Posted by: Melville Johnson, P.C.
June 23, 2008
Topic: Pension Rights
The Law Office of Melville Johnson, P.C. can provide representation in cases of denial of Disability Retirement Benefits before the Merit Systems Protection Board:
The U.S. Postal Service appointed the Appellant to the position of Rural Letter Carrier on October 6, 1990. On July 1, 2002, the Appellant filed an application for disability retirement, citing eczema caused by contact with the mail. The Appellant's eczema was severe to the point that the skin on his hands would scale, blister, and peel, causing infection. The condition was very painful to the appellant and impaired his dexterity. Additionally, the accommodation which the Appellant was receiving, latex gloves, was not helpful as the gloves made the condition worse due to lack of air. Further, the medications Appellant was taking for this condition, namely a variety of corticoid steroids, caused clumsiness and other side effects permanently impacting the performance of his letter carrier duties.
On January 3, 2003, OPM approved the application, and the Appellant's disability retirement commenced on January 25, 2003. On November 3, 2006, OPM requested that the Appellant submit current employment and medical information so that OPM could assess the Appellant's entitlement to a continuing disability retirement annuity. The Appellant responded on November 30, 2006, stating that he had not recovered sufficiently to return to work. The Appellant also enclosed a letter from his treating physician, Dr. David Wampler, who stated that a November 15, 2006, examination of the Appellant was "unremarkable" and that the appellant was currently "free of his eczema." However, the letter also stated, "[T]he prognosis is that if [the appellant] were to return to work he would have a recurrence of his severe, disabling eczema. Therefore he cannot return to the work or similar work that he previously was involved in."
On January 22, 2007, OPM issued an initial decision finding that the Appellant's condition was no longer disabling. OPM based its decision on Dr. Wampler's assessment that the Appellant was free of eczema at the time of his examination. The Appellant subsequently requested that OPM reconsider its initial decision and on May 17, 2007, OPM issued a final decision affirming its initial decision. On May 22, 2007, the Appellant filed an appeal of OPM's final decision, arguing that it had been anticipated that he would recover from his symptoms after leaving the workplace environment.
After holding a telephonic hearing, the administrative judge (AJ) issued an Initial Decision (ID) affirming OPM's final decision. The AJ found that the Appellant failed to establish by a preponderance of the evidence that he was entitled to a continuing disability retirement annuity. Specifically, the AJ found that "the Appellant's eczema is not continuous in that he is not currently suffering from this condition," and that "the Appellant has not shown that his condition will last for one year, and that he continues to be disabled." The Appellant filed a petition for review (PFR) of the ID that affirmed the Office of Personnel Management's (OPM's) final decision discontinuing the appellant's disability retirement annuity under the Civil Service Retirement System (CSRS).
Under the CSRS, a disabling condition is defined as one that renders an individual unable to provide useful and efficient service in the position he/she last occupied. 5 U.S.C. § 8337(a); Rountree v. Office of Personnel Management, 38 M.S.P.R. 480, 485 (1988); 5 C.F.R. § 831.1203(a)(2). OPM may subject an annuitant receiving a CSRS disability retirement annuity to an annual medical examination to determine whether his disability is continuing so as to entitle him to a continuing disability retirement annuity. 5 U.S.C. § 8337(c)-(d); 5 C.F.R. § 831.1208. In an appeal from an OPM decision discontinuing a voluntary disability retirement annuity, the annuitant bears the burden of proving his continued disability by a preponderance of the evidence. Prestien v. Office of Personnel Management, 8 M.S.P.R. 698, 704-05 (1981); see 5 C.F.R. § 1201.56(a)(2). The annuitant may meet this burden by presenting evidence such as the following: (1) Objective clinical findings; (2) diagnoses and expert medical opinions; (3) subjective evidence of pain and disability; and (4) other evidence relating to the effect of the appellant's condition upon his ability to perform in the position he last occupied. See Rountree, 38 M.S.P.R. at 483. The Board will find that an appellant is disabled if the appellant can show that his condition renders him unable to perform the specific work requirements of his position. See 5 U.S.C. § 8337(a); Marucci v. Office of Personnel Management, 89 M.S.P.R. 442, ¶¶ 9, 12 (2001); 5 C.F.R. § 831.1203(a).
Here, the Board concluded that in the absence of fraud, misstatement of fact, or new medical evidence relating to the Appellant's July 1, 2002 disability retirement application, the Board was unaware of any authority that would have allowed OPM to discontinue the appellant's disability retirement annuity on this basis. See 5 C.F.R. § 831.1206(b)(2); cf. Longoria v. Office of Personnel Management, 78 M.S.P.R. 242, 244-45 (1998) (OPM's authority to rescind a disability retirement annuity under the Federal Employees' Retirement System is subject to regulatory limitations). Thus, the Board reasoned the only issue before it was whether the Appellant had shown that he was currently disabled from rendering useful and efficient service in his former position. See Rountree, 38 M.S.P.R. at 483. The Board found that the Appellant's medical reports do contain a reasoned explanation as to why the Appellant's medical condition renders him unable to perform the essential functions of his former job. Further, the Board reasoned that the mere fact that the Appellant currently lacks the symptoms of his disabling condition did not mean that the Appellant had recovered from his condition or was otherwise not currently disabled. The Board Ordered that OPM to take such action as is necessary to continue the appellant's receipt of his disability retirement annuity.
This case was found on the Merit Systems Protection Board Website at www.mspb.gov.
