Disability Retirement for Federal Workers: The Legal Argument

In preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, one must always be cognizant of the “legal aspect” of the entire bureaucratic process.  For, ultimately, FERS & CSRS is based upon a statute, which has been further expanded and delineated in regulatory explication, and additionally, evolved through judicial decisions called “case laws“.  It is the compendium and compilation of a legal framework of administrative law which comprises the entirety of eligibility and entitlement to Federal Disability Retirement benefits.

Within this context, the U.S. Office of Personnel Management must make its decision upon a review of each and every Federal Disability Retirement application.  If in any single aspect of applying the law, OPM goes counter to, or misapplies the substance of, the legal framework — whether against the originating statute; in non-compliance with the regulations; in failing to apply the clarifications mandated by case-law; then, a decision by OPM denying a Federal Disability Retirement application can be reversed based upon an error in applying the law.

Thus, the importance of making a proper legal argument in a Federal Disability Retirement application cannot be overemphasized.  As “the law” is the basis of any civilized society, so the proper application of the law ensures the fair and equitable process due to each citizen who fits within the framework of the law.

Sincerely,

Robert R. McGill, Esquire

Federal Disability Retirement: OPM’s Standard of Proof

In reviewing a Federal Disability Retirement application under FERS or CSRS, the mandate of burden is determined both by statute and regulation, and the Merit Systems Protection Board reiterates the burden of proof in each of its decisions — that of proving one’s case by a “Preponderance of the Evidence“.  

This is a relatively low standard of proof — of showing that one is eligible and entitled to Federal Disability Retirement benefits under FERS or CSRS based upon a showing that, with all of the evidence considered, it is more likely than not that the Federal or Postal employee has shown that he or she cannot perform, because of one or more medical conditions, one or more of the essential elements of one’s job.  

There is often a question as to whether this same standard of evidentiary showing applies to the Office of Personnel Management, and this question is posed because of the statements made in many of the denial letters (which then prompts a necessary request for Reconsideration, or an administrative appeal to the 2nd Stage of the process; or, if denied at the 2nd Stage — the Reconsideration Stage — then an appeal to the Merit Systems Protection Board) issued by the Office of Personnel Management, to wit:  The evidence you submitted did not show a “compelling” reason why you could not…; The medical evidence did not show that you had to be “excluded from the workplace completely”; and other statements which seems to require a higher showing than that of “preponderance of the evidence“. 

OPM is supposed to follow the same standard of proof — that of preponderance of the evidence.  Sometimes, they need to be reminded of it.  

However, inasmuch as the safety mechanism for review of an improper standard is an appeal to the Merit Systems Protection Board, such a reminder often must take the form of an appeal.  Without the appeal basis, the Office of Personnel Management can ignore the relevant statutory burden of proof.  But then, that would not be the first time that an agency acted in a non-compliant manner.

Sincerely,

Robert R. McGill, Esquire

Medical Retirement for Federal Workers: The MSPB and Beyond

An application for Federal Disability Retirement benefits under FERS or CSRS should always be prepared for the “long haul“.  Thus, it should be formulated, argued and prepared as if it will be denied at each stage, and will end up before the Merit Systems Protection Board.  

Does this take any “special” preparation?  To some extent, the answer is “yes”, inasmuch as the stages beyond the Initial Application stage before the Office of Personnel Management, then the Reconsideration Stage of the process, then a Hearing before an Administrative Judge at the MSPB, involves whether or not an “error of law” was made.  As such, because each of the preceding three stages of the administrative process would essentially involve foundations for a later stage of an administrative appeal, it is obviously important to know what “the law” is.  One can hardly argue in the later stages what “errors of law” were made if one is not familiar with what “the law” is comprised of in the first place.  By establishing certain key foundations, and inserting legal precedents and arguments throughout the process, one has a better chance at arguing that legal errors were made by the Administrative Judge. While a Federal or Postal worker should certainly expect that his or her Federal Disability Retirement application should be approved at any given level because it has been properly prepared, it is always wise to look beyond the present, and prepare for future contingencies.

Sincerely,

Robert R. McGill, Esquire