The U.S. Court of Appeals for the Federal Circuit recently upheld a Merit Systems Protection Board ruling that a former federal employee who has been restored to earning capacity must prove that she continues to be disabled for her former position if she seeks restoration of disability retirement. Licausi v. Office of Personnel Management, Fed. Cir. No. 03-3150 (December 2, 2003). The former IRS administrative assistant had received disability retirement due to chronic phlebitis of both legs. However, in 2000 OPM notified her that because she had earned more than 80 percent of the current rate of pay of her former position, “she was considered restored to earning capacity and was no longer entitled to continue receiving disability benefits.” In the following year, the petitioner sought restoration of her disability annuity because her earnings had declined and she continued to be disabled because of phlebitis.
OPM initially ruled against her due to a lack of medical evidence that her medical condition still existed or was of the same severity and on reconsideration found that her medical condition had not recurred. The MSPB administrative judge upheld OPM, finding that the appellant had not proven that she was unable to perform the duties of her former position. Before the Court of Appeals, Ms. Licausi argued that she was only required to show that her medical condition either persisted or had recurred but was not required to demonstrate that she could not perform the duties of her former IRS position.
Nevertheless, the Court of Appeals ruled against her, noting that the statute and regulation did not provide support for her argument. The court held that the term “disability” requires the “inability to render useful and efficient service in the employee’s position or another similar position.” The requirement that the employee seeking disability retirement prove that the medical condition in question prevents her from rendering efficient and useful service applies to both the employee’s initial application for disability retirement and in all other contexts as well. Because the retiree bears the burden of establishing her disability, she must prove that the medical condition is disabling. “Ms. Licausi therefore must demonstrate that her medical condition prevents her from performing the requirements of her former job in order to be considered ‘disabled.'”
The lesson to be learned from this case is that a federal disability retiree who is restored to earning capacity will have a difficult burden to prove that her disability prevents her from performing the essential duties of his or her former position. This problem can be avoided if the disability retiree earns less than 80 percent of the current pay of his or her former position in each calendar year.
** 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 http://www.passmanandkaplan.com. **
