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Federal Employees News Digest : June 3, 2013
June 3, 2013 Vol. 62, No. 44 6 Visit us on the Internet at www.FederalDaily.com MSPB braces for surge in complex retirement appeals Agrowing number of federal employees are deciding they have had enough. They're hitting the eject button, saying sayo- nara, retiring in droves, and things could get messy. During the first quarter of 2013, according to the Office of Personnel Management's monthly report, the agency received 52,744 combined new claims for the Civil Service Retirement System (CSRS) and Federal Employees Retirement System (FERS). That amount represented a 50.1 percent increase over the number of new claims OPM received during the first quarter of 2012 and a 66.9 percent increase over what OPM projected to receive during this period. So far in the second quarter, as of April, the number of claims received exceeded those for a year earlier by 4 percent, though they were at a level below projections. Further, OPM's 2012 Federal Employee Viewpoint Survey Results report shows that 9.7 percent of respondents said they planned to retire in one to three years. For years, the Merit Systems Protection Board, through its annual performance and accountability reports, has been warn- ing how the ever-increasing proportion of retirement-eligible federal employees could increase retirement-based appeals. In this year's Annual Performance Report and Plan, however, the MSPB sounded a more dire alarm. It cited OPM's uptick in retire- ment decisions, which are part of the agency's 18-month mission to eliminate a massive backlog of retirement claims, and growth in the proportion of FERS claims to all retirement claims. The report states: "More retirement claims and more complex FERS claims may result in a greater number of retirement appeals being filed with MSPB, and those appeals may be more complicated for MSPB to process." Since 1987, federal employees entering the federal civil service have been covered under FERS. Fiscal 2012 marked the first year when MSPB regional and field offices decided more FERS appeals than CSRS appeals. According to the board's Annual Report, out of the 891 retirement appeal decisions in fiscal 2012, 45 percent of them were CSRS decisions and 55 percent were FERS deci- sions. A decade earlier, 62 percent of retirement appeal decisions resulted from CSRS-based appeals and 38 percent were FERS- based appeals. While the lion's share of CSRS cases (82 percent) deal with legal issues (e.g., eligibility, benefit calculations), the majority of FERS cases (55 percent) involve disability issues. Disability-based retire- ment decisions are more complex for the board to adjudicate. Under FERS, federal employees may qualify for disability retire- ment benefits so long as they have at least 18 months of federal civilian service, suffer from an illness or injury expected to last for more than one year, and that illness or injury prevents them from performing useful and efficient service in their current position. The agency then must certify that it could not accommodate the disabled employee or place him or her in a similar position. As the MSPB found in Clarisa Hicks Henderson v. OPM (2012), disability retirement statutes and regulations for CSRS and FERS are "essentially identical." Medical evidence is crucial to any dis- ability retirement claim, and the MSPB had long operated under the assumption that "medical evidence itself must show that the medical condition affects specific job duties and requirements." This general rule has proven to be problematic for many federal employees who suffered from uncommon medical conditions that have unquestionably left them suffering but whose doctors could not say definitively what was wrong with them. Several MSPB decisions, such as Judith Bynum v. OPM (2001), have pointed to an exception to this general rule that found that the board could "link the medical evidence to the job duties where such evidence unambiguously and without contradiction indicates that the appellant cannot perform the duties or meet the requirements of her position." However, this exception has created questions concerning the deference afforded to doctors' diagnoses of medical conditions in determining whether a fed- eral employee is prevented from performing useful and efficient service. Fortunately, in Hicks Henderson, the MSPB cleared up this question by deciding new law. The board said that it has always been willing to consider "all pertinent evidence"---not just a single provider's ability to tie all that evidence together---when determining an applicant's entitlement to disability retirement. The controlling question is whether the employee's medical impairments preclude the employee from performing useful and efficient service. Federal employees who need help applying for CSRS or FERS retirement, disability retirement, or who have had their retire- ment applications denied, should immediately contact a federal employment law attorney. By Mathew B. Tully, Esq. Mathew B. Tully is the founding partner of Tully Rinckey PLLC. He concentrates his practice on representing military person- nel and federal employees and can be reached at email@example.com. To schedule a meeting with one of the firm's federal employment law attorneys, call 202-787-1900. The information in this column is not intended as legal advice.
May 27, 2013
June 10, 2013