Disability round about

A fed with numerous medical problems was fired by her agency because she wasn't physically capable of doing her job. But it took three appeals before she could establish her entitlement to disability retirement. The case in point involved Agnes Cheers.

Cheers, who was a materials handler with the Defense Logistics Agency, filed for disability retirement in 1997. She listed her medical conditions as a fractured right ankle, lumbar sprain of the left lower back and left shoulder sprain. Cheers said she had been disabled since September 1990, but that DLA had accommodated her by placing her on light duty.

DLA stated that it had run out of the kind of work it provided to Cheers as an accommodation and proposed to reassign her with retained pay as a security guard. DLA then canceled the proposed reassignment after Cheers flunked a random drug test for cocaine. DLA fired her in 1997 because she was "medically disqualified from [the] position" of materials handler, prompting Cheers to file for disability retirement.

What should have been a slam-dunk for Cheers became instead a horrific ordeal. In a decision, dated April 5, 1999, the Office of Personnel Management determined that Cheers was not eligible for disability retirement because she had not shown that she had any service deficiency and DLA was accommodating her conditions. How OPM could have reached that conclusion after her own agency had fired her because she was "medically disqualified from [the] position" defies logical explanation.

Cheers appealed OPM's decision to the Merit Systems Protection Board. The MSPB administrative judge said that Cheers was entitled to disability retirement unless DLA could prove that she wasn't! But then, the judge agreed with OPM that Cheers' medical evidence was insufficient to establish entitlement to disability retirement benefits. Right. And the earth is flat! Someone sure didn't want Cheers to get disability retirement.

Cheers asked the full MSPB to review her case. The full MSPB said that Cheers could establish entitlement to disability retirement benefits based on her removal from her position. So why did both OPM and the administrative judge turn Cheers down? My guess is they had it in for her because she flunked the drug test. Although that may suggest that Cheers wasn't an exemplary employee, it doesn't justify a flagrant disregard for the rules.

The MSPB vacated the initial decision and remanded this case back to the OPM Regional Office to issue a new initial decision. OPM now has the burden to produce evidence to rebut the prima facie showing — made by DLA's removal decision — that Cheers is entitled to disability retirement benefits. Is Cheers out of the woods? We'll see. I wouldn't put it past OPM to try some other shenanigans!

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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