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Tersago v. Office of Personnel Management

U.S. Court of Appeals, Federal Circuit

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 departure from important procedural rights, a misconstruction of the governing legislation, or some like error going to the heart of the administrative determination." Id. at 791 (internal quotation omitted).


To be entitled to disability retirement, an employee must establish by a preponderance of the evidence (1) employment for a minimum of five years in a position under the CSRS; (2) disability, because of disease or injury, to render useful and efficient service; (3) the likelihood that the condition will continue for at least one year; and (4) disqualification for reassignment to a vacant position which is in the agency at the same grade or level and in which the employee can render useful and efficient service. See 5 U.S.C. § 8337(a) (1994); Hupp v. Office of Personnel Management, 64 M.S.P.R. 273, 277 (1994). The Board found that Mr. Tersago did meet the statutory disability retirement requirements of having completed five years of federal service prior to resignation and was diagnosed as suffering from a medical condition at resignation. The Board also found, however, that Mr. Tersago did not establish that this medical condition prevented him from rendering useful and efficient service in his position. Mr. Tersago argues that the Board based its Conclusion on evidence of his behavior and condition in the years prior to his resignation and not on his condition at the time of resignation as required. See Moran v. Office of Personnel Management, 72 M.S.P.R. 138, 141 (1996).

While the Board did review Mr. Tersago's prior medical history and his violations of medical restrictions, the review was done to establish Mr. Tersago's character and credibility. This court discerns no error in reliance on evidence of Mr. Tersago's fraudulent behavior, based on his ability to participate in activities deemed not possible by his doctors in the past, to establish his abilities under his doctors' assessments at the time of resignation. Thus, this court affirms the Board's finding that Mr. Tersago did not show by a preponderance of the evidence that he could not render useful and efficient service in the position he held when he applied for retirement.

Mr. Tersago also argues the Board erred in finding that the agency made adequate efforts to accommodate his disability. Specifically, he asserts that the Board incorrectly applied regulations pertaining to accommodation under federal workers' compensation instead of regulations relating to federal disability retirement. Because this court affirms the Board's holding that Mr. Tersago could render useful and efficient service in his job, this court need not reach Mr. Tersago's accommodation argument.

Finally, Mr. Tersago argues that it was arbitrary and capricious for the Board to give little weight to the assessments of the five physicians and that the Board's decision was in retaliation for Mr. Tersago's past violation. Lindahl, however, precludes this court from reviewing factual findings based on the physicians' assessments. As to the allegation of retaliation, Mr. Tersago points this court to nothing in the record evincing any bad faith on the part of the Board. As discussed above, the Board committed no error, let alone error "going to the heart of the administrative determination," when it gave the physicians' assessments little weight in light of evidence establishing Mr. Tersago's lack of credibility.

For the reasons set forth herein, this court affirms the Board's decision.


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