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Bruner v. Office of Personnel Management

Decided: June 14, 1993.

LARRY L. BRUNER, PETITIONER,
v.
OFFICE OF PERSONNEL MANAGEMENT, RESPONDENT.



Appealed from: Merit Systems Protection Board

Before Rich, Circuit Judge, Bennett, Senior Circuit Judge, and Newman, Circuit Judge.

Newman

NEWMAN, Circuit Judge.

Larry L. Bruner appeals the decision of the Merit Systems Protection Board, Docket No. PH831E920167I-1, denying his application for a disability annuity under the Civil Service Retirement Act. We vacate the decision of the Board and remand for redetermination of the claim in accordance with correct procedural burdens.

Discussion

Mr. Bruner was employed as a nursing assistant at the Veterans Administration Medical Center in Butler, Pennsylvania, starting in March, 1983. During his employment Mr. Bruner suffered at least one injury to his back resulting in chronic back pain and an inability to perform his job. He accepted a voluntary downgrade to a position of nursing assistant-escort, which required less physical effort than his previous position. His back pain persisted, and he eventually entered leave without pay status and applied for a disability retirement annuity under the Civil Service Retirement Act.

During this period, Mr. Bruner was terminated from employment on the ground that he was physically unable to perform his job and that it was not possible to place him in any other position. Subsequently, his application for disability retirement was rejected by the Office of Personnel Management. Mr. Bruner appealed the denial of disability retirement to the Merit Systems Protection Board. The Board sustained OPM's action, and this appeal followed.

A

This court is without authority to review the substantive merits of disability determinations, or the factual underpinnings of such determinations. Lindahl v. Office of Personnel Management, 470 U.S. 768, 791, 84 L. Ed. 2d 674, 105 S. Ct. 1620 on remand, 776 F.2d 276, 277 (Fed. Cir. 1985). However, it is our obligation to assure that the correct legal and procedural standards are applied. Id.

Mr. Bruner argues that as a matter of law the agency's determination that he is physically unable to perform the duties of his job qualifies him for disability benefits. In Lindahl this court recognized, but did not reach, the question of the relationship between an employee's termination for physical inability to do the job, and entitlement to a disability annuity:

We are disturbed by the evident tension between (1) a removal for physical inability to do the job and (2) a subsequent denial to the same employee of disability retirement. We expressly leave open, for a case in which the issue is properly before us, the resolution of problems inherent in the relationship between the two actions.

Lindahl, 776 F.2d at 280. The question was not answered in that case because the employee had appealed only the disability determination and not the termination of employment, and the court believed that it was unable to review both of these actions for possible conflict between them. We deem it unlikely that such a case of conflicting appeals will ever arise for judicial resolution, because of the fatally inconsistent positions and proofs that would be required of the petitioner. However, the "disturbing" question continues to arise, as in the case at bar.

Despite the facial inconsistency between the decision of the Veterans Administration that Mr. Bruner is too disabled to work, and the decision of the Office of Personnel Management that he is not entitled to a disability annuity, it may be that these rulings are not inconsistent in his case, when the correct standards are applied to each determination. See Piccone v. United States, 186 Ct. Cl. 752, 407 F.2d 866, 872 (Ct. Cl. 1969) ("There is therefore the possibility that a person can be too disabled to continue work, but not disabled enough to qualify for disability retirement.") Thus we decline to hold, as a matter of law, that the agency's action in separating Mr. Bruner on grounds of disability establishes his entitlement to a disability annuity. To this extent, Mr. Bruner's argument must be rejected.

However, the agency's action in separating Mr. Bruner from employment, based on its decision that Mr. Bruner is too disabled to work, is not ...


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