                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     JOSEPH J. RASTOVSKI,                            DOCKET NUMBER
                    Appellant,                       CH-844E-13-0473-I-1

                  v.

     OFFICE OF PERSONNEL                             DATE: August 26, 2014
       MANAGEMENT,
                   Agency.



                THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Jonathan C. Goldman, Esquire, Chicago, Illinois, for the appellant.

           Matthew D. MacIsaac, 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) reconsideration decision
     denying his application for Federal Employees’ Retirement System (FERS)
     disability retirement. Generally, we grant petitions such as this one only when:

     1
        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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 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. We MODIFY
     the initial decision to correct the administrative judge’s errors in the initial
     decision that the appellant raised on review, but we conclude that none of these
     errors warrants a different outcome. Except as expressly modified by this Final
     Order, we AFFIRM the initial decision.

                        DISCUSSION OF ARGUMENTS ON REVIEW
¶2        The appellant, an Electrical Worker at a Naval Station, filed for disability
     retirement in June 2012 based on numerous medical conditions, including, but not
     limited to, “ligament, muscle, tendon, trunk, external, multiple sites–lower back,
     hip, leg,” although he did not specify any condition affecting those tissues or
     areas. Initial Appeal File (IAF), Tab 5 at 34-121. OPM denied the appellant’s
     application   in    initial   and   reconsideration   decisions.    See   id.   at   6-8
     (reconsideration decision), 27-31 (initial decision). The appellant filed a Board
     appeal.   IAF, Tab 1.         A telephonic hearing was held.       Hearing CD.       The
     administrative judge issued an initial decision, affirming OPM’s reconsideration
     decision. IAF, Tab 11, Initial Decision (ID). The appellant filed a petition for
     review. Petition for Review (PFR) File, Tab 1. OPM did not file a response.
                                                                                           3

¶3         On   review,   the    appellant   contends   that   the   administrative    judge:
     (1) misstated the appellant’s testimony regarding a May 5, 2012 meeting;
     (2) improperly disregarded a letter from the appellant’s second-level supervisor;
     (3) erred in finding that the appellant’s conditions did not preclude him from
     performing his job; (4) misapplied the law regarding accommodation; and
     (5) failed to consider the appellant’s inability to pay for treatment.           For the
     following reasons, we affirm the initial decision as modified herein.
¶4         An employee must show the following to be eligible for a disability
     retirement annuity under FERS: (1) he completed at least 18 months of creditable
     civilian service; (2) while employed in a position subject to FERS, he 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) he did not decline a reasonable offer of reassignment to
     a    vacant     position.      Christopherson       v.     Office     of    Personnel
     Management, 119 M.S.P.R. 635, ¶ 6 (2013) (citing 5 U.S.C. § 8451(a); Thorne v.
     Office of Personnel Management, 105 M.S.P.R. 171, ¶ 5 (2007); 5 C.F.R.
     § 844.103(a)). The appellant 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).
¶5         It was undisputed that the appellant had more than 18 months of creditable
     FERS service. Moreover, there is no evidence that he declined a reasonable offer
     of reassignment. In the initial decision, the administrative judge found that the
     appellant presented no medical evidence to support his claim that he was disabled
     for the numerous medical conditions. ID at 4. Other than twice mentioning a
                                                                                      4

     “disabling” shoulder condition, PFR File, Tab 1 at 4, 19 n.5, the appellant does
     not make any argument on review to challenge the administrative judge’s
     conclusion in this regard, and we affirm the initial decision concerning these
     conditions.
¶6        The appellant’s entitlement to the FERS disability retirement annuity based
     on his back condition, which we understand to be his reference to “ligament,
     muscle, tendon, trunk, external, multiple sites – lower back, hip, leg,” IAF, Tab 5
     at 34, depends on whether he met his burden to prove that: (1) this condition
     rendered him unable to perform useful and efficient service in his position;
     (2) the disabling condition lasted for more than 1 year from the date that he filed
     his disability application; and (3) an accommodation of the condition was
     unreasonable.
¶7        The initial decision reflects the administrative judge’s consideration of the
     record evidence related to his back condition, including the appellant’s position
     description, medical and other documentary evidence, the appellant’s testimony
     regarding his disability and pain, and the testimony of Burt Schell, M.D., an
     orthopedic surgeon who treated the appellant.       ID at 3-10.     Based on the
     administrative judge’s consideration of this evidence, she found that the appellant
     failed to establish his entitlement to a FERS disability retirement annuity. In
     pertinent part, she found that he did not provide sufficient medical documentation
     to show that his condition prevented him from performing useful and efficient
     service in the Electrical Worker position. See ID at 9-10. We have considered
     the appellant’s arguments on review.
¶8        Regarding the appellant’s argument that the administrative judge erred in
     finding that his condition did not preclude him from performing his job as an
     Electrical Worker, we note that the position description states that the incumbent
     must be able to “walk, stoop, squat, kneel, climb[,] and work from ladders,
     scaffolding[,] or platforms” and will “occasionally be required to lift up to 30
     pounds.” IAF, Tab 5 at 41-44 (emphasis added). The May 14, 2012 note written
                                                                                       5

     by Dr. Schell stated that the appellant could not lift more than five pounds, and he
     could not bend or stoop, but it did not impose any restrictions on pushing/pulling
     and it stated that he could walk or stand “as tolerated.” Id. at 17. In response to
     a question during his June 2013 testimony regarding whether the appellant was
     precluded from performing the duties of an Electrical Worker, Dr. Schell stated
     only that the appellant’s duties would cause “ongoing aggravation” of his pain,
     but he did not state or imply that the appellant’s back condition was or is
     disabling. See Hearing CD. We also have considered the appellant’s testimony,
     in which he stated, on the morning of the hearing, that his pain level was at an 8
     out of 10 and that he believed that his condition prevented him from performing
     the    duties    of    the    Electrical    Worker      position.        Id.;   see
     Christopherson, 119 M.S.P.R. 635, ¶ 13 (noting that an employee’s subjective
     evidence of disability is entitled to consideration and weight in a disability
     retirement case when it is supported by competent medical evidence). We note,
     however, that the appellant’s most recent medical documentation, dated April
     2013, did not impose any restrictions or limitations on his activity. See IAF, Tab
     6, Exhibit C. Based on our review of the record, we agree with the administrative
     judge that the appellant has not demonstrated that his back condition was
     disabling.
¶9         We also have considered the appellant’s contention that the administrative
     judge improperly disregarded the statement of the appellant’s second-level
     supervisor, which stated that the appellant resigned because of his “ongoing
     medical condition.”   PFR File, Tab 1 at 15-16; see IAF, Tab 8 (second-level
     supervisor’s statement).     In the initial decision, the administrative judge
     explained that she did not credit the second-level supervisor’s statement because
     it was inconsistent with other evidence in the record. ID at 5-6 (citing Hillen v.
     Department of the Army, 35 M.S.P.R. 453, 458 (1987)). Indeed, the second-level
     supervisor’s statement is inconsistent with the June 8, 2012 Supervisor’s
     Statement and the appellant’s resignation pursuant to a settlement agreement that
                                                                                              6

      resolved the agency’s removal action based on his alleged failure to maintain a
      condition of employment. Compare IAF, Tab 8, with IAF, Tab 5 at 36-37 (stating
      that the appellant stopped coming to work for “lack of [a] driver’s license [which
      was] required for job position” 2), and IAF, Tab 6, Exhibit B (October 2012
      settlement agreement); IAF, Tab 5 at 11 (the appellant’s resignation Standard
      Form 50). Moreover, the second-level supervisor’s statement was not made under
      penalty of perjury, and it was written approximately 1 year after the appellant
      resigned from the agency. For these reasons, we agree with the administrative
      judge’s decision not to credit the second-level supervisor’s statement.
¶10         We modify the initial decision to correct certain errors made by the
      administrative judge in the initial decision. For instance, the appellant correctly
      notes that the administrative judge erred when she stated that the appellant
      “testified” that his supervisor told him on May 5, 2012, that he should not report
      for duty until he resolved the problem with his driver’s license. PFR File, Tab 1
      at 13-15; see ID at 5.     Rather, the appellant testified that he was told by his
      supervisor not to report for duty but that he should call in to see if there was any
      work to be done.      See Hearing CD.       The administrative judge’s error in this
      regard does not warrant a different outcome because she correctly stated
      elsewhere in the initial decision that the appellant testified that his supervisor
      “told him to go home until they had work for him.” See ID at 4-5.
¶11         The appellant contends on review that the administrative judge’s error in
      this regard is “substantial” because she improperly viewed the appellant’s


      2
        We note that the Supervisor’s Statement appears to contain a discrepancy. The
      appellant’s supervisor stated therein that the appellant was returned to a “permanent
      job” on March 28, 2012. See IAF, Tab 5 at 37. It is unclear what the supervisor means
      by the term “permanent job” in this context, but the record reflects that the appellant’s
      doctors placed restrictions on his activity after this date. See, e.g., id. at 17 (May 14,
      2012 note, which imposed lifting/carrying and bending/stooping restrictions, and
      permitted walking/standing “as tolerated”), 96 (April 19, 2012 note, which stated that
      the appellant was “working only light duty”). We need not resolve this discrepancy in
      order to render a decision in this matter.
                                                                                           7

      resignation as a means to resolve the pending dispute regarding the driver’s
      license, and her “misconception” of the record “led her to believe that the
      [a]ppellant had retired in order to resolve the issue with his driver’s license, when
      in reality, the situation was the other way around.” PFR File, Tab 1 at 14 (citing
      ID at 5-6). Based on our review of the record, including the terms of the parties’
      settlement agreement, supra ¶ 9, we discern no error with the administrative
      judge’s finding that the appellant resigned to settle a removal action for cause,
      see ID at 6.
¶12           To the extent that the administrative judge stated in the initial decision that
      the appellant has not shown that his condition(s) prevented him from being
      assigned to another position, ID at 9, the appellant correctly notes that such a
      burden should not be placed on a disability retirement applicant, PFR File, Tab 1
      at 19-20 (citing Craig v. Office of Personnel Management, 92 M.S.P.R. 449, ¶ 15
      (2002)). We therefore modify the initial decision in this regard.
¶13           We have also considered the appellant’s contention that the administrative
      judge failed to consider the appellant’s inability to pay for treatment. PFR File,
      Tab 1 at 21-22. The administrative judge noted in the initial decision that the
      appellant did not follow Dr. Schell’s treatment plan because he did not have the
      epidural steroid injection or physical therapy, and she also found that the
      appellant failed to establish that his condition could not be treated. See ID at
      7-10.     The administrative judge did not specifically mention the appellant’s
      testimony that he could no longer afford such treatment because he did not have
      insurance. See Hearing CD. The appellant properly notes on review that the
      Board will not find that an individual has refused treatment where the evidence
      shows he cannot afford it. PFR File, Tab 1 at 21-22 (citing Confer v. Office of
      Personnel Management, 111 M.S.P.R. 419, ¶ 22 (2009)).                    Even if the
                                                                                            8

      administrative judge erred in this regard, 3 it is an adjudicatory error that is not
      prejudicial to the appellant’s substantive rights and provides no basis for reversal
      of the initial decision. Panter v. Department of the Air Force, 22 M.S.P.R. 281,
      282 (1984). For the reasons discussed above and in the initial decision, we are
      not persuaded that the appellant’s back condition rendered him unable to perform
      useful and efficient service in the Electrical Worker position.
¶14         In light of our disposition, we need not address the appellant’s argument
      regarding the administrative judge’s analysis of the accommodation issue. See
      PFR File, Tab 1 at 19-21.

                        NOTICE TO THE APPELLANT REGARDING
                           YOUR FURTHER REVIEW RIGHTS
            The initial decision, as supplemented by this Final Order, constitutes the
      Board's final decision in this matter. 5 C.F.R. § 1201.113. You have the right to
      request the United States Court of Appeals for the Federal Circuit to review this
      final decision.   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).

      3
        Dr. Schell testified that an epidural injection would not be a permanent solution. See
      Hearing CD. Moreover, the April 8, 2013 medication documentation does not include a
      recommendation for either an epidural injection or physical therapy. See IAF, Tab 6,
      Exhibit C.
                                                                                  9

     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
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.
