The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOSEPH J. RASTOVSKI, DOCKET NUMBER
Appellant, CH-844E-13-0473-I-1
v.
OFFICE OF PERSONNEL DATE: August 26, 2014
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Jonathan C. Goldman, Esquire, Chicago, Illinois, for the appellant.
Matthew D. MacIsaac, Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed the Office of Personnel Management’s (OPM’s) reconsideration decision
denying his application for Federal Employees’ Retirement System (FERS)
disability retirement. Generally, we grant petitions such as this one only when:
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
the initial decision contains erroneous findings of material fact; the initial
decision is based on an erroneous interpretation of statute or regulation or the
erroneous application of the law to the facts of the case; the judge’s rulings
during either the course of the appeal or the initial decision were not consistent
with required procedures or involved an abuse of discretion, and the resulting
error affected the outcome of the case; or new and material evidence or legal
argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. See Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, and based on the following points and authorities, we conclude that the
petitioner has not established any basis under section 1201.115 for granting the
petition for review. Therefore, we DENY the petition for review. We MODIFY
the initial decision to correct the administrative judge’s errors in the initial
decision that the appellant raised on review, but we conclude that none of these
errors warrants a different outcome. Except as expressly modified by this Final
Order, we AFFIRM the initial decision.
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 The appellant, an Electrical Worker at a Naval Station, filed for disability
retirement in June 2012 based on numerous medical conditions, including, but not
limited to, “ligament, muscle, tendon, trunk, external, multiple sites–lower back,
hip, leg,” although he did not specify any condition affecting those tissues or
areas. Initial Appeal File (IAF), Tab 5 at 34-121. OPM denied the appellant’s
application in initial and reconsideration decisions. See id. at 6-8
(reconsideration decision), 27-31 (initial decision). The appellant filed a Board
appeal. IAF, Tab 1. A telephonic hearing was held. Hearing CD. The
administrative judge issued an initial decision, affirming OPM’s reconsideration
decision. IAF, Tab 11, Initial Decision (ID). The appellant filed a petition for
review. Petition for Review (PFR) File, Tab 1. OPM did not file a response.
3
¶3 On review, the appellant contends that the administrative judge:
(1) misstated the appellant’s testimony regarding a May 5, 2012 meeting;
(2) improperly disregarded a letter from the appellant’s second-level supervisor;
(3) erred in finding that the appellant’s conditions did not preclude him from
performing his job; (4) misapplied the law regarding accommodation; and
(5) failed to consider the appellant’s inability to pay for treatment. For the
following reasons, we affirm the initial decision as modified herein.
¶4 An employee must show the following to be eligible for a disability
retirement annuity under FERS: (1) he completed at least 18 months of creditable
civilian service; (2) while employed in a position subject to FERS, he became
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 is incompatible with either useful and efficient service or retention in
the position; (3) the disabling condition is expected to continue for at least 1 year
from the date that the application for disability retirement benefits was filed;
(4) accommodation of the disabling medical condition in the position held must
be unreasonable; and (5) he did not decline a reasonable offer of reassignment to
a vacant position. Christopherson v. Office of Personnel
Management, 119 M.S.P.R. 635, ¶ 6 (2013) (citing 5 U.S.C. § 8451(a); Thorne v.
Office of Personnel Management, 105 M.S.P.R. 171, ¶ 5 (2007); 5 C.F.R.
§ 844.103(a)). The appellant bears the burden of persuasion by a preponderance
of the evidence in an appeal from OPM’s decision on a voluntary disability
retirement application. Chavez v. Office of Personnel Management, 6 M.S.P.R.
404, 417 (1981).
¶5 It was undisputed that the appellant had more than 18 months of creditable
FERS service. Moreover, there is no evidence that he declined a reasonable offer
of reassignment. In the initial decision, the administrative judge found that the
appellant presented no medical evidence to support his claim that he was disabled
for the numerous medical conditions. ID at 4. Other than twice mentioning a
4
“disabling” shoulder condition, PFR File, Tab 1 at 4, 19 n.5, the appellant does
not make any argument on review to challenge the administrative judge’s
conclusion in this regard, and we affirm the initial decision concerning these
conditions.
¶6 The appellant’s entitlement to the FERS disability retirement annuity based
on his back condition, which we understand to be his reference to “ligament,
muscle, tendon, trunk, external, multiple sites – lower back, hip, leg,” IAF, Tab 5
at 34, depends on whether he met his burden to prove that: (1) this condition
rendered him unable to perform useful and efficient service in his position;
(2) the disabling condition lasted for more than 1 year from the date that he filed
his disability application; and (3) an accommodation of the condition was
unreasonable.
¶7 The initial decision reflects the administrative judge’s consideration of the
record evidence related to his back condition, including the appellant’s position
description, medical and other documentary evidence, the appellant’s testimony
regarding his disability and pain, and the testimony of Burt Schell, M.D., an
orthopedic surgeon who treated the appellant. ID at 3-10. Based on the
administrative judge’s consideration of this evidence, she found that the appellant
failed to establish his entitlement to a FERS disability retirement annuity. In
pertinent part, she found that he did not provide sufficient medical documentation
to show that his condition prevented him from performing useful and efficient
service in the Electrical Worker position. See ID at 9-10. We have considered
the appellant’s arguments on review.
¶8 Regarding the appellant’s argument that the administrative judge erred in
finding that his condition did not preclude him from performing his job as an
Electrical Worker, we note that the position description states that the incumbent
must be able to “walk, stoop, squat, kneel, climb[,] and work from ladders,
scaffolding[,] or platforms” and will “occasionally be required to lift up to 30
pounds.” IAF, Tab 5 at 41-44 (emphasis added). The May 14, 2012 note written
5
by Dr. Schell stated that the appellant could not lift more than five pounds, and he
could not bend or stoop, but it did not impose any restrictions on pushing/pulling
and it stated that he could walk or stand “as tolerated.” Id. at 17. In response to
a question during his June 2013 testimony regarding whether the appellant was
precluded from performing the duties of an Electrical Worker, Dr. Schell stated
only that the appellant’s duties would cause “ongoing aggravation” of his pain,
but he did not state or imply that the appellant’s back condition was or is
disabling. See Hearing CD. We also have considered the appellant’s testimony,
in which he stated, on the morning of the hearing, that his pain level was at an 8
out of 10 and that he believed that his condition prevented him from performing
the duties of the Electrical Worker position. Id.; see
Christopherson, 119 M.S.P.R. 635, ¶ 13 (noting that an employee’s subjective
evidence of disability is entitled to consideration and weight in a disability
retirement case when it is supported by competent medical evidence). We note,
however, that the appellant’s most recent medical documentation, dated April
2013, did not impose any restrictions or limitations on his activity. See IAF, Tab
6, Exhibit C. Based on our review of the record, we agree with the administrative
judge that the appellant has not demonstrated that his back condition was
disabling.
¶9 We also have considered the appellant’s contention that the administrative
judge improperly disregarded the statement of the appellant’s second-level
supervisor, which stated that the appellant resigned because of his “ongoing
medical condition.” PFR File, Tab 1 at 15-16; see IAF, Tab 8 (second-level
supervisor’s statement). In the initial decision, the administrative judge
explained that she did not credit the second-level supervisor’s statement because
it was inconsistent with other evidence in the record. ID at 5-6 (citing Hillen v.
Department of the Army, 35 M.S.P.R. 453, 458 (1987)). Indeed, the second-level
supervisor’s statement is inconsistent with the June 8, 2012 Supervisor’s
Statement and the appellant’s resignation pursuant to a settlement agreement that
6
resolved the agency’s removal action based on his alleged failure to maintain a
condition of employment. Compare IAF, Tab 8, with IAF, Tab 5 at 36-37 (stating
that the appellant stopped coming to work for “lack of [a] driver’s license [which
was] required for job position” 2), and IAF, Tab 6, Exhibit B (October 2012
settlement agreement); IAF, Tab 5 at 11 (the appellant’s resignation Standard
Form 50). Moreover, the second-level supervisor’s statement was not made under
penalty of perjury, and it was written approximately 1 year after the appellant
resigned from the agency. For these reasons, we agree with the administrative
judge’s decision not to credit the second-level supervisor’s statement.
¶10 We modify the initial decision to correct certain errors made by the
administrative judge in the initial decision. For instance, the appellant correctly
notes that the administrative judge erred when she stated that the appellant
“testified” that his supervisor told him on May 5, 2012, that he should not report
for duty until he resolved the problem with his driver’s license. PFR File, Tab 1
at 13-15; see ID at 5. Rather, the appellant testified that he was told by his
supervisor not to report for duty but that he should call in to see if there was any
work to be done. See Hearing CD. The administrative judge’s error in this
regard does not warrant a different outcome because she correctly stated
elsewhere in the initial decision that the appellant testified that his supervisor
“told him to go home until they had work for him.” See ID at 4-5.
¶11 The appellant contends on review that the administrative judge’s error in
this regard is “substantial” because she improperly viewed the appellant’s
2
We note that the Supervisor’s Statement appears to contain a discrepancy. The
appellant’s supervisor stated therein that the appellant was returned to a “permanent
job” on March 28, 2012. See IAF, Tab 5 at 37. It is unclear what the supervisor means
by the term “permanent job” in this context, but the record reflects that the appellant’s
doctors placed restrictions on his activity after this date. See, e.g., id. at 17 (May 14,
2012 note, which imposed lifting/carrying and bending/stooping restrictions, and
permitted walking/standing “as tolerated”), 96 (April 19, 2012 note, which stated that
the appellant was “working only light duty”). We need not resolve this discrepancy in
order to render a decision in this matter.
7
resignation as a means to resolve the pending dispute regarding the driver’s
license, and her “misconception” of the record “led her to believe that the
[a]ppellant had retired in order to resolve the issue with his driver’s license, when
in reality, the situation was the other way around.” PFR File, Tab 1 at 14 (citing
ID at 5-6). Based on our review of the record, including the terms of the parties’
settlement agreement, supra ¶ 9, we discern no error with the administrative
judge’s finding that the appellant resigned to settle a removal action for cause,
see ID at 6.
¶12 To the extent that the administrative judge stated in the initial decision that
the appellant has not shown that his condition(s) prevented him from being
assigned to another position, ID at 9, the appellant correctly notes that such a
burden should not be placed on a disability retirement applicant, PFR File, Tab 1
at 19-20 (citing Craig v. Office of Personnel Management, 92 M.S.P.R. 449, ¶ 15
(2002)). We therefore modify the initial decision in this regard.
¶13 We have also considered the appellant’s contention that the administrative
judge failed to consider the appellant’s inability to pay for treatment. PFR File,
Tab 1 at 21-22. The administrative judge noted in the initial decision that the
appellant did not follow Dr. Schell’s treatment plan because he did not have the
epidural steroid injection or physical therapy, and she also found that the
appellant failed to establish that his condition could not be treated. See ID at
7-10. The administrative judge did not specifically mention the appellant’s
testimony that he could no longer afford such treatment because he did not have
insurance. See Hearing CD. The appellant properly notes on review that the
Board will not find that an individual has refused treatment where the evidence
shows he cannot afford it. PFR File, Tab 1 at 21-22 (citing Confer v. Office of
Personnel Management, 111 M.S.P.R. 419, ¶ 22 (2009)). Even if the
8
administrative judge erred in this regard, 3 it is an adjudicatory error that is not
prejudicial to the appellant’s substantive rights and provides no basis for reversal
of the initial decision. Panter v. Department of the Air Force, 22 M.S.P.R. 281,
282 (1984). For the reasons discussed above and in the initial decision, we are
not persuaded that the appellant’s back condition rendered him unable to perform
useful and efficient service in the Electrical Worker position.
¶14 In light of our disposition, we need not address the appellant’s argument
regarding the administrative judge’s analysis of the accommodation issue. See
PFR File, Tab 1 at 19-21.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
The initial decision, as supplemented by this Final Order, constitutes the
Board's final decision in this matter. 5 C.F.R. § 1201.113. You have the right to
request the United States Court of Appeals for the Federal Circuit to review this
final decision. You must submit your request to the court at the following
address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
3
Dr. Schell testified that an epidural injection would not be a permanent solution. See
Hearing CD. Moreover, the April 8, 2013 medication documentation does not include a
recommendation for either an epidural injection or physical therapy. See IAF, Tab 6,
Exhibit C.
9
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information is available at the court's website, www.cafc.uscourts.gov.
Of particular relevance is the court's "Guide for Pro Se Petitioners and
Appellants," which is contained within the court's Rules of Practice, and Forms 5,
6, and 11.
If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
Protection Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.