Rights of the disabled

A recent case decided by the U.S. Court of Appeals raises an important question about who in the government is eligible for disability retirement.

The Office of Personnel Management and the Merit Systems Protection Board (MSPB) had ruled that an employee is ineligible for disability retirement if the employee is retained at the same grade and pay—even if the employee is unable to perform the duties of his official position—and is not transferred to an existing vacant position within the agency.

Bruce Bracey was a Navy civilian employee who was an electronics worker in Norfolk, Va. In 1991, he suffered several work-related injuries, and as a result, the Navy assigned Bracey to the light-duty shop at the facility where he worked. He worked there from 1991 to 1996 when the Navy released him as a result of a reduction in force that occurred when the Naval Aviation Depot closed. While he was assigned to the light-duty shop, Bracey retained the grade and pay of his electronics worker position, but the tasks he performed were not those of an electronics worker.

On Sept. 13, 1996, before the facility was closed, Bracey filed an application for disability retirement. OPM, however, denied the application because it said the Navy had provided him with permanent light-duty work that was within his medical restrictions.

Bracey appealed to the MSPB. He argued that he was entitled to a disability retirement because he couldn't perform the duties of an electronics worker. Nevertheless, the MSPB concluded that because he had retained the grade and pay of his electronics worker position, he was not eligible for disability retirement and ruled against him.

The decision wasn't unanimous. One MSPB member said that a disabled employee is eligible for disability retirement unless the employee is able to render "useful and efficient service in the employee's position" or is qualified for reassignment to an existing vacant position in the agency at the same grade or level. Neither of those conditions applied in this case.

It's not clear why the Navy was willing to "carry" Bracey on the payroll when he could no longer perform his duties but then balked at endorsing his eligibility for a disability retirement. Go figure.

Bracey appealed to the U.S. Court of Appeals. OPM argued that Bracey had been "accommodated" in his original position by being given a light-duty assignment and that he occupied the "accommodated position" of electronics worker, even though he was not performing the official duties of that position. The court didn't buy OPM's argument. It concluded that, if anything, Bracey's assignment to the light-duty shop proved he could no longer perform his job and was entitled to disability benefits. Accordingly, the court reversed the order of the MSPB and remanded the case back to it. Chalk up one for the good guys.

Zall is a retired federal employee who since 1987 has written the Bureaucratus column for Federal Computer Week. He can be reached at miltzall@starpower.net.

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