Inconsistent criteria hurt fed disability claims

You'd think that if someone met the stringent eligibility requirements for disability benefits under the Social Security Act, that individual would also qualify for disability benefits under the Federal Employee Retirement System (FERS). However, a recent court decision says the two are not necessarily synonymous.

The case in point involved Thomas Trevan, a laborer with the U.S. Postal Service from 1987 to 1991. In April 1991 he applied for disability retirement benefits under FERS, claiming that he experienced chest pains and shortness of breath following minimal exertion. He also said he suffered from an irregular heartbeat and respiratory dysfunction.

To accommodate Trevan, USPS assigned him to light duty, but Trevan stopped working in June 1991, at which point USPS fired him for "inability to perform his duties."

On his FERS disability application, Trevan indicated that he had started receiving Social Security disability benefits in 1991. To qualify for Social Security disability, an applicant must be unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months."

FERS disability requirements are more lenient. An applicant only must show he is unable "because of a disease or injury to render useful and efficient service."

When Trevan filed for disability under FERS, he submitted various medical evidence—for example, medical consultation sheets and progress notes from hospitals he had been treated at, chest and lung X-rays, an EKG report and so on. But the Office of Personnel Management requested additional information to document his claim.

When Trevan failed to provide the requested information, OPM issued an initial decision Feb. 25, 1992, denying disability. Trevan then requested reconsideration, reiterating his earlier complaints and submitting some additional documentation but not nearly enough to satisfy OPM, which issued a final denial Feb. 1, 1994.

OPM, in its decision, agreed that the medical evidence suggested that Trevan had a heart condition. OPM further noted that X-ray reports submitted by Trevan were normal while other medical evidence he submitted was inadequate to establish a significant cardiac and respiratory condition that would prevent him from working.

No Relief From MSPB

Trevan appealed to the Merit Systems Protection Board. MSPB sided with OPM, primarily because Trevan had failed to carry his burden of proof.

MSPB ruled that just because Trevan received Social Security benefits, this did not automatically qualify him for a FERS disability because the standard for determining disability under the Social Security law differs from the standard for a disability under FERS.

Trevan then took his case to the U.S. Court of Appeals for the Federal Circuit. The court also ruled against Trevan, saying prior case law indicates the receipt of Social Security disability benefits does not, per se, establish entitlement to disability benefits under FERS.

But despite this ruling, the court did observe that the stricter Social Security standard logically encompasses the FERS disability definition, which is "the inability to perform useful and efficient service in the employee's present position or a reasonable reassignment."

The court said a conference committee report that accompanied the passage of FERS spelled out two possible categories of disability recipients: a person who is "occupationally disabled" but not "totally disabled" so as to qualify for Social Security benefits and thus would receive only disability benefits under FERS; or a person who is totally disabled and therefore would receive both Social Security and FERS disability benefits.

Based on this language, the court said it was not Congress' intent that an award of Social Security benefits should mandate a finding of "disability" under FERS.

The specific language of the FERS Act leaves it up to OPM to determine disability. This all boils down to the fact that the court felt it was up to OPM to determine questions of disability and adjudicate claims under the provisions of FERS without deferring to the determinations made by the Social Security Administration. Makes a lot of sense, doesn't it? Not to me it doesn't.

I'm not sure there's anything Trevan can do except take this up with the Supreme Court or file a new application and submit adequate evidence. My advice would be to do the latter and fire his lawyer for poor representation.

**

Bureaucratus is a retired federal employee who is a regular contributor to FCW. You can read his column on FCW's Web page at http://www.fcw.com or send e-mail to bureaucratus@fcw.com.

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