being a medical doctor, could not override the doctor’s professional conclusion with her own interpretation of the DSM-IV-TR. The Board remanded Mr. Creasy’s case to OPM for a determination on the merits of Mr. Creasy’s application for disability retirement.

For Federal employees who are interested in more information regarding disability retirement, the Office of Personnel Management is a very good place to start. Employees who are qualified under CSRS can find information on this website, and employees who are qualified under FERS can find information on this website. The regulations regarding the application deadline for disability retirement can be found at 5 U.S.C. 8337(b) for employees under the Civil Service Retirement System (CSRS) and 5 U.S.C. 8453 for employees under the Federal Employees’ Retirement System (FERS). To schedule a consultation to discuss disability retirement issues, please contact Ms. Whitfield at 301-869-8774, or use the online consultation request.

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.