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, 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

Merit Systems Protection Board: A Different Animal

When an individual has attempted to obtain disability retirement under FERS or CSRS on his/her own, but has failed at both the initial stage as well as the Reconsideration Stage, while it is true that a Hearing before an Administrative Judge at the MSPB is to be heard de novo (meaning, heard “anew” and where new evidence may be submitted), it is always important to try and introduce something new above and beyond medical reports and records. This is why I normally insist upon having at least one doctor testify over the telephone. That way, everything can be presented and exposed: the Judge is able to hear first-hand the medical assessment and opinion of the treating doctor, and allow the doctor to be subjected to as much cross-examination as OPM’s representative wants.

This latter aspect is important for the administrative judge to see — that we (the applicant and the attorney) have nothing to hide; the opinion of the doctor is unequivocal and informed, and none of OPM’s questions can shake that opinion. This takes careful preparation and a systematic, thoughtful series of questions and answers between the attorney and the doctor, to meet each of the legal criteria demanded for approval of a disability retirement claim.

Sincerely,

Robert R. McGill, Esquire