McGlasson v. United States

• Decision Date: 14 June 1968
• Docket Number: No. 186-61.,186-61.
• Citation: 397 F.2d 303,184 Ct. Cl. 542
• Parties: Lula A. McGLASSON v. The UNITED STATES.
• Court: U.S. Claims Court

184 Ct. Cl. 542, 397 F.2d 303 (1968)

Lula A. McGLASSON v. The UNITED STATES.

No. 186-61.

United States Court of Claims.

June 14, 1968.

John I. Heise, Jr., Washington, D. C., attorney of record, for plaintiff.

Edgar H. Twine, Washington, D. C., with whom was Asst. Atty. Gen. Edwin L. Weisl, Jr., for defendant.

Before COWEN, Chief Judge, and LARAMORE, DURFEE, DAVIS, SKELTON, and NICHOLS, Judges.

OPINION

COWEN, Chief Judge, LARAMORE, Judge, and DAVIS, Judge, delivered the following opinion and announced the judgment of the court:^*

This case was referred to former Trial Commissioner Paul H. McMurray, pursuant to the order of reference and Rule 57(a), with directions to make findings of fact and recommendations for conclusion of law. The commissioner did so in an opinion and report filed on February 28, 1967. Exceptions to the commissioner's opinion and report were filed by plaintiff and the case has been submitted to the court on oral argument of counsel and the briefs of the parties. Since we are in agreement with the opinion, findings, and recommendation of the commissioner, as we have modified them, we adopt the same as modified as the basis for our concurrence in the judgment that the plaintiff is not entitled to recover and that the petition is dismissed.

Commissioner McMurray's opinion, as we have modified it, is as follows:

Plaintiff brings this action to recover back pay accruing during the period of time in which she was allegedly unlawfully separated from her classified civil service position. She must be denied recovery because the action of the Civil Service Commission was based upon substantial evidence and no material procedural errors are involved.

Plaintiff, a veteran, is a preference eligible under the Veterans' Preference Act of 1944, 58 Stat. 387, as amended, 5 U.S.C. §§ 851-869 (1964). She commenced her Federal service on March 13, 1942. On April 18, 1951, she began employment with the United States Air Force Accounting and Finance Center (hereafter Finance Center), and was a GS-3 clerk-typist at the time of her separation. Early in 1959 the Finance Center filed with the CSC an application for plaintiff's disability retirement.

Dr. Tish, Chief of the CSC Disability Retirement Section, Medical Division, informed plaintiff that the medical officers of the CSC felt that she was "totally disabled for useful and efficient service as a clerk-typist,"¹ and that her case would be adjudicated on the available evidence in her record file, including any evidence presented by her within a specified time. After receiving a request for a hearing from plaintiff's attorney, Dr. Tish informed plaintiff that no decision had been reached in her case but she would be given a psychiatric examination. His letter informed her that a determination would be made following the examination and receipt of the psychiatrist's report. Plaintiff was told that there was no need for a hearing but she had a right to appeal from an unfavorable decision.

Dr. Tish made arrangements for plaintiff to be examined in Denver, Colorado. He sent an Authorization for Medical Examination, CSC Form 3135 (hereafter Form 3135), to the Veterans Administration Regional Office in Denver. The form was used to authorize a medical examination of plaintiff for consideration in connection with possible Civil Service disability retirement. Form 3135 listed plaintiff's position, gave her birthdate, stated that the application was filed against her wishes, and described her disability as "Schizophrenic reaction, Paranoid type."² Form 3135 directed that a general medical examination and a neuropsychiatric examination of plaintiff be accomplished. The following paragraph was printed on Form 3135:

Please report your findings, diagnosis, and conclusion on the accompanying medical report form, and conclude your report of examination by stating whether the above person IS or IS NOT totally disabled for useful and efficient service in the position above noted, and whether or not the disabilities found are due to venereal disease, alcoholism, or any vicious habits. Your reasons for a conclusion of "total" disability should be fully stated.

Dr. Tish and medical officers under his supervision evaluate all disability retirement claims initiated with respect to employees in the Federal service and use their own judgment as to the type and extent of examinations required and the information deemed necessary for a proper determination.

Plaintiff reported, as directed, to the Veterans Administration Hospital on May 1, 1959, and a nurse's aide, Mrs. Montano, recorded plaintiff's weight, height and other measurements. A Dr. Masten performed a general medical examination of plaintiff. A psychiatrist, Dr. Lewis C. Overholt, performed an examination of plaintiff which consisted of a neurological examination and a psychiatric examination.³ Dr. Overholt recommended psychological testing which was later conducted by a psychologist.

Prior to his examination of plaintiff Dr. Overholt had no information concerning plaintiff other than the data listed on Form 3135. When Dr. Overholt made his report the only additional information concerning plaintiff were his notes taken during the examination. Before the data concerning plaintiff was sent to the CSC, Dr. Overholt saw the report of the psychologist, but did not alter his report. Dr. Overholt's report consisted of two pages divided into sections entitled "History," "Neurological Examination" and "Mental Status." His diagnoses were as follows:

Schizophrenic reaction, chronic, undifferentiated type, in partial remission. External precipitating stress, and predisposition not determined at this examination. Impairment, severe. Competent.⁴

On the day he examined plaintiff Dr. Masten prepared a report on CSC Form 3178, Report of Medical Examination for Civil Service Retirement (hereafter Form 3178), for the primary purpose of recording the report of a general medical examination. Instructions on this form were:

The examiner will please make full report on each complaint or disability that is alleged or found on examination.

If total disability for useful and efficient service is established, please show when such total disability began. See also instructions on Form 3135.

Near the end of Form 3178 is space for the medical examiner's conclusion. Prior to the time the data was reviewed by the CSC some individual, identity unknown, typed the following statement in the space provided:

Patient is totally disabled.

Disabilities are not due to venereal disease, alcoholism or vicious habits.

Neither Dr. Masten nor Dr. Overholt is responsible for that conclusion, and there is no evidence in the record which indicates to whom such responsibility can be attributed. Dr. Masten recorded nothing pertaining to plaintiff's psychiatric condition, but referred to Dr. Overholt's report. Dr. Masten's only diagnosis after conducting a physical examination of plaintiff was halitosis. It should be noted that the unexplained statement typed on Form 3178 is phrased in terms of the directive paragraph at the bottom of the form.

The data gathered by the hospital was sent to the Disability Retirement Section of the CSC and was reviewed by Dr. Tish and another doctor in accordance with usual procedure. Dr. Tish testified that each doctor independently concluded that plaintiff was "totally disabled for useful and efficient service" as a clerk-typist because of a "nervous disorder * * * schizophrenia." Despite the fact that the medical officers had various reports before them and that at least one of them assumed that the conclusion on Form 3178 was Dr. Masten's response to the directions on Forms 3178 and 3135, their determination or conclusion of disability was not, as explained below, influenced by the statement on Form 3178. They regard the determination of disability for retirement purposes to be the sole responsibility of the CSC and not that of the examining doctors.

Neither the psychologist's report nor the diagnosis of the psychiatrist, Dr. Overholt, were conclusive with respect to determination of disability because Dr. Tish and medical officers in his section look to the substance or detail in such reports when evaluating disability retirement claims. In view of the undisputed testimony of Dr. Tish that no more information than the title "clerk-typist" was required in order to evaluate plaintiff's suitability for the particular position, one can conclude that a more detailed description was not necessary.

When plaintiff was informed of the decision to retire her, she appealed, and Dr. Tish reviewed the determination of disability retirement arrived at in his division. Another reviewer considered the case after the review by Dr. Tish, and the case was then submitted to the Board of Appeals and Review of the CSC which affirmed the proposed involuntary disability retirement. In due course plaintiff was retired on an annuity.

Plaintiff does not attack and, as the discussion below on the scope of judicial review indicates, probably cannot successfully attack the substance of the psychiatric report on which the CSC based its determination. Plaintiff's contentions may be summarized as follows: (1) the CSC improperly denied plaintiff a hearing; (2) the motives of the Finance Center tainted the entire procedure; (3) the CSC violated a regulation requiring that the examining doctors be furnished certain information; (4) directions listed on Form 3135 were violated; (5) the mysterious statement in the conclusion space on Form 3178 prejudiced plaintiff; and (6) Dr. Tish could not properly review his own decision. These contentions will be discussed in the above order. First, however, it is appropriate to recognize that the scope of review in cases of involuntary disability retirement is limited by the Civil Service Retirement Act § 16 (c), 70 Stat. 758 (1956); 5 U.S.C. § 2266(c) (1964):

Questions of dependency and disability * * * shall be

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