The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
FREGENET B. CAMBRELEN, DOCKET NUMBER
Appellant, DE-844E-14-0016-I-1
v.
OFFICE OF PERSONNEL DATE: January 16, 2015
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL *
Fregenet B. Cambrelen, Aurora, Colorado, pro se.
Linnette Scott, 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) final decision denying
her disability retirement application under the Federal Employees’ Retirement
System (FERS). Generally, we grant petitions such as this one only when: the
*
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
¶2 The appellant was a GS-8 Contact Representative for the Department of the
Treasury, Internal Revenue Service. Initial Appeal File (IAF), Tab 1 at 1, Tab 6
at 97. She was employed by that agency from November 5, 2001, until her
resignation on February 17, 2012. IAF, Tab 6 at 90-93. She filed an application
for disability retirement, listing posttraumatic stress disorder (PTSD) as her
disabling condition. Id. at 43. On August 29, 2013, OPM issued a final decision
denying the appellant’s application on the basis that the appellant failed to show
that her condition was disabling. Id. at 7-9.
¶3 The appellant filed a Board appeal and requested a hearing. IAF, Tab 1 at
2. The appellant subsequently withdrew her hearing request, and the
administrative judge issued an initial decision affirming OPM’s final decision on
the written record. IAF, Tab 15, Tab 24, Initial Decision (ID) at 2, 9. The
administrative judge found that the appellant failed to prove that her PTSD was
incompatible with useful and efficient service or retention in the position because
she failed to show that she complied with recommended treatment that might have
helped the condition to be controlled. ID at 8-9.
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¶4 The appellant has filed a petition for review, arguing that the administrative
judge was careless and abused her discretion in various ways throughout the
course of the appeal. Petition for Review (PFR) File, Tab 1 at 4-7. The appellant
argues that her resignation was involuntary, id. at 5-7, and she disputes the
administrative judge’s finding that she was noncompliant with treatment so as to
preclude her disability retirement, id. at 6-7. OPM has filed a response to the
appellant’s petition for review, PFR File, Tab 3, and the appellant has filed a
reply to OPM’s response, PFR File, Tab 4.
The administrative judge did not commit harmful error by permitting the
appellant to withdraw her hearing request.
¶5 On review, the appellant alleges that OPM’s representative failed to appear
for the scheduled telephonic hearing. PFR File, Tab 1 at 4. She also alleges that
the administrative judge intended to reschedule the hearing even though the
appellant and her five witnesses had already taken time off of work or otherwise
rearranged their schedules to be in attendance as expected. Id. at 4-5. Rather
than ask her witnesses to inconvenience themselves further, the appellant took the
administrative judge’s suggestion to withdraw her hearing request and have the
witnesses submit written statements instead. Id. at 5; IAF, Tab 15. Despite this,
only three of the five witnesses were able to submit their statements before the
deadline. PFR File, Tab 1 at 5; IAF, Tabs 17, 19-20.
¶6 While the appellant’s frustration with this procedural matter is
understandable, we find that it provides no basis to disturb the initial decision.
An administrative judge has broad authority to govern the proceedings before her.
Boutin v. U.S. Postal Service, 115 M.S.P.R. 241, ¶ 8 (2010). Whether good cause
exists to postpone a hearing is determined by the unique circumstances of each
case and rests with the administrative judge’s sound discretion. Keay v. U.S.
Postal Service, 57 M.S.P.R. 331, 335 (1993). We find that the administrative
judge did not abuse her discretion in postponing the hearing when the agency’s
representative was, at the last minute, unable to attend due to a “family
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emergency.” IAF, Tab 15 at 1. In addition, the appellant has not explained what
further evidence she would have presented or how the outcome of the appeal
might have changed if she had submitted statements from all five witnesses or if
the matter had gone to a hearing. See Karapinka v. Department of Energy,
6 M.S.P.R. 124, 127 (1981) (an administrative judge’s procedural error is of no
legal consequence unless it is shown to have adversely affected a party’s
substantive rights). In this regard, we note that the appellant did not request an
extension of time to submit her remaining witness statements below, and she has
not provided the statements for the Board on review or described what further
information those statements would have contained.
The administrative judge’s conduct in the proceedings below does not evidence
bias or reflect a mistake of material fact.
¶7 The appellant raises various other complaints about the conduct of the
proceedings below, including that the administrative judge repeatedly referred to
her by the wrong name, referred to her as “he” rather than “she,” and referred to
the appellant’s sister as her brother. PFR File, Tab 1 at 4-6. However, we find
that these misstatements were not misstatements of material fact; they did not
affect the outcome of the appeal. See 5 C.F.R. § 1201.115(a)(1) (for the Board to
grant a petition for review, under 5 C.F.R. § 1201.115(a), the administrative
judge’s mistakes of fact must have been material to the outcome of the appeal).
¶8 The appellant also asserts that the administrative judge advised her at one
point that five other cases were receiving priority over hers and that it took 40
days after that for the administrative judge to issue her initial decision. PFR File,
Tab 1 at 2. The appellant, however, has not explained how the administrative
judge’s delay in issuing the decision prejudiced her substantive rights. See
Karapinka, 6 M.S.P.R. at 127.
¶9 The appellant also asserts that the administrative judge spoke to her in a
demeaning manner, including asking her the question, “I don’t think you are
faking it, are you?” PFR File, Tab 1 at 5. We do not find this question indicative
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of bias against the appellant. To the contrary, it appears to indicate that the
administrative judge believed that the appellant was suffering from PTSD as she
claimed. In making a claim of bias or prejudice against an administrative judge, a
party must overcome the presumption of honesty and integrity that accompanies
administrative adjudicators. Oliver v. Department of Transportation, 1 M.S.P.R.
382, 386 (1980). An administrative judge’s conduct during the course of a Board
proceeding warrants a new adjudication only if the administrative judge’s
comments or actions evidence “a deep-seated favoritism or antagonism that would
make fair judgment impossible.” Bieber v. Department of the Army, 287 F.3d
1358, 1362-63 (Fed. Cir. 2002) (quoting Liteky v. United States, 510 U.S. 540,
555 (1994)). We find that neither this question nor any of the other statements
and actions described above were sufficient to establish bias on the part of the
administrative judge.
The appellant has not established that she was “disabled” within the meaning of
5 U.S.C. § 8451(a)(1).
¶10 Under 5 C.F.R. § 1201.56(a)(2), an employee 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). To be eligible for a disability
retirement annuity under FERS, an employee must show the following: (1) she
completed at least 18 months of creditable civilian service; (2) while employed in
a position subject to FERS, she 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) she did not decline a reasonable offer of reassignment to a vacant position.
6
Thorne v. Office of Personnel Management, 105 M.S.P.R. 171, ¶ 5 (2007); see
5 U.S.C. § 8451(a); 5 C.F.R. § 844.103(a).
¶11 For purposes of FERS, an employee is considered “disabled” only if she is
found to be unable, because of disease or injury, to render useful and efficient
service in her position. 5 U.S.C. § 8451(a)(1)(B). As part of her burden to
establish that she is disabled because of a medical condition, the employee must
establish the extent to which her disability can or cannot be controlled.
Wilkey-Marzin v. Office of Personnel Management, 82 M.S.P.R. 200, ¶ 15 (1999).
If an employee is unable to render useful and efficient service because she fails or
refuses to follow or accept normal treatment, her disability flows not from the
disease or injury itself (as the statute requires) but from her voluntary failure or
refusal to take the available corrective or ameliorative action. Baker v. Office of
Personnel Management¸ 782 F.2d 993, 994 (Fed. Cir. 1986); Shanoff v. Office of
Personnel Management, 103 M.S.P.R. 549, ¶ 9 (2006).
¶12 In this case, the administrative judge found that the appellant failed to
produce any evidence that she complied with recommended treatment protocols
that might permit her medical conditions to be controlled, i.e., further evaluation
and routine follow-up care by a licensed mental health clinician and a full
psychiatric evaluation for the appropriateness of medication to treat her mental
health condition. ID at 8-9. We agree. The appellant submitted several pieces of
medical documentation, IAF, Tab 6 at 19-25, 50-53, Tab 21 at 3-6, but only three
of them refer to the appellant’s PTSD: a January 7, 2012 Family and Medical
Leave Act certification, IAF, Tab 6 at 50-53; a February 9, 2012 letter from a
licensed professional counselor, id. at 23; and a February 15, 2012 letter from her
primary care physician, id. at 21-22. The remaining medical documentation is not
relevant to the issues in this appeal. See Dunn v. Office of Personnel
Management, 60 M.S.P.R. 426, 433 (1994) (the Board will not consider medical
evidence pertaining to conditions that were not the subject of the disability
retirement application).
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¶13 The Family and Medical Leave Act certification was prepared by the
appellant’s primary care physician, who indicated that the onset of the PTSD was
approximately April 2011, that he had seen her several times for treatment,
prescribed her medication, and referred her to a psychologist for weekly
follow-up treatment. IAF, Tab 6 at 50-52. The letter from the licensed
professional counselor confirms the PTSD diagnosis but recommends that the
appellant seek treatment closer to her home because his office is “many miles
across town from [the appellant’s] living and working area.” Id. at 23. He
referred the appellant to therapists and psychiatrists closer to her home and
recommended a “full psychiatric evaluation for the appropriateness of medication
trials.” Id. The subsequent letter from the appellant’s primary care physician
refers her to a psychiatrist, id. at 21, who apparently saw the appellant at least
once and conducted a mental status examination, id. at 24-25.
¶14 We agree with the administrative judge that, despite these recommendations
and referrals, there is no evidence to show that the appellant pursued the
recommended course of treatment in any respect. The appellant’s primary care
physician noted that she declined antidepressant medication, and the appellant
herself admitted as much. Id. at 12, 21. Although the appellant explains that she
declined Wellbutrin because it made her ill and she has concerns about its safety,
there is no evidence that the appellant sought advice from her psychiatrist about
these matters or about the possibility of trying an alternative medication or
treatment. Id. at 12; PFR File, Tab 1 at 6. Nor is there any evidence that the
appellant engaged a psychologist or other therapist for recurrent psychotherapy
sessions as recommended. The appellant asserted below that she had been treated
for her PTSD “for over a year” by a licensed professional counselor, but the only
evidence she provided of having seen this counselor at all was a May 7, 2008 note
indicating the appellant’s incapacitation from work for depression and advising
that she would “continue treatment until symptoms have abated.” IAF, Tab 6 at
12, 19. This does not constitute evidence that the appellant was receiving routine
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psychotherapy for her claimed disabling condition at the time of her resignation
nearly 4 years later. The appellant asserts on review that she followed all of the
recommended treatments while she had the ability to do so and that she continued
to receive treatment within her means once she lost her insurance. PFR File, Tab
1 at 6-7. This non-specific assertion lacks any documentary support and is
insufficient to establish that the appellant pursued the recommended treatment for
her PTSD symptoms. For these reasons, we agree with the administrative judge
that the appellant has not established her entitlement to a disability retirement
annuity. ID at 9.
The administrative judge made no material error in her application of the law.
¶15 The appellant argues that some of the cases that the administrative judge
applied were irrelevant to her situation. PFR File, Tab 1 at 6. First, she argues
that Chavez, 6 M.S.P.R. 404, applies only to voluntary disability retirement
applications and that her resignation was involuntary. PFR File, Tab 1 at 5-7.
However, we find that the proposition for which the administrative judge cited
Chavez, i.e., that the appellant bears the burden of establishing her entitlement to
a disability retirement annuity, nevertheless applies to this case. ID at 3.
Specifically, notwithstanding the manner of her separation, the appellant has
voluntarily sought disability retirement benefits by filing an application with
OPM. See 5 C.F.R. § 1201.56(a)(2) (the appellant has the burden of proof in an
appeal from a final OPM decision involving retirement benefits if the appellant
filed the application). This is in contrast to situations in which an agency
separates an employee from service and files a disability retirement application
on her behalf. See 5 C.F.R. § 844.202.
¶16 As for Cummins v. Office of Personnel Management, 117 M.S.P.R. 261
(2012), we find that this case stands for the proposition for which the
administrative judge cited it and is germane to the appeal for the reasons
explained by the administrative judge, see ID at 9. The administrative judge’s
citation to Karapinka, 6 M.S.P.R. at 127, appears to be misplaced because that
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case does not stand for the proposition contained in the ensuing parenthetical, see
ID at 9. Nevertheless, this apparent citation error is immaterial to the outcome of
the appeal because the proposition in the parenthetical is supported by other case
law. See Bernard v. Office of Personnel Management, 37 M.S.P.R. 486, 491
(1988) (the administrative judge properly considered the appellant’s failure to
accept noninvasive therapeutic treatment in determining that the appellant had not
established that he was disabled for useful and efficient service).
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit. 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).
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
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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.