Health reasons

The Merit Systems Protection Board recently decided a very unusual case involving disability retirement entitlement. It involved Lawrence Dudar, who was employed in a position subject to the Civil Service Retirement System until July 3, 1997, when he retired.

Dudar was suffering from renal disease in 1997 and chose to take an optional retirement that was then available to certain employees at his agency, based on age and length of service.

Following a kidney transplant, Dudar was reappointed to his former position as a re-employed annuitant. Just 10 days later, he filed for disability retirement to replace the optional retirement he had been granted, ending as of the date of his re-employment. Dudar believed the retirement-related benefits he eventually would receive would be greater if he retired on disability.

In an earlier appeal, the merit board disagreed with the Office of Personnel Management that the matter was moot because his retirement payment would be the same under either provision, and the board directed OPM to act on his application.

OPM subsequently denied the change, finding that Dudar had not established the existence of a disabling condition that would continue for at least one year from the date on which he filed his disability retirement application.

The board's administrative law judge reversed OPM's decision, finding that Dudar had been disabled during the period he was retired, and remanded the case back to the agency to determine whether he had recovered as of his re-employment date.

After OPM appealed to the full merit board, the board agreed with the administrative judge that Dudar's request to have his disability annuity terminated as of his re-employment date did not constitute an admission that he was not disabled as of the date on which he filed. Rather, his return to work at that time was inconsistent with his physician's advice, endangered his health and resulted in damage to his transplanted kidney, leading to further dialysis. Accordingly, the board concluded that Dudar had established his entitlement to a disability retirement annuity. Addressing Dudar's request that the annuity terminate as of the date of his re-employment, the board agreed with the administrative judge that remand was necessary because OPM had not addressed the matter.

Finally, the board noted Dudar's statement that his condition had deteriorated after he filed his disability retirement application and that his physician considers him unable to work. This may mean he is requesting that the annuity begin again later than his re-employment date, so the board directed that if OPM decides terminating the disability annuity is appropriate, it should determine whether Dudar wishes to have the annuity reinstated. If so, OPM must determine whether Dudar is entitled to receive a disability retirement annuity again.

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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