Rights of the disabled
- By Milt x_Zall
- Mar 04, 2001
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.