The Merit Systems Protection Board reversed its administrative judge (AJ) in a precedential decision and waived the statutory one-year deadline for filing a disability retirement application in Bruce v. Office of Personnel Management, 2013 MSPB 51 (7/8/13). The appellant had stopped coming to work in 1997 after suffering an incident of sexual harassment at work and was carried on leave without pay until July 19, 2004, when she was removed. Her brother was named as her legal guardian on July 19, 2010, and filed her disability retirement application, asserting that she became mentally incompetent by July 19, 2004, because of major depressive disorder that rendered her unable to complete the application in a timely manner.
OPM rejected the application as untimely filed, and an appeal was subsequently filed with the MSPB. The appellant’s brother argued that "she had so neglected her personal affairs because of severe psychiatric symptoms that she lost her home, was living in a homeless shelter, was facing law suits, multiple financial judgments, and bankruptcy, and was not responding to subpoenas." Following a hearing with testimony by appellant’s Board-certified forensic psychiatrist, the AJ "found that it was not shown that the appellant was incompetent before July 19, 2005, and remained incompetent until July 19, 2010, when her brother was appointed her legal guardian."
The Board disagreed with its AJ, noting that the statutory "1-year deadline may be waived ifthe employee is mentally incompetent at the date of separation or within 1 year thereafter and if the application is filed with OPM within 1 year from the date the employee is restored to competency or is appointed a fiduciary, whichever is earlier." "The definition of mentalincompetence ‘may be satisfied by one having some minimal capacity to manage his own affairs,and not needing to be committed;’ the applicant need not show that he was a ‘raving lunatic continuously."’ While agreeing that the forensic psychiatrist did not examine the appellant in the one-year period following her separation, the Board found that he had seen her on six occasions in 2003. However, she failed to follow through on her appointments and did not take herprescribed medication.
The appellant’s brother subsequently obtained Social Security disability benefits for her, and she returned for two visits to her forensic psychiatrist. He testified that her mental condition had not improved, that she was mentally incompetent for at least the one-year period following her separation, and she continued to be mentally incompetent. The Board disagreed with the AJ and held that "a finding of mental incompetence need not always be based on medical evidence reflecting the results of an examination conducted of the appellant during the one-year filing period." In addition to the lack of any contrary medical evidence, the Board cited the significant detailed nonmedical testimony of appellant’s brother and mother. Therefore, the Board concluded that the appellant was mentally incompetent during one-year period following her separation, that her application was filed within one year from the date her brother was appointedas her guardian, "and that therefore the statutory 1-year time limit for filing her application for disability retirement must be waived. 5 U.S.C. § 8453."
The case was remanded to OPM for a determination on the merits of the application. The appellant is represented by Edward H. Passman, a founding principal of Passman & Kaplan, P.C.
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