Postal and Federal Disability Retirement: The MSPB & the Window of Opportunity

At the Merit Systems Protection Board, there are multiple critical points of opportunity in which to convince, persuade and otherwise have a discussion with the Office of Personnel Management (OPM) to reverse their earlier denial of a Federal Disability Retirement application.

Remember, however, that this is the arena and playground of lawyers.  While an applicant who has meandered through the intricate administrative process of preparing, formulating and filing for Federal Disability Retirement benefits from the Office of Personnel Management, can certainly survive the administrative procedures as circumscribed by the Merit Systems Protection Board, it is a good idea to have legal representation– obviously, from the very beginning; if not, then to represent one’s interests in rebutting an initial denial at the Reconsideration Stage; if not (again), then to have proper representation before the Merit Systems Protection Board (MSPB).

Whether at a Preliminary Conference to discuss the forthcoming issues, or at a Prehearing Conference — or, in preparing and filing a Prehearing Statement as ordered by the Administrative Judge at the MSPB — opportunities arise for the Federal or Postal worker to submit additional medical evidence which can potentially persuade OPM’s representative to reverse the two previous decisions of denial.  Such opportunities must be carefully embraced.  Yet, often, a Federal or Postal employee who is unrepresented at the MSPB is unaware of the opportunities which arise, at which points, in what circumstances, and the Administrative Judge is bound by duty and position to remain neutral.  Then, of course, there is the Hearing at the MSPB, in the event that OPM does not reverse.  Whatever the circumstances of the Federal or Postal employee who is or will be filing for Federal Disability Retirement benefits under FERS or CSRS, an advocate to represent the Federal or Postal employee’s interests is paramount. Don’t “go it alone”; for, to do so will often only lengthen the process.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement for Federal and USPS Workers: The MSPB

The Merit Systems Protection Board (better known by its acronym, the “MSPB”) is the third stage of the administrative process in attempting to obtain Federal Disability Retirement benefits under FERS or CSRS.  By this Stage, while the Office of Personnel Management has been both the “judge and jury” for determining one’s eligibility for Federal Disability Retirement benefits, the case is then handed over to an Administrative Judge to be the arbiter of such determination.

While it is advisable for a Federal or Postal Worker to obtain a FERS/CSRS Disability Attorney from the start of the administrative process, it is of even greater importance to consider obtaining proper legal representation before proceeding down the path of the MSPB.  This statement of advising any Federal or Postal employee to obtain proper representation at the MSPB is made for several reasons, not the least of which includes the following:  The MSPB is the last “stage” of the process in which a Federal or Postal employee who is seeking to obtain Federal Disability Retirement benefits may submit evidence in order to prove one’s case (with some special exceptions); any basis for an appeal, upon the chance that the Administrative Judge rules against you, must be established during the Hearing of the case at this stage; and since this stage is the arena of “the law”, it is important to be familiar with the most recent case-laws which govern Federal Disability Retirement.  The MSPB is not a place to feel one’s way through; it is the playground where the “grown-ups” play.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Workers: When to file for an MSPB Hearing

Filing for Federal Disability Retirement benefits under FERS or CSRS is what is generically known as falling under “Administrative Law“.  That is, Federal and Postal employees must undergo the administrative process of filing with a Federal Agency, the Office of Personnel Management, in an attempt to prove by a preponderance of the evidence that one is eligible for, and therefore entitled to under the law, Federal Disability Retirement benefits under either the Federal Employee’s Retirement System (FERS), the Civil Service Retirement System (the “older” system, or CSRS), or its hybrid, the CSRS-Offset.  

If the Agency which makes the decision on eligibility denies a Federal or Postal employee’s application twice (both at the Initial application Stage of the process, then again at what is termed the “Reconsideration Stage” of the process), then the case can be appealed to an Administrative legal forum specifically set up to hear such cases (as well as many other types of cases involving Federal and Postal employees).  In order to file with the Merit Systems Protection Board (the “MSPB”), one must have received a “final denial” letter from the Office of Personnel Management — and, by “final”, is merely meant the “second denial” letter.  Thus, in order for the Merit System Protection Board to consider an appeal for one’s Federal Disability Retirement benefits, the Federal or Postal employee must have been denied by the Office of Personnel Management on the first two tries — first, with the Initial Application, then for the Reconsideration of that application.  Only then may a Federal or Postal employee who is filing for Federal Disability Retirement benefits under FERS, CSRS or CSRS-Offset file an appeal with the MSPB.

Sincerely,

Robert R. McGill, Esquire

Federal Worker Disability Retirement: MSPB & Prehearing

When a Federal Disability Retirement case has been denied by the Office of Personnel Management at the Initial Stage of the application process, and then again at the Reconsideration Stage of the administrative process, then it must be appealed to the Merit Systems Protection Board.  At that stage, the applicant (with the help of his or her attorney) must meet some crucial dates.  

While the Administrative process of having a Hearing before the Merit Systems Protection Board is fairly straightforward, once the Prehearing Statements are filed, it is important to participate in the Prehearing Conference with the Administrative Judge.  At the Prehearing Conference, it is important to define and limit the issues which will have to be proven at the Hearing of the case.  Issues such as accommodations and even the extent of the medical conditions which impact one’s inability to perform the essential elements of one’s job, can be clearly defined.  The individual (but more likely the attorney — because at this level, it is helpful to have the guidance of an attorney) should be very familiar with entirety of the Agency file (a copy of which OPM is required to provide after an appeal is filed with the MSPB).  This way, during the conversation with the Administrative Judge, one can say:  “Yes, Your Honor, that is already proven by document at Tab ____ of the Agency file, and need not be re-proven at the Hearing of the case.”  As with everything in life, preparation, preparation, preparation…

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: The MSPB Hearing

If you find yourself at the Merit Systems Protection Board trying to prove to an Administrative Judge that your are entitled to Federal Disability Retirements benefits under FERS or CSRS, and you have already filed a Prehearing Statement, and your witnesses have been approved at the Prehearing Conference, and further, you have outlined all of the issues, set forth the legal basis, and proffered the expected testimony, it is then “showtime”.  

It is obviously preferable for an applicant who is filing for OPM Disability Retirement benefits to be represented by a Federal Disability Attorney — if possible, from the inception of the process, through the Reconsideration Stage, to the MSPB.  However, if a Federal or Postal employee finds that, for one reason or another, you simply cannot afford an Attorney, then here are three (3) tips if you find that you are before an MSPB Administrative Judge:  (1)  Have a doctor testify, and make sure that the testimony of the doctor is precise and to the point (2) Make sure that what you prove to the Judge correlates with what you said you would prove in your Prehearing Statement, and (3) Be prepared to make objections to any of OPM’s cross-examination questions.  Finally, remember that the point of making an objection during a Hearing is not to necessarily stop the question or answer, but rather, to preserve the point for a possible appeal.  It is ultimately difficult for a non-attorney Federal Disability Retirement applicant to formulate and prepare for an effective Merit Systems Protection Board Hearing, and further, it would be better if the Federal or Postal employee had an attorney (who is well-versed in Federal Disability Retirement law) throughout the entire process; but one must play the hand one is dealt with, and that old adage is true even with a Federal or Postal Disability Retirement case under FERS or CSRS.

Sincerely,

Robert R. McGill, Esquire

Federal Employee Medical Retirement: The Connection between the Prehearing Statement and the Hearing

When a Federal Disability Retirement application under FERS or CSRS has been denied twice by the Office of Personnel Management, and one appeals the Federal Disability Retirement case to the Merit Systems Protection Board, there comes a point when the scheduling order requires that each side (the “Appellant” or the one who filed the appeal, and the Office of the Personnel Management) file a “Prehearing Statement”.  

Do not underestimate the importance of preparing a Prehearing Statement.  It is not simply a listing of the witnesses to be testifying at the MSPB Hearing; more than that, it is an opportunity to set the issues, to form in the mind of the Administrative Judge the parameters of what will be proven; an opportunity to proffer and plant the seeds of the evidence which will be presented; to undermine and preempt many of the arguments which are used customarily by the Office of Personnel Management; to argue for the Bruner Presumption (even if it does not strictly apply); and to show how, at this preliminary stage of the process, that the upcoming Hearing is really an unnecessary event.  Thus, the Prehearing Statement, as well as the Prehearing Conference, is an important preliminary step in setting the stage for success in a Federal Disability Retirement case.

Sincerely,

Robert R. McGill, Esquire

Federal Employee Medical Retirement: Preparing for an MSPB Hearing

There is a singular focus when preparing for a Hearing at the Merit Systems Protection Board:  that of persuading and convincing an Administrative Judge that you have proven, by a preponderance of the evidence, that you are entitled to Federal Disability Retirement benefits.  Of course, as I have often pointed out in the past, the full and complete preparation for an MSPB Hearing should have come about throughout the first two stages of the process — in the initial application for Federal Disability Retirement, and in responding to the Office of Personnel Management at the Reconsideration Stage of the process.  The fact that the Office of Personnel Management denied a case twice does not mean that the Applicant or his/her attorney did anything “wrong”; rather, it merely means that the Office of Personnel Management was wrong twice over.  Beyond the singular focus upon the MSPB Administrative Judge, there must be a multiple focus before the actual day of the Hearing:  Prepare, prepare, and prepare.  That means:  Go through the Agency records with a fine-toothed comb; prepare by anticipating any cross-examination questions which OPM may have; prepare the witnesses; prepare the closing argument.  Preparation is the key to every litigation, and a Hearing before the MSPB Administrative Judge is no different.

Sincerely,

Robert R. McGill, Esquire