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Tersago v. Office of Personnel Management

March 05, 1999


Before Rich, Rader, and Bryson, Circuit Judges.

The opinion of the court was delivered by: Per Curiam.

NOTE: Pursuant to Fed. Cir. R. 47.6, this Disposition is not citable as precedent. It is a public record. The Disposition will appear in tables published periodically.

The Merit Systems Protection Board (Board), No. NY-831E-97-0528-I-1, affirmed the Office of Personnel Management's (OPM's) denial of Joseph R. Tersago's application for disability retirement benefits under the Civil Service Retirement System (CSRS). Because Mr. Tersago has not demonstrated that the Board's decision was in error, this court affirms.


The Department of Labor, Office of Inspector General (OIG), employed Mr. Tersago as a Criminal Investigator. In 1986, Mr. Tersago injured his lower back while lifting a heavy bundle of papers. Mr. Tersago exacerbated his injury when he slipped and fell while at work in 1998. After the slip and fall accident, Mr. Tersago did not return to work and began collecting benefits under the Federal Employees Compensation Act.

Dr. Fischer, Mr. Tersago's physician, assessed and treated him from 1988 until 1991 for pain in his back and left leg. Dr. Fischer's assessment of Mr. Tersago's condition in 1991 stated that he was unable to sit and was limited to standing and walking for fifteen minutes at a time. Dr. Fischer recommended surgery to correct the lower back injury. Mr. Tersago refused surgery and discontinued all treatment for his condition after 1991.

Around the same time, Mr. Tersago enrolled in community college classes. He drove back and forth to school, carried a bookbag, and sat in class. In the succeeding 1992 and 1993 school years, Mr. Tersago enrolled in and passed several physical education classes including weight training, Tai Ji, and slimnastics.

In 1993, the New York Regional Inspector General for Investigations launched an investigation which produced photographs of Mr. Tersago driving long distances, carrying groceries and books, shoveling snow, and carrying out other tasks he was allegedly unable to perform. An employee relations specialist with the OIG telephoned Mr. Tersago in the spring of 1993 to ask if his physical condition had changed. Mr. Tersago reported that his activities were limited, that he was having a hard time walking or driving and that he would not be able to drive to work in New York City. OIG offered to send him to college to obtain new skills, offered him a position at an office close to his home and offered him flex-time and work-at-home options. Mr. Tersago refused, claiming that his condition would not allow him to work at all.

From 1993 to 1994, a second doctor examined Mr. Tersago for his alleged back and leg pain. The doctor concluded that Mr. Tersago could do sedentary work on a part-time basis and recommended surgery, which Mr. Tersago again refused. On October 26, 1995, a third doctor diagnosed Mr. Tersago concluding that he was unable to work even four hours per day at his job. Mr. Tersago, however, continued to take classes at the community college through spring of 1994.

On April 29, 1996, Mr. Tersago pleaded guilty to making false statements to obtain federal employees' compensation. Due to his criminal conviction, the Office of Worker's Compensation Programs ceased paying Mr. Tersago benefits in May of 1996. On May 3, 1996, Mr. Tersago submitted his resignation to the OIG.

Five months before Mr. Tersago's plea, he filed an application for disability retirement with OPM. In his application he stated that he could neither walk, sit, drive for prolonged periods, nor work at any full-time job due to his increasing back pain. In its initial decision, OPM concluded that the medical evidence submitted by Mr. Tersago did not show a medical condition sufficiently severe to prevent him from performing the essential duties of his position.

Shortly after this decision, a fourth physician treated Mr. Tersago with nitroglycerin for chest pain and hypertension. Further, a psychiatrist diagnosed Mr. Tersago as suffering from a Delusional and Depressive Disorder, Persecutory Type. The psychiatrist based his diagnosis on Mr. Tersago's reports that he was hearing voices that no one else could hear and seeing government inspectors spying on him even though the investigation had ended. In a July 1997 reconsideration decision, OPM considered the new medical evidence but again denied Mr. Tersago's application. The Board affirmed OPM's denial and Mr. Tersago appeals.


This Court has limited review of Board decisions. This court must affirm the Board's decision unless it is (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law; (2) obtained without procedure required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence. See 5 U.S.C. § 7703(c) (1994); Cleland v. Office of Personnel Management, 984 F.2d 1193, 1194 (Fed. Cir. 1993). In the context of OPM disability retirement determinations reviewed by the Board, the Supreme Court's decision in Lindahl v. Office of Personnel Management, 470 U.S. 768 (1985), further limits this court's review. This court may not review factual findings underlying the disability claim, but may only determine "whether there has been a substantial ...

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