UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
99 M.S.P.R. 521
THOMAS J. SACHS, DOCKET NUMBER
Appellant, CH-844E-04-0087-I-1
v.
OFFICE OF PERSONNEL DATE: June 8, 2005
MANAGEMENT,
Agency.
(CSA 8 210 255)
Raymond K. Schultz, Esquire, National Association of Government Employees, Belleville, Illinois, for the appellant.
Evelyn K. Payne, Washington, D.C., for the agency.
BEFORE
Neil A. G. McPhie, Chairman
Barbara J. Sapin, Member
OPINION AND ORDER
¶1 The appellant petitions for review of the initial decision that affirmed the reconsideration decision of the Office of Personnel Management (OPM) denying his application for disability retirement under the Federal Employees’ Retirement System (FERS). For the reasons discussed below, we find that the petition does not meet the criteria for review set forth at 5 C.F.R. § 1201.115, and we therefore DENY it. However, we REOPEN this appeal on our own motion under 5 C.F.R. § 1201.118, VACATE the initial decision, and REMAND the case to the Central Regional Office for further adjudication consistent with this Opinion and Order.
Document #: 118979 v 1
BACKGROUND
¶2 The appellant, a WG-9 Engineering Equipment Operator with the Department of the Navy (the agency), Navy Public Works Center in Great Lakes, Illinois, applied for a FERS disability retirement on or about April 7, 2003. Initial Appeal File (IAF), Tab 3, OPM File, Subtab II-D at 2-3, 96-99, Subtab IIE at 7-9; IAF, Vol. III, April 20, 2004 Hearing Tape (HT) 1-A (testimony of the appellant). In his Statement of Disability, the appellant asserted that he was unable to perform the essential duties of his position because of injuries to his left shoulder, post traumatic stress disorder (PTSD), high blood pressure, and dermatitis. OPM File, Subtab II-D at 1. To accommodate the appellant’s medical restrictions due to his shoulder injuries, the agency offered him a permanent position as a WG-9 Shop Material Controller (General) at the Navy Public Works Center on May 7, 2003. Id. at 101-08. The appellant accepted that position, but he never reported for duty, as he was on leave related to his PTSD from April 2003 until he retired, based on his age and years of service, effective July 31, 2003, for the stated reason that he “[c]an not work for Public Works anymore due to high stress and PTSD and advice from doctor.” Id. at 96, 109, 143; HT 1-A (testimony of the appellant).
¶3 OPM denied the appellant’s application for disability retirement, finding that the agency had accommodated the appellant’s shoulder injuries by offering him a position meeting his medical restrictions and that the evidence did not establish that his shoulder injuries and PTSD rendered him unable to provide useful and efficient service in his position. OPM File, Subtab II-C at 2-3. The appellant submitted additional evidence to OPM concerning his PTSD, but, on reconsideration, OPM concluded that its initial decision was correct. Id., Subtabs II-A, II-B.
¶4 The appellant subsequently filed a timely appeal with the Board and requested a hearing. IAF, Tab 1. On appeal, the appellant asserted that he was only claiming entitlement to disability retirement based on his PTSD from his military service in Vietnam in 1965-66 and 1969-70 that was exacerbated by the events of September 11, 2001. HT 1-A (testimony of the appellant). The appellant claimed that, due to his PTSD, he is unable to work in a military environment, such as the Navy Public Works Center. HT 1-A (testimony of the appellant); IAF, Tab 9 at 2-3, Ex. A; OPM File, Subtab II-D at 7-10. After a hearing, the administrative judge issued a May 28, 2004 initial decision affirming OPM’s reconsideration decision. IAF, Tab 12. The administrative judge found that the appellant failed to present sufficient medical evidence showing that he was unable, due to disease or injury, to render useful and efficient service as a Shop Material Controller. Id. at 6.
¶5 In his petition for review, the appellant claims that the administrative judge erroneously denied his requests to call two witnesses and incorrectly weighed the evidence concerning his PTSD, and he requests that the Board consider additional evidence that was not submitted below. Petition for Review File (PFRF), Tab 1. Specifically, the appellant submits a letter, dated April 15, 2004, from the Department of Veterans Affairs (DVA) stating that he was entitled to service-connected compensation benefits based on PTSD and major depressive disorder, which the DVA found were 50 percent disabling effective May 27, 2003. Id., Ex.
B. In addition, the appellant submits a letter, dated June 12, 2004, purportedly
from the appellant’s psychologist, stating that:
It is this examiner’s recommendation that [the appellant] needs to find employment [t]hat is not related to military installation [sic]. His PTSD is of a chronic nature and is currently stable. Triggers of his military experience will tend to be exerbated [sic] by exposare [sic] to a military [e]nvironment. [The appellant] need[s] to follow his routines and physicians [sic] recommendations.
Id., Ex. C.
¶6 OPM has filed a response opposing the petition for review. PFRF, Tab 3.
OPM asserts that the administrative judge did not commit any error of law or regulation that affected the outcome and the additional evidence submitted by the appellant is not “new and material.” Id. at 2-5.
After the close of the record on review, the appellant submitted a DVA Rating Decision dated February 15, 2005, and a letter dated February 16, 2005, from the Disabled American Veterans National Service Office, indicating that, after the close of the record on review, the DVA determined that the appellant’s PTSD and major depressive disorder were “100 percent disabling effective May 27, 2003,” and increased the appellant’s compensation benefits. PFRF, Tab 2, Tab 5, Tab 7 at 8. OPM has not submitted any response to the appellant’s submissions filed after the close of the record on review.
ANALYSIS
The appellant’s petition for review does not meet the criteria for review under 5 C.F.R. § 1201.115.
¶7 On petition for review, the appellant requests that the Board consider new evidence obtained after the close of the record below. PFRF, Tab 1 at 4-5, Exs. B, C. The Board will not consider evidence submitted for the first time with the petition for review absent a showing that it was unavailable before the record was closed despite the party’s due diligence. 5 C.F.R. § 1201.115(d)(1); Avansino v.
U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980). To constitute new evidence, the information contained in the documents, not just the documents themselves, must have been unavailable despite due diligence when the record closed. Grassell v. Department of Transportation, 40 M.S.P.R. 554, 564 (1989). The appellant has failed to show that the information contained in the April 15, 2004 DVA letter concerning DVA’s award of compensation benefits was previously unavailable despite due diligence. PFRF, Tab 1 at 4, Ex. B. The appellant had received notice of the DVA award by the time of the prehearing conference below, and there is no indication in the record that he attempted to offer evidence of the award below, requested a continuance to submit such evidence, or requested that the administrative judge reopen the record to consider this evidence prior to the May 28, 2004 issuance of the initial decision. IAF, Tab 11 at 3; HT 1-A. The appellant has also failed to show that the June 12, 2004 letter from his psychologist is based on any information that was unavailable prior to the close of the record below or explained why he could not have obtained this opinion from his psychologist prior to the close of the record below. PFRF, Tab 1 at 5, Ex. C; see Salaz v. Office of Personnel Management, 91 M.S.P.R. 300, ¶ 8 (2002); Grassell, 40 M.S.P.R. at 564. Thus, these documents do not constitute new evidence under 5 C.F.R. § 1201.115(d)(1). See Grassell, 40 M.S.P.R. at 564; Avansino, 3 M.S.P.R. at 214.
¶8 The appellant claims that the administrative judge erred by disallowing his requests for the testimony of two witnesses, union representative Aubrey Biggs and Liz Hanna. PFRF, Tab 1 at 3; IAF, Tab 9. The administrative judge denied these witnesses at the prehearing conference, finding that their testimony would be irrelevant. IAF, Tab 11 at 3. The administrative judge informed the appellant that he could, nevertheless, arrange for their presence at the hearing as potential rebuttal witnesses. Id. The record of the hearing does not reflect that the appellant objected to the administrative judge’s prehearing witness rulings or requested these witnesses as rebuttal witnesses. HT 1-A&B. Thus, the appellant has waived any objection to the administrative judge’s witness rulings. See Tarpley v. U.S. Postal Service, 37 M.S.P.R. 579, 581 (1988) (failure to object at the hearing to the administrative judge’s witness rulings made during the prehearing conference precluded the appellant from objecting to the administrative judge’s witness rulings on petition for review).
¶9 We do not reach the appellant’s argument that the administrative judge incorrectly concluded that his PTSD did not render him unable to perform useful and efficient service in his position, PFRF, Tab 1 at 4-5, because, for the reasons set forth below, we vacate the initial decision and remand for further adjudication.
The appeal must be remanded for consideration of the February 15, 2005 DVA Rating Decision.
¶10 After the close of the record on review, 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, effective May 27, 2003, or prior to his July 31, 2003 separation. PFRF, Tabs 5,
7. Because the DVA decision was not issued until after the close of the record on review, it could not be considered by either OPM or the administrative judge. PFRF, Tab 2.
¶11 In Trevan v. Office of Personnel Management, 69 F.3d 520 (Fed. Cir. 1995), our reviewing court held that “OPM and the Board must consider an award of Social Security disability benefits, and any underlying medical data provided to OPM by the Social Security Administration or the employee, along with any other evidence of disability, in determining entitlement to FERS benefits.” Id. at 526 (emphasis added). Although the holding in Trevan was based on the court’s finding of an express Congressional intent to coordinate FERS and Social Security benefits, id., the Board has determined that an award or a termination of Office of Workers’ Compensation Programs (OWCP) benefits, and any underlying medical data provided to OPM by OWCP or the employee, are “other evidence of disability,” as contemplated by Trevan, that must be considered by OPM and the Board in determining entitlement to FERS disability retirement benefits. See Suter v. Office of Personnel Management, 88 M.S.P.R. 80, ¶ 12 (2001); see also Harpole v. Office of Personnel Management, 98 M.S.P.R. 232, ¶ 14 & n.6 (2005) (recognizing that, in disability retirement cases, the Board has “frequently accepted as new evidence medical reports that were developed in concurrent proceedings conducted in other fora and unavailable to the appellant when the record closed”). 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, but may find that this evidence is outweighed by other evidence. See Trevan, 69 F.3d at 526; Suter, 88
M.S.P.R. 80, ¶ 12.
¶12 In this case, the February 15, 2005 DVA Rating Decision postdates the close of the record on review and thus was not readily available before the record closed. See 5 C.F.R. § 1201.114(i). As neither OPM nor the Board has considered the DVA decision, remand to the administrative judge for reconsideration is appropriate. See McCurdy v. Office of Personnel Management, 96 M.S.P.R. 90, ¶ 9 (2004); Gardner v. Office of Personnel Management, 91
M.S.P.R. 391, ¶ 7 (2002).
On remand, the administrative judge shall consider the appellant’s Engineering Equipment Operator position as the relevant position in determining the appellant’s entitlement to disability retirement.
¶13 To be entitled to disability retirement under 5 U.S.C. § 8451(a), an employee must show that he is unable, because of disease or injury, to render useful and efficient service in his position and is not qualified for reassignment to a vacant position which is in the agency at the same grade or level and in which he would be able to render useful and efficient service. The relevant position for determining whether an appellant is entitled to disability retirement is the position to which he was last officially assigned before filing his application for disability retirement. Ancheta v. Office of Personnel Management, 92 M.S.P.R. 640, ¶¶ 5, 15 (2002); Norvell v. Office of Personnel Management, 79 M.S.P.R. 350, ¶ 4 (1998).
¶14 Here, at the time of the appellant’s disability retirement application, he was officially assigned as an Engineering Equipment Operator at the Navy Public Works Center in Great Lakes, Illinois. OPM File, Subtab II-D at 3, 96-99; HT 1A (testimony of the appellant). Although OPM’s reconsideration decision is not explicit as to the position it considered in determining the appellant’s entitlement to disability retirement, OPM’s initial decision properly considered the Engineering Equipment Operator position as the appellant’s position of record at the time of his disability retirement application. OPM File, Subtabs II-A, II-C at
2. In the initial decision, the administrative judge mistakenly considered whether the appellant was able to perform the functions of the Shop Material Controller position, which was not offered to the appellant until after he applied for disability retirement. IAF, Tab 12 at 6; OPM File, Subtab II-D at 96, 101-09, Subtab II-E at 7-8; HT 1-A (testimony of the appellant). On remand, the administrative judge shall consider the Engineering Equipment Operator position as the relevant position in determining the appellant’s entitlement to disability retirement. See Ancheta, 92 M.S.P.R. 640, ¶ 15; Norvell, 79 M.S.P.R. 350, ¶ 4.
ORDER
¶15 Accordingly, we vacate the initial decision and remand this appeal to the Central Regional Office to afford the parties the opportunity to submit evidence and argument, including a supplemental hearing, if requested, on the effect of DVA’s February 15, 2005 Rating Decision on the appellant’s FERS disability retirement application, and any relevant medical evidence that was not previously available. After considering any additional evidence and argument as appropriate, see Licausi v. Office of Personnel Management, 350 F.3d 1359, 1363-65 (Fed. Cir. 2003), the administrative judge shall issue a new initial decision consistent with this Opinion and Order.
FOR THE BOARD: ______________________________ Bentley M. Roberts, Jr. Clerk of the Board