In an earlier blog post, I discussed the concept of a “coerced retirement”. You can view that post by clicking here.
In summary, a ” coerced retirement” is a retirement action, that would typically be voluntary, but for the coercive actions of an Agency. The MSPB only has jurisdiction over a coerced retirement in a handful of situations described in our earlier blog entry. One of those situations over which the MSPB has jurisdiction occurs when an Appellant alleges that his/her retirement was the result of a medical incapacity to make the decision whether or not to retire.
Generally speaking, to prove up a claim that an employee was medically incapacitated to make the decision to retire, that employee will need medical testimony to establish the nature of the condition, and how the condition incapacitated the employee. In nearly every instance, the smart Agency Counsel will produce a medical expert to testify how the employee’s medical condition did not medically incapacitate the employee in the making of the decision to retire.
The question for the MSPB Judge becomes how to evaluate or weigh the testimony of the “competing” experts. Early in March 2008, the Full MSPB issued a decision analyzing what type of medical evidence would be needed to prove such a claim. Adams v. United States Postal Service, 2008 MSPB 46 (March 5, 2008), MSPB Docket No. AT-0752-07-0473-I-1. This decision also provided some insight into how an MSPB judge should weigh medical testimony in an appeal of a constructive retirement. The board said that the Judge should weigh:
“…[W]hether the opinion was based on a medical examination, whether the opinion provided a reasoned explanation for its findings as distinct from mere conclusory assertions, the qualifications of the expert rendering the opinion, and the extent and duration of the expert’s familiarity with the treatment of the appellant.”
Basically, otherwise credible and well-reasoned testimony from the Appellant’s treating physician should “trump” the non-evaluating expert of the Agency.
You can read the full Adams decision on the MSPB website by clicking here.
No post on this website is legal advice, is meant to be legal advice, and certainly does not serve as a substitute for legal advice. Information is power, and we are providing this information to give you, the federal employee, with some power. This information is not widely or easily accessible to Federal Employees.
Eric Pines, a lawyer with the Law Offices of Eric L. Pines, PLLC, has handled “coerced retirement” appeals before the Merit Systems Protection Board. Mr. Pines says that these appeals present a very unique challenge for appellants: “The Appellant has to overcome a jurisdictional hurdle before getting to discovery. The Appellant then has to pay extra close attention in discovery to ensure that the Appellant has the documents and evidence necessary to successfully attack the Agency’s case. On top of that, there is almost no likelihood of settlement. Agencies rarely want to get involved in the intense amount of detail and coordination that a “coerced retirement” settlement agreement requires. “
It is best to consult with a lawyer familiar with Merit Systems Protection Board (MSPB) appeals to discuss the facts and law of your particular case, particularly in a coerced retirement or constructive action appeal. If you think that your Agency may have coerced you into retiring, contact the Law Offices of Eric L. Pines, PLLC, to schedule a telephone consultation.