Federal and Postal Disability Retirement: Sufficiency of Evidence

At what point is the sufficiency test satisfied?  Who determines when the bathtub is full enough in order to bathe?  What constitutes the threshold of being gluttonous on Thanksgiving, as opposed to having had a hearty meal? And, for a FERS or CSRS Disability Retirement application, what standard determines whether or not a person has submitted evidence sufficient to meet the preponderance of the evidence test, in order to persuade the U.S. Office of Personnel Management that a Federal Disability Retirement application has met its burden, and that the Federal or Postal employee is therefore eligible and entitled to receive an approval and a subsequent annuity?

Clearly, it cannot be mere volume of medical reports and records; for, otherwise, cases with barely a dozen pages of a report, diagnostic test results and some office notes would not pass through the scrutiny of the OPM Caseworker.  If not volume, then is it the quality of the report and records?  Here, too, while a well-documented file may generally meet the sufficiency test, there are times when OPM will insist upon treatment notes for the past 18 – 24 months before considering a case for approval.

The sufficiency test is often an admixture of quality, quantity, and a compendium of selectively highlighted documentation which, in their totality, prove an OPM Federal Disability Retirement case.  There are no two cases alike, though similarities may abound.  Each case must be seen in its own unique light, and within that context, a case must be carefully constructed and compiled.  Only in this manner and approach will the sufficiency test be met, and only after a careful and thorough review of the facts, issues and particular uniqueness of a given case — somewhat in a reflectively similar manner as OPM will do in reviewing the submitted case.

Sincerely,

Robert R. McGill, Esquire

 

Postal and Federal Disability Retirement: The Beast of Burden

The burden is undertaken by those have little choice in the matter, but who willingly submit to the responsibility and obligation.  Traditionally, the “beast of burden” (other than being a Rolling Stone song) refers to a somewhat-domesticated animal, perhaps a donkey or an ox, who must bear the weight of man’s work.

In law, the “burden” is one of proof — of the affirmative obligation to present one’s facts, persuasive argumentation based upon such facts, and the application of the relevant law which supports both the facts and the arguments.  The “other side” in the litigation has no burden at all, and can simply sit and do nothing, if he or she so chooses, and see whether or not the plaintiff, the appellant or the Federal Disability Retirement applicant has submitted sufficient proof such that he or she has met his/her burden of proof.

As the weight placed upon a beast of burden is often heavy and demanding, so in a similar vein the litigant who has the burden of proof should always expect to exceed what is “necessary” in any given case.  For the Federal or Postal employee who is filing for Federal Disability Retirement benefits through the U.S. Office of Personnel Management, whether under FERS or CSRS, it is indeed a heavy burden to bear in order to meet the legal criteria of a Federal bureaucracy who has the unmitigated power and authority to approve or deny.

The burden of proof — it is as heavy as that which we place upon a beast of burden, and the weight of such responsibility can overwhelm us, lest we have the reserve of strength to plod onward.

Sincerely,

Robert R. McGill, Esquire

Postal and Federal Disability Retirement: And the Question is …

The responsive statement often given is:  Federal Disability Retirement is not a matter of merely filling out forms; if that were the case, anyone should be able to do it without an attorney.  So, as in many gameshow forums, what is the question?  Filing for regular retirement, or even early retirement, is a matter of filling out the proper and standard forms.

Filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, while submitted to the identical agency (OPM) for “processing”, is a matter of proving one’s case.  In order to prove one’s case, one must gather the substantive evidentiary documents; compile the relevant materials; make the proper “connections” and create the “nexus”; make the compelling and relevant legal arguments; and, yes, “fill out forms”. However, this latter act of filling out standard forms, as a prerequisite, while a necessary component of the entire administrative process, is not a sufficient act which constitutes a demand for an approval.

Thus, for a regular or early retirement, one may well argue that once the forms are filled out, one has satisfied both the necessary and sufficient components of what constitutes fulfillment of all obligations required for admission into the fraternity of Federal Disability Retirement annuitants.

For Federal Disability Retirement benefits, however, the additional requirement of proof by a preponderance of the evidence must first be satisfied.  And for that, one must play the gameshow format of answering the critical, million-dollar question:  What satisfies the standard of proof in order to qualify for Federal Disability Retirement benefits from OPM, whether under FERS or CSRS?  The answer:  It has already been given, only in a form of negation:  Federal Disability Retirement is not a matter of merely filling out forms.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement for Federal and USPS Workers: The Burden

Ultimately, a Federal Disability Retirement application is a paper-presentation to the U.S. Office of Personnel Management.  Yes, yes, we are entering into a “paperless” technological society, and that is fine; but by “paper presentation” is meant in a generic sense, that the proof necessary to obtain eligibility and entitlement to a Federal Disability Retirement benefit, must be presented in a format which is readable, comprehensible, and coherent — whether on a computer screen or in paper format.

The burden of providing such proof is upon the “applicant” — the Federal or Postal employee who is attempting to obtain Federal Disability Retirement benefits.  That “burden” is both a legal one, as well as a regulatory one.  There are different levels or requirements of what constitutes proof, depending upon the requirements of what must be proven.

In a general sense, one can assert that all that is necessary in a Federal Disability Retirement case is to gather together one’s medical records, wrap them in a secure bundle, and forward them to the U.S. Office of Personnel Management.  Will such an approach “prove” one’s Federal Disability Retirement application?  It might — depending upon the seriousness of one’s medical condition, and whether the Disability Retirement Specialist assigned to such a case will take the time to infer and imply.  But to make an inference, or to expect an implication to be discerned, takes an unnecessary chance at misunderstanding, failure, and the unwanted “denial”.

Instead, the better approach is to explicitly explicate.  Always remember that in preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, there is a difference between suffering from a medical condition, and proving that the medical condition prevents one from performing one or more of the essential elements of one’s job.  It is the latter which is necessary to be approved for a Federal Disability Retirement benefit.  As to the former — while an unfortunate circumstance — it is not enough to suffer to prove one’s case.

Sincerely,

Robert R. McGill, Esquire

Federal Disability Retirement: OPM’s Standard of Proof

In reviewing a Federal Disability Retirement application under CSRS or FERS, the mandate of burden is determined both by statute and regulation, and the Merit Systems Protection Board reiterates the burden of proof in each of its decisions — that of proving one’s case by a “Preponderance of the Evidence“.  

This is a relatively low standard of proof — of showing that one is eligible and entitled to Federal Disability Retirement benefits under FERS or CSRS based upon a showing that, with all of the evidence considered, it is more likely than not that the Federal or Postal employee has shown that he or she cannot perform, because of one or more medical conditions, one or more of the essential elements of one’s job.  

There is often a question as to whether this same standard of evidentiary showing applies to the Office of Personnel Management, and this question is posed because of the statements made in many of the denial letters (which then prompts a necessary request for Reconsideration, or an administrative appeal to the 2nd Stage of the process; or, if denied at the 2nd Stage — the Reconsideration Stage — then an appeal to the Merit Systems Protection Board) issued by the Office of Personnel Management, to wit:  The evidence you submitted did not show a “compelling” reason why you could not…; The medical evidence did not show that you had to be “excluded from the workplace completely”; and other statements which seems to require a higher showing than that of “preponderance of the evidence“. 

OPM is supposed to follow the same standard of proof — that of preponderance of the evidence.  Sometimes, they need to be reminded of it.  

However, inasmuch as the safety mechanism for review of an improper standard is an appeal to the Merit Systems Protection Board, such a reminder often must take the form of an appeal.  Without the appeal basis, the Office of Personnel Management can ignore the relevant statutory burden of proof.  But then, that would not be the first time that an agency acted in a non-compliant manner.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Workers: Criteria and Proof, II

In preparing, formulating and filing a Federal Disability Retirement application under either FERS or CSRS, it is important to pause in the beginning stages of the process, prior to “going down the road” of the long and difficult administrative process of preparing a Federal Disability Retirement application, to consider the conceptual distinction between a legal criteria and the proof which is needed in order to satisfy the eligibility requirements of the legal criteria.  

In this day and age when the “culture at large” believes that an individual who speaks the loudest, uses words which appear in form articulate, and in cadence of some eloquence, the reverberations to the legal community have been felt both qualitatively and quantitatively.  Lawyers are supposed to be word-crafters; lay individuals who have some inkling of “the law”, may have some competence in the legal arena, but in order to survive the multiple pitfalls which are inherent in any area of law, it is wise to consider “that which” must be proven, as opposed to the proof itself.  

It is thus important, in preparing to formulate a Federal Disability Retirement application under FERS or CSRS, to review the statutes which govern the eligibility criteria for Federal and Postal employees; to read through the regulations; to research the case-laws as interpretive devices which can expand, constrict or regurgitate the statutory authority as written, as handed down by Administrative Judges at the Merit Systems Protection Board; then, upon a thorough and competent understanding of the legal criteria applicable in a Federal Disability Retirement application under FERS or CSRS, to begin to gather the “proof” which is necessary in order to satisfy and meet the legal criteria.  

Only upon an understanding of the distinction between criteria and proof can one then proceed to gather the latter in order to satisfy the former.  Early distinctions made can clarify and avoid later confusions encountered; or, as the age-old dictum goes, being penny wise is preferable to ending up pound foolish (or some variation thereof).

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Government Employees: Being Persuasive

In preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS from the Office of Personnel Management, there are certain “advantages” which a Federal or Postal employee/applicant may already possess from the outset, without having filed a single piece of paper with the Office of Personnel Management.  

These advantages may include:  an agency action removing the Federal or Postal employee from Federal Service based upon one’s medical inability to perform one or more of the essential elements of one’s job; an Air Traffic Controller receiving a disqualification by the Flight Surgeon; an OWCP-accepted claim where a Second Opinion doctor writes a comprehensive report and answers definitively that the Federal or Postal employee has a permanent medical condition which will prevent him or her from ever returning to his or her former job; a Supervisor’s Statement which clearly delineates and describes the extent of the Federal or Postal employee’s medical condition based upon observation and agency-impact; and multiple other “advantages”.  However, an advantage fails to become so, and remains only in a state of potentiality, unless it is actualized by being utilized effectively.  By “effective utilization” is meant that, just as one can be persuasive only by persuading, so one can effectively utilize an inherent advantage in a Federal Disability Retirement application only by persuasively arguing that the particular agency action has a legal basis in which the action itself is legally persuasive.  

In other words, the proper legal citations which have been mandated previously by a Judge in another case, must be cited and referred to, in order to use it as an argumentation basis to the Office of Personnel Management.  One cannot persuade unless one engages in persuasive conduct — and that means that one must not go out blindly into the field and use a scythe as a hammer, but be able to recognize the tool for what it is, then to use it accordingly.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Workers: What If…

In inquiring about Federal Disability Retirement benefits under FERS or CSRS from the Office of Personnel Management, the potential applicant who is inquiring about the entire process will often engage in the never-ending, perpetual game of, “What if…”  

The answer to each such question, of course, must always be prefaced with, “Even if…” but each such question and answer can continue ad infinitum until either the questioner comes to exhaust the repertoire of his or her “What if” questions, or the answer to the last what-if question is answered with, “Even if the world ends”.  

This last answer means that it does not matter what comes after the preface; the answer remains the same.  For instance:  What if Social Security approves your case prior to OPM making a decision on a Federal Disability Retirement case — and the medical officer, EAP counselor, Postal or Federal Fitness for Duty physician, or the flight surgeon, or X, Y and Z disqualifies you from your job, and you get separated from service for your medical inability to perform your job…doesn’t that automatically qualify you for Federal Disability Retirement benefits?  No — you must still prove your case by a preponderance of the evidence, and proceed as if none of the previously-cited advantages have been obtained.  

Will all of those advantages help in your case?  Yes.  Will they be determinative?  No.  

While persuasive, such administrative decisions by the agency will not be determinative.  But that doesn’t seem logical — what if, in addition to all of the previous advantages, the Agency comes out and concedes that they cannot accommodate you?  Answer:  Even if the Agency concedes that, you must still prove your case medically, by a preponderance of the evidence.  The Federal or Postal worker:  But What if…   At this point, the answer must be:  Even if the world ends, such administrative agency actions are merely persuasive to OPM, but not determinative.  But why?  

Ah…the “why” question is also a never-ending, perpetual one, and must be saved for another blog.

Sincerely,

Robert R. McGill, Esquire

Federal Employee Medical Retirement: The Human Factor

In preparing, formulating and filing a Federal disability Retirement application under FERS or CSRS, the self-contradiction involved in the entire process is that the Federal Disability Retirement packet is being submitted as a “paper presentation” to people at the Office of Personnel Management, yet, concurrently, the preparation of the submission is done with the intent of eliminating the “human factor”, and instead to meet all of the critical elements and the legal burden of proof.  

The human factor necessarily involves human elements, and therefore the potential for errors.  There is no mathematical formula in preparing a Federal Disability Retirement application.  It is not an exact science, and one cannot predict the guarantee of a Federal Disability Retirement application as to its approval.  

Because of the human element involved, one can only attempt to formulate the packet by inoculating against the potential of human errors, and that means that one must understand and interpret all of the legal criteria which are necessary for a successful approach to the process.  The human factor is countered by more human factors — that is why there is a process of appeals — before administrative judges, and Judges at the U.S. Court of Appeals for the Federal Circuit.  The appellate process is a further attempt to review the possibility of human errors, and an attempt to correct such human errors.  

If there was a mathematical construct which could precisely determine the eligibility of each Federal Disability Retirement submission, and there was unanimous agreement that the computer model was fair and without error, perhaps such a computer program will one day make the determination of an approval or denial of a Federal Disability Retirement application.  That is doubtful, however, because we are dealing with human beings, human medical conditions, and human suffering.  As such, the human factor can never be entirely eliminated, and nor should it.

Sincerely,

Robert R. McGill, Esquire