Federal and Postal Disability Retirement: What the Agency May Say

Individuals can and do tell untruths (an euphemism for a “lie”); organizations, as a collective congregation of multiple individuals, can therefore also convey negations of truthful statements (a further euphemism, stated diplomatically to avoid the unpleasantry of a direct statement).  Of course, the justification for such factually incorrect statements is that there is a “difference of perspective” or of an opinion which is not in agreement with another’s.

In preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, the portion of a Federal Disability Retirement application which the Agency must complete — most notably the Supervisor’s Statement (SF 3112B) and the Agency’s Certification of Reassignment and Accommodation Efforts (SF 3112D) can and most often do contain misstatements, differing perspectives and negations of untruthful statements.

They are not like the other forms which must be completed by the Agency — i.e., the checklist, the Certified Summary of Federal Service, etc., where the information provided can be compared to factually verifiable documents, statements, etc., and therefore will be constrained by objective and ascertainable facts.

Unfortunately, there is “wiggle room” on both the SF 3112B and the SF 3112D, and agencies tend to utilize the wide expansiveness of such roominess to move about.  That is why, what the agency says or might say, must be preempted as much as possible by the medical report and other documentation.  By providing as much of an airtight case prior to submission of the disability retirement packet to the agency, one increases the odds that the impact of what the agency says, will be minimal, and minimized.

Of course, there is then the further problem of the inaccuracies engaged in by the U.S. Office of Personnel Management itself — but that is another story to tell, and one which must be categorized in a department beyond “fiction”, but more akin to the genre of “fantasy” or “science fiction”.

Sincerely,

Robert R. McGill, Esquire

Medical Retirement Benefits for US Government Employees: Sounds Good

There are various stages of the administrative process designated and defined as “Federal Disability Retirement” — the initial application stage of the process, where one must attempt to prove by a preponderance of the evidence that one is eligible for Federal Disability Retirement benefits; if disapproved and denied, then the Reconsideration Stage of the process (where one may submit additional medical and other documentary evidence to persuade the Office of Personnel Management to reverse themselves); an appeal to the U.S. Merit Systems Protection Board, where the Federal or Postal applicant’s Disability Retirement application is taken out of the hands of OPM and transferred to an Administrative Judge, who will hear the case anew, without regard to what OPM has decided in the past; a further appeal to the Full Board of the MSPB in the event that the Administrative Judge issues an Initial Decision which affirms and upholds OPM’s denial of the case; and a further appeal to the Federal Court of Appeals for the Federal Circuit.

Throughout this process, and especially in the administrative stages before the Office of Personnel Management, one should make a distinction between “sounding good” and “being right”.  Hopefully, the Federal or Postal employee who has filed for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, is both right and sounding good. But there is a distinction to be made.  For example, OPM will often — in their denial letter — “sound good” but be completely wrong on the law.  They will cite medical textbooks which skew the legal standard of review; creep into the discussion of a denial letter such terms as “no significant disability rating to speak of,” or that you don’t suffer from a disability which “incapacitates” you.  It all “sounds good”, but it is not true precisely because it is not the applicable standard of law to be applied.

At the initial stages of the process, OPM can get away with such nonsense, because most people don’t recognize the untrue and inapplicable standard of law being applied.  In the later stages of the process, however, when an Administrative Judge hears a case, it becomes important not only to “sound good”, but to also apply the right legal criteria.

Appearance versus reality — it is the argument of Western Civilization from the pre-Socratics onward.  As Alfred North Whitehead once observed, all of philosophy was already written by Plato and footnoted by Aristotle.  That statement both sounds good, and is indeed right on point.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Medical Disability Retirement: Legal Sufficiency Test

In preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS, one is required to meet the legal sufficiency of the eligibility criteria as set forth by statute, expanded by regulations and clarified by cases which have come before Administrative Judges at the Merit Systems Protection Board.  

Whether one meets the legal sufficiency test in the presentation of medical and other supporting evidence, is the area of disputable territory, which is why the entirety of the administrative process has been put in place.  From the perspective of the Office of Personnel Management, they are mandated to review each case and make a determination as to legal sufficiency.  Often, however, they are not concerned with, ignore, or otherwise remain oblivious to, the legal standard of proof, of whether the applicable criteria has been met by a standard of “preponderance of the evidence”. Indeed, in many denial letters, they have instead indicated a much high standard of review, including whether the evidence is “compelling”, or whether the medical condition “prevents the Federal or Postal employee from coming to work altogether”.  

Unfortunately, the first two (2) stages of the process — the initial application stage, then the Reconsideration Stage — is reviewed by the Office of Personnel Management, with the potential for mis-application of the proper burden of proof.  

Legal sufficiency is not a standard which is applied until it enters into the “legal arena” — that of the Merit Systems Protection Board before an Administrative Judge.  Because of this, it is often a good idea to cite legal opinions in order to “apprise” the Office of Personnel Management of the applicable legal criteria, and to remind them of what extent of evidence meets the legal sufficiency test.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Government Employees: OPM and the 7-Part Criteria

In any denial of a Federal Disability Retirement application under FERS or CSRS, the Office of Personnel Management incessantly refers to their 7-part criteria of eligibility, in making their determination as to the legal viability of a case.

The criteria, as stated, can be both helpful, as well as result in a negative determination, for multiple reasons.  To the extent that it extrapolates and extracts from the relevant Code of Federal Regulations, it minimally states the fundamental legal requirements for eligibility of a Federal or Postal employee who is filing for Federal Disability Retirement benefits.

However, because such a basis only extracts from the originating statutory foundation for eligibility, what it completely ignores is the continually evolving cases which clarify, interpret and define the very terms which constitute the criteria.  To that extent, OPM’s adherence to the strict and narrow application of the original “law” can often result in a negative determination, precisely because such an application ignores the subsequent clarifications which have evolved and progressed from various cases which have been litigated, both in the Federal Circuit Courts as well as at the Merit Systems Protection Board level.

Beware of the 7-part criteria; if followed, it can backfire; if not followed, it can backfire.  The 7-part criteria is a Catch-22 in sheep’s clothing.

Sincerely,

Robert R. McGill, Esquire

Medical Retirement from the Office of Personnel Management: Legal Criteria

There is “The Law” — the originating, statutory authority which is passed by Congress — then, the compendium of the entirety of the legal arena, which includes decisions handed down by Administrative and Federal Judges, which comprise the expanding and evolving interpretation, clarification and extension of “The Law”.  

Unfortunately, in making its decision on an Application for Federal Disability Retirement benefits under FERS or CSRS, the Office of Personnel Management constrains itself (and its knowledge of the law) to a template based upon a “7-part criteria” which is extrapolated from the Code of Federal Regulations.  

This 7-part criteria is a simplistic and misleading application of the law.  It is not so much that it is an “error” on the part of the Office of Personnel Management to apply such a criteria; rather, it is that, in evaluating and determining the sufficiency, viability, and meeting of the standard of proof of “preponderance of the evidence” of a Federal Disability Retirement application under FERS or CSRS, it simply does not go far enough.  Because the 7-part criteria fails to include the interpretive evolution of the entirety of the laws governing Federal Disability Retirement, it fails by excluding many Federal Disability Retirement applications which are based upon legal criteria which fall outside of the delimited circumference and parameters of what OPM has set forth. 

In short, they are “behind the times” in many instances, and so when a denial is based upon a misapplied criteria, it is important to point out to OPM that X law applies in particular case Y — where “X” is outside of the scope or knowledge of the Office of Personnel Management.

Sincerely,

Robert R. McGill, Esquire

Federal and Postal Disability Retirement: The Strategy of Disheartening the Opposition

When Federal and Postal employees who have filed for Federal Disability Retirement benefits under FERS or CSRS, and have been denied at the initial stage of the process, many are sincerely disheartened.

In my initial contact with the denied applicant, there are multiple levels of reactions, including:  the denial letter points to legal criteria which they were unaware of; it refers to doctors notations which are taken completely out of context; they have completely ignored major portions of what the doctor has stated; OPM points to legal criteria which has been met, but which OPM simply denies that it has been met.

What can be done?  This is the strategy of disheartening the opposition.

In other denials, it is simply a matter of referring to a doctor’s report here, and to a medical notation there; then to simply declare:  You have not submitted sufficient medical documentation and fail to meet the legal criteria to be eligible for Federal Disability Retirement benefits.  What can be done?  No explanation; just scant references, then a unilateral declaration.  Again, this is the strategy of disheartening the opposition.  What to do?  Don’t get disheartened.  Respond.

Sincerely,

Robert R. McGill, Esquire