In some ways, the fact that each “stage” of the process of Federal Disability Retirement is independent from each other, is a “given”. When a Federal Disability Retirement application is denied at the Initial Stage of the process, then again at the Reconsideration Stage of the process, it is considered a positive part of the administrative process that the Merit Systems Protection Board will evaluate and decide the case “de novo”, or “anew” or “afresh”, without regard to what the Office of Personnel Management stated, decided, affirmed or concluded.
To that extent — to have an independent eye and an evaluation unbiased by prior analysis — is a good thing. However, when one reads the decision of the Office of Personnel Management at the Initial denial of the application, then again at the Reconsideration denial of the application, it is somewhat disconcerting that neither OPM Representatives relied upon the analysis of the other. What this allows for, of course, is an independent review by both the Initial Stage of the application and the Reconsideration Stage of the application, and while such independence of review can be seen in a positive light (again, that one OPM Representative is not influenced or biased by the views of the other), more often than not, what happens is that the Reconsideration Stage OPM Representative merely comes up with new and previously unfounded arguments upon which to deny the application a second time.
In short, it is difficult to stabilize the arguments upon which OPM relies, in order to answer and refute them. That is why the MSPB’s approach of viewing a case de novo is important. For, by ignoring the malleability of OPM’s reviewing process, one may get an objective and truly independent analysis and evaluation of the case. Independence is an important component of “fairness”; objectivity is an integral element; and integrity is the filament which holds the law together.
Robert R. McGill, Esquire