In Harris v. Office of Personnel Management, 2008 MSPB 240, Docket No. CH-844E-08-0308-I-1 (November 13, 2008), the Board affirmed OPM’s decision denying an application for disability retirement benefits because the applicant failed to establish that she was disabled from useful and efficient service in her position.
The appellant was employed with the Department of Veterans Affairs as a GS-6 medical instrument technician. After she applied for disability retirement on the basis of several medical conditions, including hypertension, diabetes, asthma, depression, anxiety, back pain, chest pain, and anemia, the agency removed her for inability to maintain a regular work schedule. OPM denied her application on the basis that the medical evidence submitted was insufficient to demonstrate her entitlement to disability retirement benefits. After the Board denied the appellant’s petition for review, it reopened the appeal on its own motion, and affirmed its initial decision sustaining OPM’s decision.
An employee seeking disability retirement benefits has the ultimate burden of persuasion to show that she is incapable, due to disease or injury, of providing useful and efficient service in her position. In Harris, the Board determined that the duties of the appellant’s position were primarily sedentary in nature. The Board also established the medical evidence mainly consisted of documentation excusing the appellant from work for work-related stress illness for short periods of time, explaining her treatment for the stress, and requesting reassignment to a less stressful work environment. The Board criticized the sufficiency of the medical evidence because it only constituted evidence for only some of the several medical conditions relied upon by the appellant when seeking entitlement to disability retirement benefits; and, more importantly, it failed to show how the appellant’s medical conditions prevented her from performing the duties of her position. The Board also found unhelpful the appellant’s testimony at hearing which attributed a significant portion of her work-related stress to her interactions with other agency employees. Ultimately, the Board found that the appellant failed to meet her ultimate burden of persuasion.
This case reaffirms that an appellant must show that she is unable to perform the essential functions of her position in general and not only in the context of what she perceives to be a hostile work environment. Moreover, the decision counsels that absence from work does not by itself establish entitlement to disability retirement; there must be some corroborating evidence demonstrating that work performance is impaired by the absence from work.
The decision teaches that although situational circumstances of harassment may be evident to an employee, for the purposes of filing a disability retirement application, the importance of such concerns are muted. When filing for disability retirement benefits, it is imperative that the claimant demonstrate not only that he or she is disabled, but also show how such disability impairs the ability to perform the essential functions of the employee’s position. Attention must be placed on establishing the nexus between the disability and the requirements of the position itself, without regard for the actual working conditions.
* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to
The attorneys at Passman & Kaplan, P.C, are the authors of The Federal Employees Legal Survival Guide, Second Edition, a comprehensive overview of federal employees’ legal rights. To order your copy, go to
http://www.passmanandkaplan.com. http://www.fedweek.com/pub/index.php This book has been selling for $49.95 plus s&h for over two years, but as a special offer to FEDweek readers, we’ve reduced the price to only $29.95 plus s&h.