What's disabled?

A case recently decided by the Merit Systems Protection Board (MSPB) provides more questions than answers when it comes to deciding who files for disability. The case in point involves Jeffrey Weaver.

Weaver was employed as an administrative support specialist at the GS-11 grade. He was fired April 2, 1999, because of a physical inability to perform his duties, as demonstrated by his extended absence from the workplace. Weaver applied for disability retirement with the Office of Personnel Management.

He claimed that he suffered from numerous conditions, including depression, lupus, anemia, hypertension and diabetes. He also said that he had been awarded disability benefits by the Social Security Administration.

However, OPM determined that Weaver was not entitled to disability retirement because the evidence he submitted failed to establish a disabling medical condition of the severity to prevent Weaver from performing the essential duties of his position. That is hard to believe because surely, the evidence submitted to SSA should have clearly demonstrated that. It's not clear whether OPM obtained Weaver's medical records from SSA.

Weaver appealed OPM's decision. He submitted further evidence in support of his case. OPM said he had again failed to establish his entitlement to disability benefits.

But the administrative judge adjudicating the appeal found that Weaver had submitted extensive medical and other evidence that showed he was unable to render useful and efficient service. Thus, the administrative judge found Weaver entitled to disability benefits and reversed OPM's decision.

OPM then filed a petition for review with the MSPB, which faulted the administrative judge for not presenting his decision in the required format and for not specifically determining whether the evidence supported the finding that Weaver was entitled to a disability retirement annuity.

In addition, the MSPB noted that the administrative judge's decision reflects a presumption that an employee's removal for physical inability to perform the essential functions of his position constitutes prima facie evidence that he is entitled to disability retirement.

However, the MSPB said the administrative judge never advised the parties of the presumption or explained how it could be rebutted. So the MSPB vacated the initial decision and remanded the appeal back to the administrative judge for the issuance of a new decision.

Isn't this a waste of taxpayer dollars? If someone meets the stringent eligibility requirements for Social Security disability benefits, he meets Federal Employees Retirement System disability requirements. And if you're fired because you can't meet the physical requirements of your federal job, doesn't that mean you're disabled? So what's going on here? A fed certainly got a raw deal. n

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

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