James E. & Ruth L. Norris - Page 8




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          the nature of a workmen’s compensation act if it allows for                 
          disability payments for any reason other than on-the-job                    
          injuries.  See Haar v. Commissioner, 78 T.C. 864, 868 (1982),               
          affd. per curiam 709 F.2d 1206 (8th Cir. 1983).  If the statute             
          does not qualify, then the fact that the taxpayer’s injury was              
          work related is irrelevant.  See Smelley v. United States, 806 F.           
          Supp. 932, 935 (N.D. Ala. 1992), affd. per curiam 3 F.3d 389                
          (11th Cir. 1993).                                                           
               Disability retirement payments received under FERS are not             
          workmen’s compensation payments.  See Merker v. Commissioner,               
          supra; Wham v. Commissioner, T.C. Memo. 1985-625, affd. without             
          published opinion 812 F.2d 1402 (4th Cir. 1987).  Although                  
          petitioner suffers from a disability which may have arisen in the           
          course of his employment with the FAA, a Federal agency, that               
          alone is insufficient to meet the requirements of section                   
          104(a)(1).  Petitioner received his disability annuity under                
          FERS, 5 U.S.C. ch. 84 (1994).  Under FERS, an employee shall be             
          considered disabled only if the employee is found by OPM to be              
          “unable, because of disease or injury, to render useful and                 
          efficient service in the employee’s position.”  5 U.S.C. sec.               
          8451(a)(1)(B) (1994).  Disability under FERS does not distinguish           
          between injuries occurring on the job or elsewhere; rather, the             
          focus is on whether the employee is able to perform the tasks of            
          his employment in a “useful and efficient” manner.  See Merker v.           






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