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A disabled federal employee with renal disease is entitled to receive a disability retirement annuity even though he did not apply for one when he stopped working to have surgery, according to a Jan. 30 Merit Systems Protection Board decision.

When Lawrence Dudar, a federal employee enrolled in the Civil Service Retirement System, left his job in July 1997, he retired under the "optional retirement" provisions in Title 5, Section 8336 of the United States Code. He was qualified to retire under these provisions because of his age and the number of years he had worked.

Dudar, who was awaiting a kidney transplant, had his transplant a month later and returned to his former position in June 1998. Ten days after he returned, he filed an application for disability retirement to establish that he became disabled in June 1996 and changed his retirement plan from "optional" to "disability."

The Office of Personnel Management did not accept this application for disability retirement, citing Dudar's improved medical condition following his kidney transplant and concluding that he had not established that he had a disabling condition that would persist for at least one year following the date he filed his disability application, as Chapter 5, Section 831.1203(a)(3) of the Code of Federal Regulations requires.

But the Merit Systems Protection Board found that Dudar had established his right to a disability retirement annuity through medical documents indicating that he had returned to work in June 1998 against his doctor's advice and that his condition had since deteriorated.

Lawrence V. Dudar v. Office of Personnel Management, Merit Systems Protection Board (Docket # PH-831E-01-0087-I-1), Jan. 30, 2003

Passed Over

The Army reached a $132,706 settlement with a disabled veteran who alleged he was "unlawfully obstructed" from competing for an operations specialist position, the Office of Special Counsel announced Feb. 6.

As a 40 percent disabled veteran who received a 10-point veteran's preference during the competition for the operations specialist position, Gary Fowler was at the top of the list of eligible candidates for the job. But an Army employee advised Fowler, a 20-year Army veteran who injured his spinal cord in an explosion while he served in Vietnam, to withdraw his application for the position.

The Army employee allegedly told Fowler that he would not be selected for the position in "any circumstance." When Fowler did not withdraw his application, the Army sent a request to the Office of Personnel Management asking for permission not to consider him for the job because he was "not qualified."

OPM disagreed with this assessment and directed the Army to consider Fowler, but the Army disregarded this and rewrote the position announcement so that the language would exclude Fowler from applying. After posting the new announcement three months later, the Army hired another candidate.

After an investigation, the Office of Special Counsel concluded that the Army had unlawfully prevented Fowler from competing for the job, violating Title 5, Section 2302 of the United States Code. The Army, which did not admit wrongdoing, agreed to pay Fowler the equivalent of three years' salary and benefits for the position he did not receive.

Office of Special Counsel case, Feb. 6, 2003

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