Lambright v OPM (07/30/2010)A petition for review must be filed within 35 days after the date of issuance of the initial decision, or, if the appellant shows that she received the initial decision more than 5 days after it was issued, within 30 days after the date of receipt. With her petition for review, the appellant submits a motion to accept her late-filed petition. She asserts that her petition is untimely because she had no money to hire an attorney to assist her. She asserts that she therefore provided the papers for filing a petition for review to family and friends who knew people with a legal education and by the time the documents were returned to [her], the time to appeal had expired. The Board has held that an inability to afford legal counsel does not excuse an appellants failure to timely file a petition for review. Case dismissed.
Yashimoto v OPM (06/05/2008)The Board has repeatedly held that job-related stress resulting in physical or mental ailments that prevent an employee from performing the duties required in her position can warrant the granting of disability retirement. Thorne, 105 M.S.P.R. 171, ¶ 15; Kimble, 102 M.S.P.R. 604, ¶ 14; Bell v. Office of Personnel Management, 87 M.S.P.R. 1, ¶ 18 (2000); Marczewski v. Office of Personnel Management, 80 M.S.P.R. 343, ¶ 7 (1998); Pugh v. Office of Personnel Management, 38 M.S.P.R. 184, 188-89 (1988). The cause of the condition is not relevant in determining whether an employee is eligible for disability retirement. Marucci v. Office of Personnel Management, 89 M.S.P.R. 442, ¶ 9 (2001) (rejecting the notion that the appellant was ineligible for disability retirement because sexual harassment and working conditions, rather than duties, created the appellant’s disabling mental condition). Instead, the relevant issue is whether the condition prevents the employee from rendering useful and efficient service in her position. See id.; see also 5 U.S.C. § 8451(a); 5 C.F.R. § 844.103(a).
Smith v. OPM (06/14/2010) Judgment of the US Court of Appeals for the Federal Circuit dismissing an appeal from the Office of Personnel Management's (OPM) denial of an application for federal employee's disability retirement annuity benefits is affirmed. Even though the claimant had been found completely disabled from work by the SSA, that decision is not binding on finding of disability by the OPM. Additionally the claimant's own statements describing her disability were not supported by medical evidence that showed she was prevented from performing her assigned federal job.
Hubbard v MSPB (05/27/2010) Judgment of the Merit Systems Protection Board dismissing an appeal from the Office of Personnel Management's (OPM) denial of an application for federal employee's disability retirement annuity benefits is affirmed as petitioner's failure even to respond to an administrative judge's order directing her to "file evidence and argument demonstrating that the appeal was timely filed or that good cause exists for the delay" justified the administrative judge's dismissal of the appeal as untimely.
Cabanayan v. OPM (03/12/2010) The Board and OPM must consider all competent medical evidence, including post-retirement medical evidence, and may not reject such evidence solely because it is based on post-retirement examinations or observations..
Simpkins v. OPM (03/18/2010) The Board and OPM must consider an award of benefits by the DVA based on the same medical conditions as the appellant’s disability retirement application, although this evidence may be outweighed by other evidence.
Sachs v. OPM (06/08/2005) The appellant submitted documentation of a DVA Rating Decision dated February 15, 2005, finding that he was entitled to compensation benefits based on PTSD and major depressive disorder, which the DVA determined were 100 percent disabling conditions. We find here that, in determining entitlement to FERS disability retirement benefits, OPM and the Board must similarly consider an award or termination of benefits by DVA based on the same medical conditions as the appellant’s disability retirement application.
Maples v. OPM (10/13/09) "Maples was not “disabled” for purposes of disability retirement benefits is supported by substantial evidence. Although Maples did not receive the highest possible rating, her rating of “excellent,” combined with her satisfactory attendance record, supports the Board’s determination that there was no deficiency in Maples’ performance or attendance. Further, Maples did not provide, from the record that was before the Board, documentation that her cytomegalovirus condition is “incompatible with either useful and efficient service or retention in the position” of secretary."
Reilly v. OPM (07/15/09) A disability claimant's medical documentation which post-dates separation from Federal Service and relates backs to Federal Service may not be considered irrelevant by the OPM in evaluating and reviewing a Federal disability retirement application.
Vaniekan-Porter v. OPM (11/26/07) If a disability retirement applicant's treating doctor arrives at the medical opinion based upon "established diagnostic criteria" which are "not inconsistent with generally accepted professional standards", unless OPM can attack the credentials or veracity of the medical opinions, proper probative weight must be given both by OPM and by the Merit Systems Protection Board in reviewing, evaluating, and rendering a decision on a Federal disability retirement application.
Postell-Porter v. OPM (06/04/09) An agency’s action in separating an employee because of disability serves to shift to the government only the burden of production, requiring the government to come forward with sufficient evidence to rebut the presumption of disability. See Bruner, 996 F.2d at 294. The government can meet this burden of production by demonstrating a lack of objective medical evidence providing a reasoned explanation of how certain aspects of a particular condition render the employee unable to perform specific work requirements.
Torres v. OPM (04/01/09) Torres applied for disability retirement under the CSRS, claiming she was unable to sufficiently perform her duties as a Procurement Technician because she suffered from depression and anxiety. The OPM denied her application upon determining that she failed to show that the misconduct that led to her removal, her only performance deficiency, was caused by a medical condition. Affirmed.
Johnston v. OPM The statute governing disability retirement provides that benefits may be granted "only if the application is filed with the Office before the employee . . . is separated from the service or within 1 year thereafter." 5 U.S.C. § 8337(b)
McLaughlin v. OPM The time limitation on filing the application may be waived where the applicant was mentally incompetent during a statutorily defined time.
Licausi v. OPM The requirement that the employee seeking disability retirement prove that the medical condition in question prevents him or her from rendering efficient and useful service applies both to the employee's initial application for disability retirement as well as the employee's continuing right to benefits, the right to reinstatement of benefits after a finding of recovery, or the right to reinstatement of benefits after a restoration of earning capacity.
Townsend v. OPM The individual must, while employed in a position subject to FERS, have become disabled because of a medical condition, resulting in a deficiency in performance, conduct, or attendance, or if there is no such deficiency, the disabling medical condition must be incompatible with either useful and efficient service or retention in the position.
Lensing v. OPM This case, like many disability cases, turns mainly on the standard of review. Disability claims in general are very factual in nature, and Congress has given this court a very narrow scope of review over Board decisions regarding claims for disability benefits. In sum, while we find this to be a troubling case factually, there is no legal basis for us to intercede. We therefore are constrained to uphold the decision of the Board and, in turn, of OPM.
Kessler v. OPM An administrative judge is not required to enumerate the "essential elements" of an applicant's position and then correlate the psychiatric conditions to each of those elements.While there is evidence in the record to show that Kessler received treatment, ultimately unsuccessfully, for his drug abuse, the AJ did not find that Kessler's drug abuse was a medical condition that would allow Kessler to receive disability benefits.
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