Wednesday, May 6, 2015

The Burdensome Nature of Burden-Shifting When Seeking Disability Retirement

In the American system of jurisprudence, the party who asserts a claim generally has the burden of proving his or her entitlement to the benefit requested. Lindahl v. Office of Personnel Management, 470 U.S. 768, 791, on remand, 776 F.2d 276, 277 (Fed. Cir. 1985). This general rule also applies to federal employees who assert that they are entitled to disability retirement benefits. See Bruner v. Office of Personnel Management, 996 F.2d 290, 292 (Fed. Cir. 1993) (citations omitted). However, when it comes to actually providing evidence of entitlement to disability retirement, the law provides for a burden-shifting scheme that can be burdensome to navigate. The MSPB recently addressed this rather foggy scheme in Angel v. Office of Personnel Management, 2015 MSPB 33 (April 15, 2015).

The evidentiary confusion that is generated in disability retirement decisions results from the very nature of the disability retirement regulations. In order to qualify for disability retirements under the Federal Employees’ Retirement System (FERS), an employee must meet the following requirements:
  1. “(1) The individual must have completed at least 18 months of civilian service that is creditable under FERS, as defined in § 842.204 of this chapter;
  2. (2) 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 of retention in the position;
  3. (3) The disabling medical condition must be expected to continue for at least 1 year from the date the application for disability retirement is filed;
  4. (4) Accommodation of the disabling medical condition in the position must be unreasonable; and
  5. (5) The individual must not have declined an offer of reassignment to a vacant position.” 5 C.F.R. § 844.103(a).
Considering these criteria, it becomes apparent that “some involve evidence within the knowledge and control of the agency, and some within the purview of the employee. All are fact-dependent and subject to dispute.” Bruner, 996 F.2d at 293. In Chavez v. Office of Personnel Management, 6 M.S.P.R. 404 (1981), the Board, in setting the guidelines for disability appeals, “assumed that the party with the relevant evidence will come forward to produce it.” Bruner, 996 F.2d at 292. “‘[A]s to some material issues OPM or the employing agency may be in a better position than the applicant to adduce at least some of the relevant evidence, e.g. total creditable service or availability of other positions of the same grade or class in which the applicant might perform useful and efficient service.’” Id. (quoting Chavez, 6 M.S.P.B. at 352-53, 6 M.S.P.R. at 416).

In cases where the agency has already removed the person from service because of his or her condition, the person receives a “jumpstart” in the manner of an evidentiary presumption, which shifts to OPM the burden of proving that the presumption should not apply. For example, an employee’s removal “for physical inability to perform the essential functions of her position constitutes prima facie evidence that she is entitled to disability retirement benefits.” Harris v. Office of Personnel Management, 110 M.S.P.R. 249, 252 (2008) (citing Bruner, 996 F.2d at 294). What happens, though, when an agency has removed an employee based on an inability to maintain a regular work schedule, rather than on a physical inability to perform the duties of her position? Does the presumption still apply? According to the Board, the presumption will still apply if the specifications “indicat[ed] that the decision to remove was based on medical documentation suggesting that the appellant was disabled and unable to perform her duties.” McCurdy v. Office of Personnel Management, 96 M.S.P.R. 90, ¶ 7 (2004).

In Angel, OPM denied the employee’s disability retirement application, and the employee appealed to the MSPB. After a hearing, the administrative judge reversed OPM and held that the employee was entitled to disability retirement. OPM appealed and argued that the administrative judge should not have applied the Bruner presumption, because the appellant had not produced certain documentary evidence such as her SF-50, and the proposal or decision to remove her for her inability to perform the essential functions of her position. Angel, 2015 M.S.P.B 33, ¶ 6. The Board rejected OPM’s argument, stating that an appellant “is not required to produce any specific documentary evidence before the Bruner presumption applies.” Id. at ¶ 8. The Board found that the administrative judge appropriately analyzed the record, which showed that the appellant had been removed from service, and that there was no evidence which showed she “was separated from service for reasons other than the reduction in her schedule, which was attributable to her migraine headaches.” Id. at ¶ 9.

Once the Bruner presumption applies, OPM bears the burden to rebut the Bruner presumption by producing “evidence sufficient to support a finding that the appellant is not entitled to disability retirement benefits.” Harris, 110 M.S.P.R. at 252. “OPM can meet its 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.” Id. at 253 (citation omitted). So how does an agency meet its burden of production of showing that the employee has not produced sufficient medical evidence of her disabling condition? This requires a positive showing of a negative condition. In Angel, the Board rejected OPM’s argument that the appellant did not produce sufficient evidence of her disabling medical condition. Angel, 2015 M.S.P.B. 33, ¶ 12. The Board has held that the lack of “objective medical evidence cannot be used as the sole basis for denying an applicant disability retirement benefits.” Id. at ¶12 (citing Vanieken-Ryals v. Office of Personnel Management, 508 F.3d 1034, 1039-43 (Fed. Cir. 2007)). Rather, the Board may also consider testimony or written statements submitted by an appellant, including an appellant’s subjective evidence of pain that is supported by competent medical evidence. Id. In Angel, the Board considered appellant’s submission of medical records showing the onset, frequency, and treatment of her migraine headaches, the doctor’s limiting her to working 80% of her schedule, and the appellant’s own testimony that her migraine headaches prevented her from being able to perform the complex technical aspects of her position. Id. at ¶ 13. According to the Board, this was enough to warrant disability retirement.

If an agency successfully rebuts the Bruner presumption, this does not end the analysis, as a successful rebuttal is not dispositive of an appellant’s entitlement to disability benefits. Id. at ¶ 10. If an agency is able to meet its burden of production by demonstrating a lack of objective medical evidence, the burden of production then shifts again back to the appellant, who must rebut OPM’s assertion that he or she is not entitled to benefits. Harris, 110 M.S.P.R. at 253. An appellant may demonstrate eligibility for disability retirement benefits by showing that her medical condition either “(1) affected her ability to perform specific work requirements, prevented her from being regular in attendance, or caused her to act inappropriately; or (2) is inconsistent with working in general, in a particular line of work, or in a particular type of work setting.” Angel, 2015 M.S.P.B. 33, ¶ 13.

In Harris, the Board found that the appellant had not met her burden of showing she was entitled to receive disability retirement benefits, because her “medical evidence shows [only] that she has hypertension that is, at times, difficult to control and which can be exacerbated by stress. None of the medical evidence explains how the appellant’s hypertension prevents her from performing the duties of her position.” Harris, 110 M.S.P.R. at 253 (brackets added). In Angel, OPM apparently did not understand the appellant’s burden at this phase, and argued unsuccessfully that the appellant failed to establish her entitlement to disability benefits because she applied for full-time positions and held several part-time positions after she filed for disability retirement benefits. Clarifying the appellant’s burden of production, the Board stated that “the appellant was not required to show that her disability rendered her incapable of working all positions.” Id. at ¶ 13 (emphasis added). Rather, she just had to show that she could not render “useful and efficient service in her position and she has not declined a reasonable offer of reassignment.” Id. The Board found the appellant met this burden “by showing that her migraine headaches prevented her from performing the requirements of the position she held at the time of her application for disability retirement benefits.” Id.

After the burden of production has shifted back and forth three times between the appellant and OPM, the Board then considers the “totality of the evidence”–the evidence presented by both the appellant and OPM–in determining whether the appellant met his or her burden of persuasion of being entitled to disability retirement benefits by a preponderance of the evidence. Angel, 2015 M.S.P.B. 33, ¶ 10. This evidence may include “objective clinical findings, diagnoses and medical opinions, subjective evidence of pain and disability, evidence relating to the effect of the applicant’s condition on her ability to perform in the grade or class of position she last occupied, and evidence that the applicant was not qualified for reassignment to a vacant position at the same grade or level as the position she last occupied.” Harris, 110 M.S.P.R. at 253.

In federal disability retirement cases, keeping track of which party has the burden of production– and when it must produce–and the kind of evidence necessary to meet that burden, seems tantamount to a ping-pong match. Not keeping tabs on who is supposed to hit the ball can lead to a victory for the other side.

This blog post was written by Valerie Chastain.

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