                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     STEVEN P. PIRKKALA,                             DOCKET NUMBER
                   Appellant,                        AT-844E-12-0029-I-3

                  v.

     OFFICE OF PERSONNEL                             DATE: February 20, 2015
       MANAGEMENT,
                   Agency.



                THIS FINAL ORDER IS NO NPRECEDENTIAL 1

           Lawrence Berger, Esquire, Glen Cove, New York, for the appellant.

           Linnette Scott, Washington, D.C., for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                              Anne M. Wagner, Vice Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1        The Office of Personnel Management (OPM) has filed a petition for review
     of the initial decision, which reversed OPM’s reconsideration decision denying
     the appellant’s application for disability retirement benefits. The appellant has
     filed a cross-petition for review of the administrative judge’s finding that he was

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     not disabled by one of his medical conditions, post-traumatic stress disorder
     (PTSD). Generally, we grant petitions and cross-petitions only when: 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 neither the petitioner nor the
     cross-petitioner has not established any basis under section 1201.115 for granting
     review. Therefore, we DENY the petition for review and the cross-petition for
     review, and AFFIRM the initial decision, which is now the Board’s final
     decision. 5 C.F.R. § 1201.113(b).
¶2         The appellant filed an application for disability retirement under the Federal
     Employees’ Retirement System (FERS) from the GS-11 position of Correction
     Treatment Specialist at the Federal Correctional Institute in Miami, Florida, based
     on a torn labrum, 2 shoulder dislocation, and PTSD. MSPB Docket No. AT-844E-
     12-0029-I-1, Initial Appeal File (I-1 IAF), Tab 4. In a reconsideration decision,
     OPM denied the appellant’s request, finding that prior to filing his application the
     appellant had been removed from service due to a conduct issue, a positive drug
     test for marijuana. 3 Id., Subtab IIA.


     2
      The labrum is a type of cartilage found in the shoulder joint. See Johns Hopkins
     Sports Medicine Patient Guide (online).
     3
       The appellant also applied for Social Security disability benefits. I-1 IAF, Tab 4,
     Subtab IIB. The Social Security Administration granted the appellant’s application,
     based on his PTSD and other psychological conditions. I d.
                                                                                         3

¶3         The administrative judge found that the appellant’s removal for misconduct
     did not preclude his receipt of disability retirement benefits.        MSPB Docket
     No. AT-044E-12-0029-I-3, Initial Appeal File (I-3 IAF), Tab 37, Initial Decision
     (ID) at 4. She also found that he failed to show that he was disabled by his PTSD
     because his psychiatrist had cleared him for return to duty. ID at 5. However,
     she found that the appellant established through medical evidence and testimony
     presented at the hearing that his condition of torn labrum/shoulder dislocation,
     which had onset prior to his removal, was incompatible with his retention in his
     position. ID at 5-7. She found that the appellant’s condition precluded him from
     performing the law enforcement officer functions of the Correction Treatment
     Specialist position that required that he be physically able to assist in the event of
     a riot or other prisoner event. ID at 7.
     OPM’s petition for review.

¶4         In its petition for review, OPM asserts that the administrative judge erred in
     failing to consider the appellant’s removal for misconduct as a relevant factor that
     detracts from the appellant’s application for disability retirement.
¶5         Removal for misconduct does not preclude an individual’s receipt of
     disability retirement benefits if he can show that he was disabled from performing
     useful and efficient service in his position prior to the effective date of his
     removal.   Delceg v. Office of Personnel Management, 100 M.S.P.R. 467, ¶ 6
     (2005), disagreed with on other grounds by Gooden v. Office of Personnel
     Management, 471 F.3d 1275 (Fed. Cir. 2006); cf. Delgado v. Office of Personnel
     Management, 21 M.S.P.R. 453, 455 (1984) (an appellant may not be awarded
     disability retirement on the basis of a medical condition that disables him from
     performing the duties of a position from which he was separated for cause prior to
     the onset of the condition). However, an appellant’s application for disability
     retirement in the face of an impending removal for misconduct may cast doubt
     upon the veracity of his application. See Tan-Gatue v. Office of Personnel
                                                                                       4

     Management, 90 M.S.P.R. 116, ¶ 12 (2001), aff’d, 52 F. App’x 511 (Fed. Cir.
     2002).
¶6           OPM relies on Stevenson v. Office of Personnel Management, 103 M.S.P.R.
     481, ¶ 12 (2006), to argue that the appellant’s failure to apply for disability
     retirement until after being removed for misconduct is a relevant factor in this
     appeal and detracts from the force of his application for a disability retirement
     annuity. Appellant Stevenson, a GS-5 Forestry Technician, was removed based
     on two misconduct charges, one of which he admitted, namely, repeatedly taking
     large    cash advances on his       government credit card      for personal use.
     Stevenson, 103 M.S.P.R. 481, ¶ 2. Stevenson appealed his removal to the Board,
     and during the course of the removal appeal, asserted that he was unable to
     perform a significant portion of his job duties; that is, those duties involving
     walking for long periods of time at a high altitude on uneven ground and
     firefighting.   Id.   The parties subsequently entered into a written settlement
     agreement in which Stevenson withdrew his appeal and his employing agency
     cancelled the removal action for alleged misconduct, agreed to purge Stevenson’s
     personnel files of all documents related to it, and substituted a removal action for
     medical inability to perform the essential forest fire suppression duties of his
     position.    Id., ¶ 9. The settlement agreement was accepted into the record for
     enforcement in an initial decision that dismissed the appeal as settled and became
     the Board’s final decision. Id.
¶7           During the subsequent adjudication of Stevenson’s application for disability
     retirement benefits, the employing agency submitted to OPM both documents
     related to Stevenson’s removal for misconduct and documents drafted pursuant to
     the settlement agreement providing for removal for inability to perform.        The
     administrative judge in Stevenson found that the employing agency erred when it
     submitted evidence of the canceled removal action to OPM, and that the
     appropriate remedy was for the Board to disregard the documents regarding the
     canceled removal action. Relying on case law holding that OPM has the authority
                                                                                        5

     to disregard a personnel action taken pursuant to a settlement agreement to which
     OPM was not a party, when the personnel action was an evasive device designed
     to allow the appellant to qualify for retirement benefits for which he would
     otherwise have been ineligible, the Board held that the Board itself, in carrying
     out its statutory responsibility of reviewing an OPM final decision, may also look
     behind a settlement agreement to which OPM was not a party. Thus, the Board
     found that Stevenson’s failure to apply for disability retirement until after being
     removed for misconduct was a relevant factor in his disability retirement appeal
     that detracted from the force of his application for a disability retirement annuity.
     Stevenson, 103 M.S.P.R. 481, ¶ 12.
¶8        If Stevenson’s application for disability retirement had been adjudicated
     using only the evidence of his removal for inability to perform, in his disability
     retirement appeal he would have been entitled to the presumption announced by
     the Board in Bruner v. Office of Personnel Management, 996 F.2d 290, 294 (Fed.
     Cir. 1993). Under the Bruner presumption, an employee’s removal for physical
     inability to perform the essential functions of his position constitutes prima facie
     evidence that he is entitled to disability retirement; the burden of production then
     shifts to OPM to produce evidence sufficient to support a finding that the
     applicant is not entitled to disability retirement benefits; and if OPM produces
     such evidence, the applicant then must come forward with evidence to rebut
     OPM’s assertion that he is not entitled to benefits. Bruner, 996 F.2d at 294. The
     Board adjudicated Stevenson’s disability retirement appeal, relying on the
     medical evidence that he submitted without affording him the Bruner
     presumption.    Stevenson, 103 M.S.P.R. 481, ¶¶ 13-14.         It thus appears that
     Stevenson’s having been removed for misconduct was a relevant factor in his
     disability retirement appeal to the extent that he was deprived of the Bruner
     presumption.
¶9        Here, there was no settlement that replaced the appellant’s removal for
     misconduct with removal for inability to perform. As the Board did in Stevenson,
                                                                                         6

      the administrative judge properly adjudicated the appellant’s disability retirement
      appeal relying on the medical evidence of record, without reference to Bruner,
      consistent with both Stevenson and Delceg, 100 M.S.P.R. 467, ¶ 6.
¶10         OPM also asserts in its petition that the medical evidence did not establish
      that the appellant had a disabling condition at the time of his removal. In an
      appeal from an OPM decision on a voluntary disability retirement application, the
      appellant bears the burden of proof by preponderant evidence. Thorne v. Office
      of   Personnel   Management, 105       M.S.P.R.    171,   ¶ 5   (2007); 5     C.F.R.
      § 1201.56(a)(2). To be eligible for a disability retirement annuity under FERS,
      an employee must show the following: (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. Thorne, 105 M.S.P.R. 171,
      ¶ 5; see 5 U.S.C. § 8451(a); see also 5 C.F.R. § 844.103(a).
¶11         Here, it is undisputed that the appellant met disability retirement eligibility
      factors (1), (3), and (5). He completed at least 18 months of creditable service
      under FERS.      Also, the condition that he asserts is disabling is expected to
      continue for at least 1 year from the date that the application for disability
      retirement benefits was filed. The appellant began treatment for his torn labrum
      with surgery in 1995, I-1 IAF, Tab 4, Subtab IIB at 69, and his testimony is
      uncontradicted that his condition became totally disabling on July 30, 2008, when
      his shoulder came out of its socket, causing him severe pain, as he was moving
                                                                                           7

      some mattresses at the prison, id. at 46, 51, 65, 157. 4 After that incident, the
      appellant was placed on home duty status for a number of months. Id. at 51. A
      radiology report in 2010, more than a year after the appellant’s removal,
      confirmed that he still has “degenerative changes of the superior glanoid
      Labrum.” Id. at 67. Further, there is no evidence that he declined a reasonable
      offer of reassignment to a vacant position. Thus, at issue are factors (2), whether
      the disabling medical condition, a torn labrum and shoulder dislocation, is
      incompatible with either useful and efficient service or retention in the position of
      Correction Treatment Specialist inside of a federal prison, and (4), whether
      accommodation      of the disabling medical        condition   in that    position   is
      unreasonable. Where, as here, there is no deficiency in performance, attendance,
      or conduct, as evidenced by the effect of his medical condition, an appellant may
      show that the disabling medical condition is incompatible with either useful and
      efficient service or retention in the position by showing that the medical
      condition is inconsistent with working in general, in his particular line of work,
      or in his particular type of work setting.      See Rucker v. Office of Personnel
      Management, 117 M.S.P.R. 669, ¶ 10 (2012).
¶12         To determine whether the appellant’s disabling medical condition is
      inconsistent with working in his particular line of work, or in his particular type
      of work setting, i.e., disability retirement eligibility factor (2), the administrative
      judge quoted the appellant’s position description, noting especially the work
      environment, that provides:
            All staff in the correctional facility, regardless of their occupations,
            are expected to perform law enforcement functions. As a result, the
            incumbent is regularly subject to physical hazards and dangerous
            conditions such as assaults and hostage situations. Due to the
            potential for uncontrollable situations to occur in a correctional
            institution, the level of risk for hazardous and stressful working
            conditions is very high . . . . Daily stress and exposure to potentially
      4
       The appellant filed a claim with the Office of Workers’ Compensation Programs based
      on this injury. I-1 IAF, Tab 4, Subtab IIB at 78.
                                                                                        8

            dangerous situations such as physical attack are an inherent part of
            this position; consequently, it has been designated as a law
            enforcement position.
      I-1 IAF, Tab 4, Subtab IID at 39; ID at 3-4.
¶13         Further, the appellant’s treating physician gave his medical opinion that the
      appellant’s right shoulder recurrent instability made him unable to perform useful
      and efficient service. I-3 IAF, Tab 18. The administrative judge also found that
      accommodation was unreasonable, i.e., disability retirement eligibility factor (4),
      in light of the requirement that all personnel at the prison must be physically able
      to assist in the event of a riot or other prisoner event. ID at 7.
¶14         We note particularly the risk that the appellant’s shoulder could become
      dislocated in prison assaults and hostage situations, an occurrence that could
      result in harm to his coworkers and failure of the appellant to receive needed
      emergency treatment that could exacerbate a very hazardous and dangerous
      situation. The record shows that because the appellant’s shoulder dislocated on
      July 30, 2008, he had to be transported by a fire rescue unit to the hospital for
      treatment. I-1 IAF, Tab 4, Subtab IIB at 85. Under these circumstances, we find
      that the administrative judge properly found that the appellant could not meet the
      work environment requirements of his position, and thus his medical condition is
      inconsistent with working in his particular type of work setting. We likewise find
      that the administrative judge properly determined that the appellant met his
      burden to prove entitlement to disability retirement benefits.
      The appellant’s cross-petition for review.

¶15         In his cross-petition, the appellant contends that the administrative judge
      erred in finding that the appellant was not entitled to disability retirement on the
      basis of his PTSD. The administrative judge properly relied on the evidence of
      record from the appellant’s treating psychiatrist that the appellant could return to
      duty on March 16, 2008. Although, as the appellant notes in his cross-petition,
      the psychiatrist stated that the appellant could return with reasonable
                                                                                        9

      accommodation, she did not identify what the reasonable accommodation might
      be, and the psychiatrist also stated that the appellant’s “PTSD is under control.”
      I-1 IAF, Tab 4, Subtab IIB at 97. We therefore agree with the administrative
      judge that the tenor of the letter from the appellant’s psychiatrist shows that the
      appellant is not disabled by his PTSD.

                                           ORDER
¶16      We ORDER OPM to grant the appellant’s application for disability retirement
      benefits. OPM must complete this action no later than 20 days after the date of
      this decision.
¶17      We also ORDER OPM to tell the appellant promptly in writing when it
      believes it has fully carried out the Board’s Order and of the actions it took to
      carry out the Board’s Order. We ORDER the appellant to provide all necessary
      information OPM requests to help it carry out the Board’s Order. The appellant,
      if not notified, should ask OPM about its progress. See 5 C.F.R. § 1201.181(b).
¶18      No later than 30 days after OPM tells the appellant it has fully carried out the
      Board’s Order, the appellant may file a petition for enforcement with the office
      that issued the initial decision on this appeal if the appellant believes that OPM
      did not fully carry out the Board’s Order. The petition should contain specific
      reasons why the appellant believes OPM has not fully carried out the Board’s
      Order, and should include the dates and results of any communications with
      OPM. See 5 C.F.R. § 1201.182(a).

                       NOTICE TO THE APPELLANT REGARDING
                             YOUR RIGHT TO REQUEST
                            ATTORNEY FEES AND COSTS
            You may be entitled to be paid by the agency for your reasonable attorney
      fees and costs. To be paid, you must meet the requirements set out at Title 5 of
      the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
      regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If
                                                                                 10

you believe you meet these requirements, you must file a motion for attorney fees
WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.                          You
must file your attorney fees motion with the office that issued the initial decision
on your appeal.

                  NOTICE TO THE APPELLANT REGARDING
                     YOUR FURTHER REVIEW RIGHTS
     You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit. 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).
     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.
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     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.
