Medical Retirement Benefits for US Government Employees: Explanations

Much of what constitutes a “proper” and “complete” Federal Disability Retirement application from the U.S. Office of Personnel Management, whether under FERS or CSRS, is discretionary in nature, and based upon experience in what has worked in the past, and what presently works.  

The law itself is never constant, precisely because the individual case-workers at the Office of Personnel Management are systematically replaced.  There are certain case-workers who tend to approach each Federal Disability Retirement application from a particularly narrow perspective, and view each case through that specific set of lens.  But for the individual Federal or Postal employee who has prepared, formulated and filed for Federal Disability Retirement benefits, he or she would never recognize any pattern of behavior from a case-worker at the Office of Personnel Management, precisely because this would be the singular, isolated event of encountering a particular case worker at OPM.  

One problem which Federal and Postal applicants for Federal Disability Retirement benefits have, is a tendency to over-explain a particular situation or issue.  Explanations are meant to be given for one central purpose — to clarify.  If an explanation further complicates and muddles an issue, then the explanation has failed.  Or, conversely, if the explanation brings up more questions than answers, then further explanations will not normally satisfy the OPM Case Worker.  Explaining an X should be condensed into simple components of y and z; otherwise, if an explanation further complicates the issue, perhaps it should be left alone until and unless there is a question which arises from the issue itself.  

Sometimes, discretion requires one to “let sleeping dogs alone”.  Don’t complicate an issue by over-explaining; better yet, keep it simple, and not offer an explanation unless called for.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Burden of Proof

In preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS, a considerable amount of effort goes into anticipating any objections which may be encountered by the Office of Personnel Management, and to “preempt” such anticipatory objections by addressing them at the outset.  

A proper balance must be maintained in engaging in such preemptive accounting, because one does not want to address the issues which would unnecessarily create a “red flag”, yet at the same time, discussing and explaining reasonable areas of potential concern should be a part of any Federal Disability Retirement application.  

The problems always arise because it is the Federal or Postal employee who is filing for Federal Disability Retirement benefits who has the affirmative burden of proving one’s eligibility for Federal Disability Retirement benefits.  The Federal or Postal employee must, by a preponderance of the evidence, prove his or her “burden of proof” affirmatively.  

Conversely, the Office of Personnel Management has the authority to review, criticize, analyze, and ultimately approve or deny a Federal Disability Retirement application under FERS or CSRS.  They can merely sit back and take pot shots at an application, point out that this particular legal criteria was not “sufficiently met”, or simply make a generic statement that the medical evidence did not present a “compelling enough” case (what in the world could such a generalized non-statement possible mean?).  

Yet, one must play the language game, and play it well, and the best way to play it is to attempt to preempt and anticipate OPM’s potential objections, and to meet one’s burden of proof by jumping ahead, and predicting how an OPM Representative might view the Federal Disability Retirement application that is being prepared.  Predicting the future is always a tenuous endeavor; nevertheless, one must engage the potential pitfalls, and anticipate the actions of the Office of Personnel Management, if one is going to be successful.

Sincerely,

Robert R. McGill, Esquire

Medical Retirement Benefits for US Government Employees: The Issue of Discretion

A Federal or Postal employee who is filing for Federal Disability Retirement benefits under FERS or CSRS may also be undergoing concurrent disciplinary proceedings, or engaged in corollary grievances, EEO Complaints, or involved in a lawsuit in a separate forum, either in the Federal Circuit Courts or at the Merit Systems Protection Board.  

In either event, the question often comes to the fore as to whether such collateral issues should be brought up in the Applicant’s Statement of Disability (SF 3112A) or perhaps in a legal memorandum or cover letter which argues the merits of the case, the legal basis for eligibility, etc.  The answer to the question as to whether, how and where is one of discretionary choice, and there is never a singular answer.  

A separate question to be asked of one’s self (with no obvious answer) is whether or not, if the applicant who is filing for Federal Disability Retirement benefits under FERS or CSRS does not bring up the fact of a collateral issue being litigated in a separate forum, will the Agency bring it up and discuss it in a way detrimental to the Applicant, and further, will the fact that the issues was not brought up make it appear as if the Applicant is somehow trying to hide the issue?  As with all such hypotheticals, the answer to all of the above is:  It all depends…  

Often, not mentioning a potential “red flag” until and unless it becomes a red flag is the best approach.  Sometimes, making a passing reference to the collateral issue may be appropriate.  In all instances, unless a connection can be made between the collateral issue and the issues central to a Federal Disability Retirement application — the medical basis and the impact upon one’s medical inability to perform the essential elements of one’s job — it is normally best to leave it alone.  In any case, such discretionary decisions should be made with the advice of an attorney.

Sincerely,

Robert R. McGill, Esquire