Opinion

Debora Davis v. Office of Personnel Management

Court: Merit Systems Protection Board
Filed: Jul 7, 2022
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 22.6%

holding that the Board must give deference to an administrative judge’s credibility determinations when they are based, explicitly or implicitly, on the observation of the demeanor of witnesses testifying at a hearing

How later courts described this case

holding that the Board must give deference to an administrative judge’s credibility determinations when they are based, explicitly or implicitly, on the observation of the demeanor of witnesses testifying at a hearing

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

DEBORA A. DAVIS, DOCKET NUMBER

Appellant, AT-844E-21-0191-I-1

OFFICE OF PERSONNEL DATE: July 7, 2022

MANAGEMENT,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Debora A. Davis, Archer, Florida, pro se.

Jo Bell, Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

FINAL ORDER

¶1 The agency has filed a petition for review of the initial decision, which

reversed the agency’s reconsideration decision finding that the appellant was not

entitled to disability retirement benefits under the Federal Employees’ Retirement

System (FERS). Generally, we grant petitions such as this one only in 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

following circumstances: 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

administrative 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. 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, 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 An appellant bears the burden of proving her entitlement to retirement

benefits by a preponderance of the evidence. 5 C.F.R. § 1201.56(b)(2)(ii). To be

eligible for disability retirement benefits under FERS, an applicant 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 medical condition is expected to continue for at least 1 year from

the date that the application for disability retirement benefi ts 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. 5 U.S.C. § 8451(a); 5 C.F.R. § 844.103(a); see

Thorne v. Office of Personnel Management, 105 M.S.P.R. 171, ¶ 5 (2007).

¶3 Here, the agency challenges the administrative judge’s conclusion that the

appellant satisfied the second criterion. Petition for Review (PFR) File, Tab 1

at 6-7. To this end, the agency seemingly contends that the administrative judge

erred in finding that the appellant had a disabling medical condition that was

incompatible with either useful and efficient service or retention in her position

because she failed to show that her pain levels could not be controlled. Id.

Specifically, the agency asserts that one of the appellant’s physicians “testified

that there are options available to the appellant that ha[ve] not been utilized,” to

include botox injections for her migraines and “other procedures that are

available to the appellant if her pain and discomfort” continue. Id. at 7. We find

these contentions unavailing.

¶4 An applicant for disability retirement benefits must establish the extent to

which her disability can or cannot be controlled. Smedley v. Office of Personnel

Management, 108 M.S.P.R. 31, ¶ 23 (2008). The Board has repeatedly held that

the voluntary refusal to accept facially reasonable treatment, standing alone, will

bar entitlement to disability retirement benefits. Id.; see Shanoff v. Office of

Personnel Management, 103 M.S.P.R. 549, ¶ 9 (2006) (explaining that, when an

employee is unable to render useful and efficient service because the employee

fails or refuses to follow or accept normal treatment, the employee’s disability

flows not from the disease or injury itself but from the refusal to take the

available corrective or ameliorative action).

¶5 Here, although one of the appellant’s treating physicians testified generally

as to botox “potentially” being a treatment option down the line for the

appellant’s migraines, he never indicated that he had recommended that she

undergo such injections. Initial Appeal File (IAF), Tab 26, Hearing Recording,

part 2 (testimony of the appellant’s physician). In fact, he explained that he did

not know whether they would be an effective method of treating her migraines.

Id. Moreover, he explained that botox injections would not address the

appellant’s neck and back pain. Id. Similarly, although the physician testified as

to the possibility of the appellant undergoing other procedures down the line, to

include additional surgical joint fusion(s), he did not indicate that he had of yet

recommended such procedures; indeed, he acknowledged that such procedures

may or may not be an effective means of reducing her pain levels. Id. In short,

the record was devoid of any indication that the appellant had refused any

recommended medical treatment. To the contrary, as set forth in the initial

decision, the record showed that she “sought reasonable treatment,” but, despite

her efforts, her conditions progressed to a point that treatment became ineffective

in relieving the pain that she experiences as a result of performing her job duties .

IAF, Tab 27, Initial Decision (ID) at 9. Indeed, the administrative judge found

that the medical evidence in the record supported the appellant’s testimony that

she has undergone “various treatments over the years to address her conditions,

including surgeries, traction, [transcutaneous electrical nerve stimulation], and

multiple accommodations and medications”; nonetheless, her pain has persisted

and is exacerbated by her job functions. ID at 8-9 & n.3; see Haebe v.

Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002) (holding that the

Board must give deference to an administrative judge’s credibility determinations

when they are based, explicitly or implicitly, on the observation of the demeanor

of witnesses testifying at a hearing). Thus, the agency’s contention does not

provide a basis to disturb the administrative judge’s conclusion that the appellant

satisfied the second criterion. ID at 9.

¶6 The agency also challenges the administrative judge’s conclusion that the

appellant satisfied the third criterion, i.e., that her disabling medical condition is

expected to continue for at least 1 year from the date on which she filed her

application for disability retirement. PFR File, Tab 1 at 6-7. The agency,

however, does not provide any specific argument in this regard. Here, the

administrative judge found credible the testifying physician, a pain management

specialist, who explained that “there was no current cure for the appellant’s

conditions,” which are ongoing and progressively worsening. ID at 9; see Haebe,

288 F.3d at 1301. We discern no basis to disturb this finding; indeed, medical

documentation in the record substantiated the physician’s testimony. E.g., IAF,

Tab 14 at 41-44. Thus, we agree with the administrative judge’s conclusion that

the appellant satisfied the third criterion.

¶7 Accordingly, we affirm the initial decision.

NOTICE OF APPEAL RIGHTS 2

You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By

statute, the nature of your claims determines the time limit for seeking such

review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).

Although we offer the following summary of available appeal rights, the Merit

Systems Protection Board does not provide legal advice on which option is most

appropriate for your situation and the rights described below do not represent a

statement of how courts will rule regarding which cases fall within their

jurisdiction. If you wish to seek review of this final decision, you should

immediately review the law applicable to your claims and carefully follow all

filing time limits and requirements. Failure to file within the applicable time

limit may result in the dismissal of your case by your chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

(1) Judicial review in general. As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit 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, 10, and 11.

If you are interested in securing pro bono representation for an appeal to

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of

discrimination. This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims—by filing a civil action with an appropriate U.S. district court (not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a

representative in this case, and your representative receives this decision before

you do, then you must file with the district court no later than 30 calendar days

after your representative receives this decision. If the action involves a claim of

discrimination based on race, color, religion, sex, national origin, or a disabling

condition, you may be entitled to representation by a court-appointed lawyer and

to waiver of any requirement of prepayment of fees, costs, or other security. See

42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respe ctive

websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012. This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in

section 2302(b) other than practices described in section 2302(b)(8), or

2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial

review either with the U.S. Court of Appeals for the Federal Circuit or any court

of appeals of competent jurisdiction. 3 The court of appeals must receive your

petition for review within 60 days of the date of issuance of this decision.

5 U.S.C. § 7703(b)(1)(B).

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the