Medical Retirement Benefits for US Government Employees: Denials

Denials issued by the U.S. Office of Personnel Management in a Federal Disability Retirement application are informative in multiple ways; while based upon templates for the most part, they often make arguments which are neither based upon the legal precedents which currently prevail, nor on standards of proof which are applicable.

In preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, the Federal or Postal employee is expected to submit a Federal Disability Retirement application based upon the standard of proof and legal requirements which are current, applicable, and relevant.

Yet, if a denial is issued by OPM — one that is based upon language which is clearly contravening the statutory standards of legal precedents — that requires things which are not truly required, then what does one do?

It is tantamount to proving a negative:  how does one prove that a murder did not occur?  Or that a man did not say something asserted to have been stated?  Or that one’s Federal Disability Retirement application does not contain “compelling” medical evidence, or here’s a better one:  “According to AMA Guidelines, you do not have more than a 5% permanent disability rating…”  What?  For OWCP purposes, that may hold some meaning or relevance, but for a Federal Disability Retirement application, it means absolutely nothing.

The answer to the question, What does one do?  What one must — go to the next level, with the proper legal tools in hand, to answer such nonsense.  Or, better yet, start at the first level with some preemptive legal arguments.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement for Federal and USPS Workers: Proving the Standard

In approaching how to prove a Federal Disability Retirement case, whether under FERS or CSRS, it is best to try and meet a higher standard of proof, and not be lulled into thinking that because the applicable standard of proof is the lower “preponderance of the evidence” standard, that the mere necessity of proving one’s case is reflective of that standard.

Standards of proof on a theoretical level are for academics; in the practical world of law, one must actually persuade and convince the individuals who are authorized to approve a Federal Disability Retirement application, that the Federal Disability Retirement application merits an approval.  This would include the personnel at the Office of Personnel Management, as well as an Administrative Judge at the Merit Systems Protection Board.

One can shout all one wants that the standard of proof needed in a Federal Disability Retirement case is the “preponderance of the evidence,” and that all that is necessary to meet that standard is that X is more likely to be true than not.  However, in the “real” world of law, people, and persuasive authority, one’s case should always strive to meet the highest standard — that it is so persuasive that the deciding authority has no choice but to approve the case.  For, as the higher standard logically subsumes all lower standards, the inverse is not true, and the interpretation of what constitutes meeting the “preponderance of the evidence” test can have a wide margin of error.

Sincerely,

Robert R. McGill, Esquire

Medical Retirement for Federal Workers: Recent MSPB Clarification

A recent Merit Systems Protection Board Decision has retracted and clarified a misinterpretation of the legal standard needed to meet in order to qualify for Federal Disability Retirement benefits, whether under FERS or CSRS.  An expanded article explaining the clarification, impact and relative significance to Federal and Postal employees who are filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management will be forthcoming (from the undersigned writer) in the very near future.

Essentially, an evolving misinterpretation of the legal standard was expanding with unforeseen implications, and indeed, this may be why the U.S. Office of Personnel Management, in recent years, has been invoking terms and concepts which have gone far beyond the applicable standard of evidentiary requirements.  To make such a claim, of course, may be giving OPM too much credit — that they are actually following the cases-law which is handed down through the MSPB and the Federal Circuit Court of Appeals; but if not, then there has been a coincidental use of onerous language which has been rather puzzling.

What the MSPB has “clarified” and retracted, is the growing misunderstanding that one of the legal standards to be met in becoming eligible for Federal Disability Retirement benefits, is to provide “unambiguous” and evidence, or evidence which is “uncontradicted”.  Such a standard is an almost impossible one to meet, obviously, and to allow for such a requirement to remain would have placed a greater — almost impossible — burden of proof upon the applicant.

When the “system” of statute-to-case-law-interpretation works, it is a wonder to behold.  Justice works slowly; but then, great works of art can never be mass produced and time is always the friend of the masterpiece.

Sincerely,

Robert R. McGill, Esquire

Federal Worker Disability Retirement: Double Standards

Double Standards have always been applied throughout history; it is the mark of a bureaucracy and administrative process to apply one set of standards (normally, the prevailing legal criteria) upon the population at large, but be satisfied with an application of a different (albeit normally a less onerous) set of standards (a “watered down version”?) upon itself.  

Thus, in a Federal Disability Retirement application under either FERS or CSRS, there are multiple self-contradictions and conundrums which cannot ultimately be reconciled, but must be lived with, but perhaps pointed out to the Office of Personnel Management in one’s rebuttal arguments.  For instance, when a denial is received from the Office of Personnel Management, the set of legal standards applied in the denial letter will often require multiple criteria which fails to comply with the substance of the law.  Thus, for example, the insistence upon “objective” medical testing; higher standards of proof than the prevailing “preponderance of the evidence”, such as “compelling evidence”; a medical condition which keeps a person “out of the workplace”; and other such standards which are nowhere to be found in “the law“.  

In parallel fashion, the Office of Personnel Management will often rely (without directly stating so or quoting from their “expert” source) upon “contract doctors” to render an opinion.  The puzzling contradiction here, of course, is the fact that while the law favors “treating doctors” and the opinions of treating doctors, nevertheless, if a “contract doctor” who merely reviews the medical documentation renders a negative conclusion, then OPM will rely upon that negative conclusion as opposed to the treating doctor’s opinion.  

Such is the world of bureaucracies, the the beauty of double standards:  from OPM’s viewpoint, it is merely the ability to assert power and authority, as OPM is the “arbiter” of all Federal Disability Retirement applications for Federal and Postal employees, whether under FERS or CSRS.

Sincerely,

Robert R. McGill, Esquire