case law update

Lack of Objective Medical Evidence No Bar to Disability Retirement

A Biological Science Laboratory Technician at the United States Department of Agriculture was removed from her position on May 21, 2011. A month prior to that date, she applied for disability retirement under the Federal Employees’ Retirement System (FERS) due to her chronic migraine headaches. OPM denied the application on November 4, 2011, and the employee filed a request for reconsideration, which was also denied by OPM on June 21, 2012.

The employee filed an appeal with the Merit Systems Protection Board, and an MSPB administrative judge reversed OPM’s decision, finding that the employee had established by a preponderance of the evidence that she met the requirements to qualify for disability retirement benefits under FERS. OPM petitioned the full Board for review. On April 5, 2015, the MSPB denied OPM’s petition for review and affirmed the initial decision of the administrative judge.

At the outset of the Board’s analysis, the Board detailed the five requirements for qualification for disability retirement benefits under FERS. First, the employee must have completed at least 18 months of civilian service creditable under FERS. Second, while in a position subject to FERS, the employee must become disabled because of a medical condition, resulting in a service deficiency in performance, conduct, or attendance, or if there is no actual deficiency, the disabling medical condition must be incompatible with either useful and efficient service or retention in the position. Third, the disabling medical condition that forms the basis of the application must be expected to continue for at least one year from the date of the disability retirement application. Fourth, potential accommodations of the condition in the actual position held by the employee must be unreasonable. And finally, the employee must not have declined a reasonable offer of reassignment to a vacant position.

The Board noted that while it was undisputed the employee had completed the required 18 months of service, OPM had contested the administrative judge’s findings that the employee had established a prima facie case of entitlement. OPM also argued that because the employee had applied for “a position similar to her former position at USDA, applied for other full-time positions, and was employed in various part-time positions after she allegedly became disabled from her USDA position,” she had failed to prove her qualification for disability retirement benefits. OPM also asserted that the employee had not produced sufficient medical evidence to meet her burden of proof.

According to the Board, a removal for inability to perform the essential functions of a current position constitutes prima facie evidence of entitlement to disability retirement benefits, otherwise known as the Bruner presumption, from Bruner v. Office of Personnel Management, 996 F.2d 290, 294 (Fed. Cir. 1993). OPM argued that because the employee didn’t produce copies of her SF-50, or a proposal to remove her, or a decision to remove her for inability to perform the essential functions of her position, she could not take advantage of the Bruner presumption. However, the Board stated, no specific document is necessary to gain the Bruner presumption. The employee need only produce “sufficient” rather than “specific” evidence to support a finding, and the Board agreed that the employee produced enough other relevant evidence that she did not need the aforementioned documents. Those documents were: proof of a temporary accommodation (part-time schedule) provided by the agency that also indicated that she would not be accommodated in this way permanently, proof of a reassignment search that was unable to identify a vacant position to which the employee could be reassigned, and unrebutted testimony from the employee that she was notified she would be removed from her position for her inability to report to duty on a full-time basis. The Board found that this was sufficient evidence to apply the Bruner presumption.

At that point, the Board stated, the burden shifted to OPM to rebut the presumption by demonstrating a lack of objective medical evidence that provides an explanation as to why the condition renders the employee unable to perform work requirements. Once OPM has successfully met that burden, the onus is on the Board to weigh “the totality of the evidence produced by both sides” to determine whether the employee is entitled. Although OPM interpreted the initial decision as not allowing OPM to rebut the Bruner presumption, the Board found that the administrative judge considered the totality of the evidence produced after determining that OPM had successfully rebutted the Bruner presumption based on the employee’s lack of objective medical evidence.

As the Board explained, “objective medical evidence” is only one of several factors to be considered, and all “pertinent” evidence will be considered by the Board. The Board held that a lack of objective medical evidence “cannot be used as the sole basis for denying an applicant disability retirement benefits,” and listed subjective evidence like written statements concerning symptoms submitted by the employee as an example of another kind of pertinent evidence. Specifically, the Board observed that although OPM wrote in its reconsideration decision that the employee had not submitted results from diagnostic studies regarding migraines, there are no physical changes associated with migraines that would be documented in such a study, other than changes associated with pain symptoms.

The employee submitted a medical report dated March 30, 2011, which catalogued her migraine issues dating back to 1999, and the increase in frequency that occurred in 2008. That report also noted that the headaches had not been alleviated by a variety of treatment options, and requested that she be allowed to work only 80 percent of a normal work schedule. The employee’s supervisor testified that an 80 percent schedule would be an unacceptable reduction in productivity, and that the temporary accommodation had hampered her ability to complete projects in a timely manner. This evidence, when considered with all of the other evidence submitted by both OPM and the employee, led the Board to agree with the administrative judge that the employee was indeed entitled to disability retirement benefits.

Finally, OPM argued that the employee’s application for other positions and part-time work at other positions showed that she had failed to establish an entitlement since she was capable of working other positions. The Board held that the employee was not required to show that her disability had rendered her incapable of working all positions, and that she only had to show that she was incapable of working the position “she last held before filing her application.”

For the above stated reasons, the Merit Systems Protection Board denied OPM’s petition for review and ordered OPM to grant the employee’s application for disability retirement.

Read the full case: Rachel K. Angel, Appellant, v. Office of Personnel Management, Agency

 


This case law update was written by Conor D. Dirks, associate attorney, Shaw Bransford & Roth, PC.

For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.

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