Fedweek Legal

In Dussault v. Office of Personal Management, 2006 MSPB 241 (2006), the Merit Systems Protection Board (“Board”) reversed the administrative judge’s decision to deny a postal worker’s disability retirement and ordered OPM to grant her application for disability retirement benefits under the Federal Employees Retirement System (“FERS”).


The appellant was a city carrier with the U.S. Postal Service (“USPS”) in Springfield, Massachusetts. In 2003, she stopped reporting to work and thereafter filed an application for disability retirement under FERS, citing the following conditions: stress, anxiety, depression, Chronic Obstructive Pulmonary Disease (COPD), asthma, emphysema, and diverticulosis. The Office of Personnel Management concluded that the appellant failed to show that her physical condition were causing a disability and further held that it was unclear whether her psychological conditions were disabling. On May 27, 2005, the appellant was removed from service because “she was physically unable to perform the duties of her position.”

Thereafter, she appealed OPM’s decision to an administrative judge. The AJ affirmed OPM’s decision, stating that the medical evidence the appellant provided was conclusory and did not reasonably explain how her conditions rendered her unable to perform her job. Still dissatisfied, the appellant filed a petition for review to the Board for review of the AJ’s initial decision.

The Board reversed the AJ’s decision, concluding that the appellant was entitled to disability retirement under FERS. Specifically, the Board addressed the AJ’s determination that the appellant’s evidence was conclusory. Generally, when applying for FERS disability retirement, an employee must present specific medical evidence which explains how certain aspects of the employee’s condition affects her job requirements. Here, the appellant’s medical evidence failed to do so.

However, the Board applied a narrow exception to this rule, which allows the Board to link the medical evidence to the job duties and requirements to find whether the applicant is entitled to disability retirement. Examining the medical evidence, the Board concluded the appellant’s COPD, which is a chronic and incurable condition affecting the lungs, sufficiently limited the appellant from performing the duties of her position. Therefore, given that the USPS previously found that accommodation and reassignment were not possible, the Board concluded that the appellant was entitled to disability retirement.


This case is an example of the complexities of disability retirement. Eligibility for FERS disability retirement is conditioned upon several requirements: (1) at least 18 months of creditable civilian service; (2) disability because of a medical condition, resulting in a service deficiency in performance, conduct, or attendance, or if there is no such actual service deficiency, the disabling medical condition is incompatible with either useful and efficient service or retention in her position; (3) the disabling medical condition must be expected to continue for at least one year from the date the disability application is filed; (4) accommodation of the disabling medical condition in the position held must be unreasonable; and (5) the employee must not have declined a reasonable offer of reassignment to a vacant position. In this case, the appellant, who proceeded without representation, failed to submit sufficient medical evidence to OPM in the first place. If she had done so, OPM may have granted her application, saving her time and money spent on appeals. In the end, however, the Board bridged the evidence gap and awarded disability retirement.

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.

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