Medical Retirement Benefits for US Government Employees: Insufficiency Test

The validity of allegation that there is an insufficiency of X is partly determined by an objective standard, and partly (if not mostly) derived from a judgment as to the nexus between X and the standard to be applied.

In Federal Disability Retirement cases the basis of most Federal Disability Retirement denials is that there is an insufficiency of proof, whether as to issues of light duty or accommodation, medical opinion, medical documentation; questions about deficiency of service; and multiple other specified areas — but all will ultimately be determined to have a “lack” of something such that it fails to meet a “sufficiency” test.  But sufficiency can only be determined by comparing what exists (i.e., what has been previously submitted to the Office of Personnel Management) to what the legal standard of proof requires.

Further, since the overriding legal standard is based upon a “preponderance of the evidence”, which requires that something be ‘more likely than not’, the narrow gap between human involvement in the judgement of sufficiency, and a truly objective basis for such insufficiency, is susceptible to human error.  Because of this, appearance of quantity in addition to quality is often what is required.

As decisions by OPM are rendered by a wide range of people whose judgment, competence and approach in evaluating a case differ greatly, it is unfortunately necessary to take into consideration the foibles of human error.  Until a precise algorithm is invented which applies fairly and accurately in all cases across the board, we must continue to deal with human beings, the their errors of judgment.

Sincerely,

Robert R. McGill
FERS Disability Lawyer

 

Early Retirement for Disabled Federal Workers: The Appeals

While it is often stated that a Federal Disability Retirement application has three (3) stages to the process, there are additional appellate stages which must be considered, and certain additional steps and actions must be undertaken, in order to preserve the viability of the final two stages of the process.  The initial three stages are comprised of the (A) Initial Application Stage of the process in preparing and filing for Federal Disability Retirement benefits under FERS & CSRS; then (B) if it is denied at the Initial Stage, there is the Reconsideration Stage, where one may submit additional medical documentation and legal arguments, and finally (C) an appeal to the Merit Systems Protection Board, which takes the Federal Disability Retirement application out of the control and hands of the Office of Personnel Management, and allows for an Administrative Judge at the MSPB to hold a Hearing and make a determination.  

The two additional stages of the process for Federal and Postal workers who have filed for Federal Disability Retirement benefits, are:  (1)  a Petition for Full Review (which I recommend should be taken, in the event of a further denial by the Administrative Judge at the MSPB Appeal) and (2) the U.S. Court of Appeals for the Federal Circuit (which can be filed with directly after being denied at the MSPB level, skipping over the Petition for Full Review).  The last two stages of the process — the Petition for Full Review and the U.S. Court of Appeals for the Federal Circuit — will not consider any “new evidence” (except in some rare instances), but will be a review as to whether any error of law occurred.  As such, all of the previous steps of the process would be reviewed, and that is why at each and every step, it is important to know what is important in preserving one’s right to an appeal, what is a basis for an appeal, etc.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Reconsideration Response — Refrain from Reflexive Response

When a denial is received for an Application for Federal or Postal Disability Retirement benefits under FERS or CSRS, sometimes they are replete with comical “errors” and omissions.  Thus, anywhere from mistaken identities, to wrong job identifications, to the wrong doctors named; from medical conditions which were never claimed, to diagnostic tests and surgeries which were never submitted; these are just some examples of errors and omissions which one might find in the body of the “Discussion” in an OPM denial letter.

The reflexive temptation is to put together a string of harangues and accuse the OPM Representative of incompetence, incoherence, ineptitude, and inability to perform the essential element of his or her job.  Such a reflexive response would be the wrong tact to take, however.  One should refrain from making such “ad hominem” attacks.

Instead, the better way to go about it would be to politely point out the major errors, the omissions of any medical or other substantiating documentation, in an understated way, then to argue the main points that need to be argued to rebut the denial letter.  While the former methodology may make you feel good, in the end, it is an approval which will prove to be of lasting elation.

Sincerely,

Robert R. McGill, Esquire