Fedweek Legal

A recent majority decision by the Merit Systems Protection Board (“MSPB”) clarified some of the requirements for federal employees applying for disability retirement under the Federal Employees Retirement System (“FERS”). The employee in Gronto v. Office of Personnel Management, 2006 M.S.P.B. 1441 (2006), worked at the Postal Service as a mail processing clerk. She suffered from major depression, panic disorder, and agoraphobia. The employee had previously been approved to receive Social Security Administration (“SSA”) disability benefits.


Initially, OPM denied her application because it found that medical reports from the employee’s psychologist and psychiatrist did not show that her medical conditions were so severe as to “prevent [her] from performing or attending the workplace.” When the employee appealed OPM’s decision to an administrative judge at the MSPB, the judge also denied her application because the medical reports submitted by the appellant did not support a finding that her conditions were so severe that they prevented her from performing useful and efficient service in her position. The judge criticized the employee’s psychiatrist for not offering an explanation of the testing methodology used to support his conclusion that the employee could not perform the duties of her position. The judge also did not find SSA’s award of disability benefits persuasive evidence to support disability retirement because the disability benefit determination did not include an explanation of the reasoning to support the award.

The employee appealed the decision, and the Board reversed the administrative judge’s decision, thus granting the employee disability retirement. In its decision, the Board presented examples of the type of supportive medical evidence and subjective evidence necessary to satisfy the requirements for disability retirement. To qualify for disability retirement under FERS, the employee must establish that: (1) she completed 18 months of creditable civilian service under FERS; (2) during employment, the employee became disabled, resulting in deficiency in performance, conduct, attendance, or rendered the employee unable to perform useful an efficient service; (3) the medical condition will persist for at least one year from the date of application for disability retirement; (4) accommodations are unreasonable; and (5) the employee did not decline a reasonable offer of reassignment to a vacant position. The Board opinion focused on an analysis of the second, third, and fourth factors.

The Board described the type of objective medical evidence, subjective evidence from the applicant, and evidence from the employee’s supervisor that would support a disability retirement application. The employee’s physicians confirmed her assertion that she suffered from depression, panic disorder, and agoraphobia. Her psychologist had met with the employee 87 times over more than four years. Also, she met with her psychiatrist at least seven times in over 15 months. Despite only referencing one clinical test, both medical professionals stated that the employee’s medical conditions prevented her from going to work and resulted in her being unreliable to perform her job. The employee’s emotional disorders were permanent, and none of the medication she took was effective. The Board also gave weight to the SSA disability benefits award because it provided more corroborative evidence of her disability. Although the SSA award did not provide an explanation, the Board considered the SSA determination to be persuasive evidence.

The Board also considered the employee’s personal statements which corroborated her doctors’ analyses. The employee stated that due to her depression and agoraphobia, she was unable to get out of bed and experienced debilitating panic attacks. Even though she worked in one of the most stress-free jobs, she could not attend work regularly. The Board credited her statements because of her 14-year work record with the same agency and her attempts to find alternative work that would accommodate her symptoms. The employee’s supervisor also agreed with her statements that her work attendance became irregular, amounting to unacceptable conduct.


Although the employee eventually received disability retirement, this case emphasizes the importance of obtaining as much medical support as possible prior to applying for disability retirement. Mere reliance upon unsupported, conclusory statements from medical professionals is not enough. Even medical determinations by federal agencies other than OPM are insufficient. Therefore, it is very helpful for disability retirement applicants to obtain legal representation prior to submitting applications. The standards for disability retirement are relatively clear, but the evidence must be presented in a thorough and organized manner.

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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