Federal Worker Disability Retirement: Criteria & Proof

In preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS, a two-step process (at a minimum) must be engaged in when compiling the foundational presentation of a Federal Disability Retirement application.  

First, a thorough reading, comprehension and understanding of the “what” in reviewing the criteria applicable for eligibility and entitlement to a Federal Disability Retirement application:  What does it say?  What is required?  What type of evidence meets the requirements?  And sometimes just as importantly:  What has previously failed to meet the requirements?  

Thereafter, once the conceptual framework of grasping and understanding the “what” of the process, and proceeding to gather the information requested in preparing and formulating one’s Federal Disability Retirement application under FERS or CSRS, then the pre-filing conceptual stage of the second-order should be engaged in:  “Whether”.  

Whether what is gathered is sufficient to meet the legal criteria necessary to be eligible and entitled to Federal Disability Retirement benefits under FERS or CSRS; whether it is either (or both) qualitatively and quantitatively sufficient to meet the legal criteria for eligibility.  The “whether” question is a much more universal one, in that it must encompass the full panoply and compendium of the evidence gathered.  Not that it cannot be supplemented at a later date (it can), although there are restrictions and limitations imposed by what is delineated on one’s Applicant’s Statement of Disability (SF 3112A).

Understanding the conceptual distinction between the “what” and the “whether” is an important mental exercise to undertake, if only on a superficial level of making one pause for a moment to consider whether the extensive effort one must endure will be worthwhile.  

It is better to take the necessary and sufficient time at the outset, than to find out after much effort has been expended, that both the “what” and the “whether” have been insufficient to meet the basic legal criteria for eligibility for Federal Disability Retirement benefits under FERS or CSRS from the Office of Personnel Management.

Sincerely,

Robert R. McGill, Esquire

Medical Retirement Benefits for US Government Employees: Meeting the Statutory Minimum

In preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS, the Federal or Postal employee must prove, by a preponderance of the evidence (that burden of proof which is fairly minimal in the order of difficulty, requiring that a Federal or Postal employee show that he or she is “more likely than not” entitled to Federal Disability Retirement benefits under FERS or CSRS) that the compilation of the evidence meets the statutory requirements such that one is eligible and entitled to Federal Disability Retirement benefits.  

Thus, it is the cumulative set of evidence which is reviewed by the Office of Personnel Management, and not merely a single piece of evidence.  Yet, the manner and methodology of how OPM reviews the evidence is revealed in any given denial letter issued by the claims representative, or the “Legal and Administrative Specialist” assigned to any particular case.  

It is a methodology of (A)  listing whatever medical evidence which was submitted by naming the doctors, thereby giving an appearance of a full and thorough review of the documents, and (B) selectively extrapolating statements made by the Applicant, the Supervisor, the doctor(s) and anyone else in attempting to undermine the conclusion that the statutory criteria for eligibility has been met.  In laymen’s terms, this is called, “Taking potshots” at something.  If meeting the criteria for eligibility is to show a sequence of connecting dots from point A to point B, then OPM’s view is that if there are enough potshots which sever the line between the points, then OPM has shown that a Federal or Postal employee is ineligible for Federal Disability Retirement benefits.  

This is the approach; it is up to the applicant who is preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS to ensure that any weak links in the line are sufficiently reinforced.

Sincerely,

Robert R. McGill, Esquire

Federal Employee Medical Retirement: OPM and the Law

The Office of Personnel Management is the agency which determines all applications for Federal Disability Retirement, whether under FERS or CSRS (or CSRS-Offset).  In making such a determination, a standard of “objectivity” is expected by each and every Federal and Postal employee, in making such a determination.  

The Office of Personnel Management (OPM) applies a set of criteria as determined by statute and further expanded upon by the Merit Systems Protection Board and the Federal Circuit Court of Appeals.  The entirety of “the Law” which governs and guides the eligibility and entitlement to Federal Disability Retirement benefits is thus based upon a patchwork of legal holdings, statutory language, and cases and legal opinions which have “evolved” over the years.  From this patchwork of laws, one expects a “representative” from OPM to apply it fairly, objectively, and without any arbitrariness or capricious intent.  Yet, since the individuals applying “the Law” at OPM — at least at the first and second “Stages” of the process — are not themselves lawyers, how realistic is this?  

Ultimately, legal arguments in persuading OPM to approve a case are best made when they are concurrently explained — explained in their logic, their force of argumentation, and in their applicability to a given issue.  Simply declaring that “the Law” applies will not do; one must sensitively guide OPM to understand the very laws which govern their behavior.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Government Employees: The Medical Records

Federal Disability Retirement under FERS & CSRS is essentially “connecting the dots” between one’s medical conditions (whether singular or multiple) and the impact of the medical condition(s) upon one’s ability to perform all of the essential elements of one’s job.  The treatment records, also, are helpful in the matter of connecting the dots, as the Office of Personnel Management will often request a copy of the medical records — evidence of treatment over the years — in order to ascertain the extent of the medical conditions claimed.  

This can sometimes present a problem, when a Federal or Postal employee has switched doctors, has quietly endured the pain of the medical condition with little or no treatment over the years, or where the doctor fails to annotate any legible or detailed notes in his or her treatment notes.  Normally, however, there is a consistency of evidence between treatment/office notes and the medical narrative which the doctor prepared; or, between the diagnostic results and the clinical findings and conclusions of the treating doctor.  Where there is a lack of medical records “backing up” the narrative report of the doctor, often a Functional Capacity Evaluation or an “independent medical evaluation” by a referral doctor will help a case.  As always, there are ways to counter the problems which arise, in order to meet the eligibility criteria as proposed by the Office of Personnel Management in a Federal Disability Retirement case.

Sincerely,

Robert R. McGill, Esquire

Medical Retirement for Federal Workers: The MSPB

The Merit Systems Protection Board is the arena, in a Federal Disability Retirement application, where the issues are taken out of the control of the Office of Personnel Management for an independent review of a Federal or Postal employee’s disability application to obtain the benefit.  In a Federal Disability Retirement application, the Office of Personnel Management is given an opportunity (twice — at the initial stage of the process, then at the Reconsideration Stage) to make the “right” decision (in my view, “right” being an approval of a Federal Disability Retirement application under FERS or CSRS, at least for my clients).  

If that decision is a denial, at both levels, then the applicant has the right and opportunity to file an appeal to the Merit Systems Protection Board.  At that level, by a preponderance of the evidence, the Federal or Postal employee must prove that he or she meets the criteria, under the law, to be eligible for Federal Disability Retirement benefits.  Some de minimus extent of discovery is engaged in; a Prehearing Statement defining the issues and identifying the proposed list of witnesses must be prepared; and, finally, a Hearing is set.  It is the forum in which someone other than OPM will have a fresh opportunity to review the case, and this is a good thing.  Otherwise, only the fox would be guarding the hen house, and under that scenario, there would be very few hens left alive, if any.

Sincerely,

Robert R. McGill, Esquire

Medical Retirement Benefits for Federal & Postal Employees: The Overstated Case

An overstated case can literally overwhelm the Disability Specialist who is assigned to review and decide upon a Federal Disability Retirement application under FERS & CSRS.  Indeed, the sheer size of a voluminous Disability Retirement packet can appear daunting, intimidating, and ultimately one which may find itself at the “bottom of the stack” of cases.  If this happens, then the result can be an approval or a denial; as to the former, it may well be that the quantitative appearance made it appear substantive in a qualitative manner; or it could be that the OPM Representative came upon a self-imposed deadline and decided that it was time to dispose of it, and approve it.  More likely, however, is the outcome of a denial — for, what a voluminous Disability Retirement packet normally reveals, is that it is not a simple connection between one (or perhaps two or three) medical conditions, and their impact upon a Federal or Postal employee’s inability to perform one or more of the essential elements of one’s job.  Instead, the thickest packet of them all likely means that there is alot of fluff and superfluous material — and if the OPM Representative has to search to find the meat of the matter, it may well be thrown into the dustbin of denials.

Sincerely,

Robert R. McGill, Esquire