ALJ Rules Medical Inability to Perform Removal Was Fitting

By Dan Gephart, September 10, 2024

Quick facts:

• A Navy shipfitter was injured on the job. He broke several bones, had internal bleeding, and later developed PTSD.
• Years later, the agency and employee went through a good faith interactive process to find a reasonable accommodation.
• A Merit Systems Protection Board administrative law judge upheld the agency’s decision to remove the employee for medical inability to perform.

Some cases we review offer fact patterns that include outlandish, even ridiculous, behavior by an employee. Other cases reveal an agency blatantly failing to follow the basic tenets of the law.

Denny v. Navy, SF-0752-24-0291-I-1 (May 29, 2024)(ID) is neither of the above. This case involves an appellant whose injury made it impossible for him to perform his job and an agency that followed the right steps to address the situation. Unfortunately, it was not a win-win situation in the end. However, Denny allows us an opportunity to review how to handle the reasonable accommodation process and medical inability to perform removals.

It all started because of an improperly installed hatch on a ship. The appellant, a shipfitter on a temporary assignment in Japan, stepped onto the hatch, which collapsed inward. He fell, suffering internal bleeding and several broken and fractured bones. The spotter, a coworker who was with the appellant, had a panic attack and could not help. The appellant was lucky to live through this accident.

The appellant was initially treated in Japan. Upon return to the United States, he was diagnosed with a lumbar contusion, left hip contusion, right index finger avulsion fracture PIP joint, right great toe avulsion fracture based proximal phalanx, right wrist scaphoid fracture status post-ORIF, pulmonary contusion, and splenic subcapsular hematoma. After a psychological evaluation and counseling, the appellant was diagnosed with post-traumatic stress disorder resulting from his work injury, as well as major depressive disorder.

After his injury, the appellant continued to work as a shipfitter. Fast forward a few years: His supervisor was not happy with the appellant’s work and sought to have him removed. The appellant then submitted a request for reasonable accommodation, elaborating that cold weather made his hand pain and back pain worse and that he had psychological trauma.

Four reasonable accommodations were considered but dismissed. The first, moving the appellant away from the waterfront and getting him out of the cold, did not address the other physical limitations or psychological concerns. Second, making the appellant a training instructor, a role he took on while the accommodation process played out, would require a promotion, and the appellant was only capable of teaching 25 percent of the curriculum.

The appellant also requested telework or medical retirement as accommodations.

First off, early retirement is not an accommodation. (Ironically, being removed for medical inability to perform creates a presumption of entitlement to those benefits.) But more importantly, telework is not an option for the shipfitter position, which requires work on large pieces of metal on ships or in the shop. The agency attempted reassignment as an accommodation but couldn’t find a position where the appellant could perform the essential functions.

In order to receive an accommodation, the employee must be a qualified individual with a disability. The term is defined as someone who:

• Has a disability;
• Satisfies the requisite skill, experience, education, and other job-related requirements of the employment position such individual holds or desires; and
• Can perform the essential functions of such position with or without reasonable accommodation.

After a thorough process, the agency could not find any reasonable accommodations that allowed the appellant to perform the essential functions of his job. So, the agency removed him based on a single charge of Medical Inability to Perform the Essential Functions of the Position with the following specification:

“Documentary evidence demonstrates that you have permanent physical limitations and psychological limitations of an unknown duration. Because of the nature of your limitations, you are not able to perform the essential functions of your position of record.”

When the MSPB sustains all of an agency’s charges, it will usually defer to the agency’s penalty determination, only reviewing it to determine if the agency considered all of the relevant factors.

Separation for medical inability to perform is an adverse action. However, it is non-disciplinary. So, the agency did not have to apply the Douglas factors. Shoffner v. DoI, 9 MSPR 265 (MSPB 1981).

The administrative law judge ruled:

In the circumstances, the agency’s decision to remove the appellant was reasonable. Based on the existing medical restrictions, the appellant is unable to perform the WG-08 Shipfitter position. The restrictions are described as permanent. The appellant raised questions about the severity of his limitations but did not procure any adjustment from a medical provider. The agency considered the appellant for reassignment, but that process was unsuccessful.

The ALJ addressed other issues in the decision, including the appellant’s claims of whistleblowing and EEO retaliation, and reminded the appellant that removal for physical inability to perform the essential functions of a position is prima facie entitlement to disability benefits, and directed him to the Office for Personnel Management. gephart@feltg.com

Related training:

• September 23-27: Absence, Leave Abuse & Medical Issues Week