OPM Disability Retirement and the Fully Successful Employee
The general eligibility provisions for disability retirement under the Civil Service Retirement System (CSRS) and the Federal Employees Retirement System (FERS) are outlined at Title 5 of the United States Code. To qualify for a disability retirement, Federal employees must have served for a minimum amount of time (different minimum time periods, depending on the retirement system) and no longer be able to effectively perform his or her duties at the current grade or pay level without accommodation due to a medical condition that will continue for more than one year.
Disability retirement applications are processed and adjudicated by the Office of Personnel Management (OPM); the applicant may request a reconsideration of a negative first level decision by OPM as well. The Merit Systems Protection Board (MSPB, or the Board) has jurisdiction over appeals of OPM decisions. The Board set down the basics for appeals to its body in Chavez v. OPM, 6 MSPB 343 (1981). The Board is not limited to a review of the record before OPM so the proper scope of review at the MSPB is de novo. This decision also established that it is the employee who bears the burden of persuasion by a preponderance of the evidence from an adverse OPM decision.
The Court of Appeals for the Federal Circuit shifted the burden of production to the government in cases where the employee has been separated for physical inability to perform his duties and no accommodation could be made. In Bruner v. OPM, 996 F.2d 290 (Fed. Cir. 1993), the court held that the employee has met his prima facie burden of proof through separation by disability (note that the employee still must establish entitlement by a preponderance of the evidence).
In the absence of the so-called “Bruner Presumption,” otherwise sick or injured workers who are on staff and perform at satisfactory levels present difficult issues for disability attorneys, or those proceeding pro se, if these injuries or diseases prevent the workers from performing one or more of the essential elements of the job descriptions and other disability criteria are met. I have been involved in cases in which late career top performers filed for disability benefits as a result of conditions that precluded them from performing certain essential elements of job descriptions but did not affect performance, conduct or attendance. The agencies did not initiate separation but could not accommodate in the positions. OPM is not accustomed to this type of application but ultimately each applicant was successful.
OPM disability applications are pursued by a full spectrum of employees - from those removed because of a condition to those continuing to perform in spite of it.
