OPM Disability Retirement: The Resignation Argument

Sometimes, in preparing to file for Federal Disability Retirement benefits from the Office of Personnel Management under FERS or CSRS, one is either forced to resign or, because of financial or other reasons, it is the best course of action to take.  

In any resignation, one should submit a resignation letter which clearly and concisely identifies the reason for one’s resignation:  Medical inability to perform one’s job.  While such resignation, for the reasons stated, may not invoke what is termed the “Bruner Presumption“, it nevertheless lays the groundwork for arguing that one is entitled to the Bruner Presumption.  

Now, understand that such an argument may fly completely over the heads of anyone and everyone at the Office of Personnel Management.  However, if the case is denied both at the Initial Stage of the Process, and at the Reconsideration Stage of the Process at the Office of Personnel Management, then it must be filed as an appeal to the Merit Systems Protection Board.  There, with an Administrative Judge reviewing the record, while it may still end up that one is not entitled (technically) to the Bruner Presumption, sometimes the strength of an argument in favor of a legal precedent is almost as strong as obtaining the substantive elements of the legal precedent.  

Indeed, if all of the corollary issues surrounding the stated resignation for medical reasons are consistent — the medical documentation; using FMLA; being on OWCP for part of the time, or otherwise only able to work part of the time; etc. — then the fact that one was forced to resign based upon one’s medical inability to perform one’s job, is a consistency worth documenting and arguing thus:  While it is true that one was not removed for one’s medical inability to perform the job, it is “as if” one was removed, because there was really no other choice available.  Sometimes, it is the argument itself which provides the foundation for persuasion, and not the technical application of a legal device.

Sincerely,

Robert R. McGill, Esquire

Federal and Postal Disability Retirement: The Lost Cause

For a lawyer, it is indeed the “lost cause” which is the most challenging of cases.  This is no less true in Federal Disability Retirement cases for Federal and Postal Employees under FERS & CSRS.  In fact, in some instances it is all-the-more-true, because there is necessarily involved a physical or psychiatric medical condition which makes the case all the more worthwhile in fighting for. 

The concept of the “lost cause” is evocative of the famous scene from Frank Capra’s classic movie, Mr. Smith Goes to Washington, of course; and no lawyer, no matter how good, should be so arrogant as to think that he or she meets with the standard of what Jimmy Stewart was fighting for.  For one thing, lawyers get paid for what they do.  Yet, it is indeed the “lost cause” cases which often spur the attorney in any area of law, with eagerness and pride. 

Whether to obtain Federal Disability retirement benefits for an individual who was wrongfully terminated for extraneous reasons; proving to the Judge that, despite post-termination medical documentation, one can and should logically extrapolate that the medical conditions existed prior to separation from Federal Service; to persuade the Office of Personnel Management that the Agency knew, or should have known, of the medical condition, and should have terminated the individual for his or her medical inability to perform one or more of the essential elements of one’s job, as opposed to the manner in which the Agency went forth; these are all microcosmic examples of “lost causes”; and it is indeed the lost cause which is the most challenging of cases for an attorney.

Sincerely,

Robert R. McGill, Esquire

Federal and Postal Disability Retirement: Approaches & Decisions

With each case, a story must be told.  If the case gets denied, normally my approach is not so much that a “narrative” must be retold, but rather, I tend to view the Reconsideration Stage of the Federal Disability Retirement application process more as the “battle” to set the proper stage — to either win at the Reconsideration Stage, or to win at the Merit Systems Protection Board stage.  What is interesting is that, within the three stages of the process (excluding the appellate stages of the Full Board Review and the appeal to the Federal Circuit Court of Appeals), the need to tell a coherent, empathetic, sympathetic and compelling story of a dedicated and loyal Federal employee who suffers from a medical condition such that it impacts him or her from performing one or more of the essential elements of one’s job, comes “full circle”. 

I approach the “Reconsideration Stage” of the Federal Disability Retirement process under FERS & CSRS as the “center point” of battle, in many ways, precisely because it is the step just before taking it before an Administrative Judge at the Merit Systems Protection Board.  It is the place to give the Office of Personnel Management a subtle warning:  This is your last chance before the destiny of the Disability Retirement Application is taken completely out of your hands and control, and placed into the hands of an Administrative Judge.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: The Law

Technically, the law does not have to be applied at the administrative, agency-level of the Office of Personnel Management.  Let me clarify:  one likes to always think that when an applicant for Federal Disability Retirement under FERS or CSRS is filing for the benefit, that the agency which oversees the application will review it with an overarching umbrella of criteria which is governed by an objective foundation deemed as “the law”.  Thus, in a perfect world, one might imagine an efficient line of technocrats sitting in cubicles, all with a reference book containing the relevant laws governing the eligiblity criteria for Federal Disability Retirement.  But that would be in a perfect world; and since such a perfect world fails to exist, what we have is an arbitrary sprinkling of various personnel, who collectively comprise the Office of Personnel Management, some of whom apply the law well, and some of whom apply the law less than competently. 

To some extent, the arbitrary methodology applied at the agency level is counter-balanced with the threat of a review by an Administrative Judge at the Merit Systems Protection Board, followed by a Full Review at the MSPB, then to be further appealed to at the Federal Circuit Court level; but it is nevertheless sometimes disconcerting that, at the Agency level, this peculiar animal called “the law” is not uniformly applied in all cases, at all times.  And sometimes rarely.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: The Merit Systems Protection Board

An appeal to the Merit Systems Protection Board in a Federal Disability Retirement case means that the disability retirement application has been denied twice by the Office of Personnel Management:  at the initial application stage, then at the Reconsideration Stage.  This is often considered to be the third and last try — of convincing an administrative judge (an “AJ”) that you are entitled and eligible for disability retirement.  There are, of course, two additional stages — an appeal to the Full Board and to the Federal Circuit Court — but such avenues present only the right to reverse a decision of the Merit Systems Protection Board, and no new evidence can be presented.

Thus, one might consider the Merit Systems Protection Board as the “last stop” in the administrative process.  Do not think, however, that the process must necessarily be won before the Administrative Judge in a hearing — much work and persuasive argumentation should be made to the OPM representative who is handling the case at this MSPB Stage.  The OPM representative at the Third Stage of the process is usually an attorney; they are competent; they are versed in the case-law — and thus open to be persuaded by legal argumentation.  While the administrative stages (the Initial Stage and the Reconsideration Stage) involved OPM representatives who are non-attorneys, the MSPB Stage involves seasoned attorneys who present an opportunity for persuasion and argumentation, and thus a golden opportunity to convince OPM to reverse their own decision before coming to a Hearing.  Such an opportunity should never be missed, and every effort should be made by the applicant’s attorney to have multiple contacts with the OPM representative prior to the date of the Hearing.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement: Beyond the MSPB

Not all cases that should be won, are won. No one can win 100% of the time; think about it — even the best Major League Baseball players strike out at least 2 out of every 3 at-bats. Most strike out every 3 out of 4 times. Fortunately, I am able to pass through a high percentage of my clients at Stages 1 or 2 of the Disability Retirement process, and that is how it should be.

Every now and again, however, a case must go to the Merit Systems Protection Board; and out of the small number that must get to that point, an even smaller number goes before an Administrative Judge who is clearly anti-employee, and ignores the law and sides with the Office of Personnel Management. Fortunately, most MSPB judges are fair and understand that disability retirement laws favor, for the most part, approval of disability retirement benefits. In those instances where, for whatever reason, a case has been denied at Stages 1 & 2, and the MSPB Judge completely ignores the strong and unequivocal testimony of the doctor, then there is still a good shot at winning the case at the 4th level — a Petition for Full Review.

Such a Stage must be approached by pointing out the legal deficiencies and, indeed, the Hearing Judge’s complete mis-application of the law. It must be done delicately and respectfully, however, because you are essentially asking that the Full Board (a panel of 3 Administrative Judges) reverse one of the Administrative Judges at the Merit Systems Protection Board — to declare that the Administrative Judge “erred” in applying the law. It is possible to do — but it must be done with care, respect, and technical expertise.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Situational Disability II

To reiterate: Situational disability can be an issue which can defeat a disability retirement application, precisely because OPM (and if it gets to the MSPB level, the Administrative Judge) can conclude that the Psychiatric disability in question originates and results in response to the hostile workplace environment.

These three concepts are important to understand — originate, result in, and result “in response to”. A psychiatric condition can originate from a hostile work environment, but as long as the medical condition then pervades beyond the work environment and impacts a person’s life through and through, then that alone does not constitute situational disability, because while it may have originated from A, it is not limited to A.

The second concept — results in — must be seen in the context of the condition of the psychiatric disability. Thus, does the (for example) Major Depression or anxiety result solely from the work environment, or does one experience the symptoms while at home, even while away from the work environment?

And thirdly, does the individual experience the symptoms of the psychiatric condition “in response to” his or her exposure to the work environment, or are the symptoms all-pervasive: i.e., throughout all aspects of the person’s life?

To differentiate these three concepts is important in avoiding the pitfalls of situational disability, and in helping to prepare a Psychiatrist in either preparing a medical narrative report, or in his or her testimony before an Administrative Judge at the Merit Systems Protection Board.

Sincerely,

Robert R. McGill, Esquire

Merit Systems Protection Board: Hearings Are Not Inevitable

The third step in the process of filing and obtaining disability retirement from the Office of Personnel Management is to appeal the case to the Merit Systems Protection Board. This is initiated after a disability retirement application has been denied twice: First, at the initial stage, then, upon a request for reconsideration and an opportunity to submit additional medical and other documentation, if the Office of Personnel Management denies the application a second time, then the Applicant has the right to file an appeal with the Merit Systems Protection Board.

Such a case is then set to be heard by an Administrative Judge, and mandated to be completed within 120 days from the time it is appealed. Many applicants who go into this third stage have the unwarranted belief that a Hearing is an inevitability, and that there is no further opportunity to convince OPM to reverse themselves, or change their minds. That is simply not the case. Often, the OPM representative at the MSPB level is much more attuned to the evidentiary level required, and will entertain the receipt and review of an updated medical report, or additional diagnostic tests, or more detailed treatment notes, etc. The mere fact that OPM denied the application at the first two stages, and the fact that the jurisdictional landscape has now changed from OPM to the MSPB, does not mean that OPM’s mind cannot be changed. The key is to listen carefully at what OPM’s representative is saying at a Prehearing Conference, or even earlier if contact is made with him/her. By listening and complying with a reasonable request, it can save the applicant needless time and expenses (for the testimony of a doctor can, indeed, be expensive), and have the ultimate outcome that the applicant desires: approval of a disability retirement application.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement Cases Before an MSPB Judge

When putting on a disability retirement case under FERS or CSRS before the Merit Systems Protection Board, it is essential that an applicant (if unrepresented) and the attorney (if represented, the applicant need not participate in any Prehearing Conference, but will obviously encounter the Judge during the Telephone Hearing) listens to the Administrative Judge during any Pre-Hearing Conference.

Most Administrative Judges are actually willing to help the appellant. While judges are unable to render legal advice or to actually lend counsel to the appellant, many administrative judges go out of their way to clearly outline for the Appellant the tools needed to persuade and win the case. Administrative Judges, for the most part, actually want to root for the appellant, and want you to put on a good case to persuade them to rule in your favor. In my opinion, an appellant should have an attorney at the Merit Systems Protection Board. At a Prehearing Conference, I listen carefully at any special concerns or comments which an Administrative Judge may make — because such concerns are often the key to winning the case for my client. Remember — judges are human; they want to root for the underdog; they want you to win your case.

Sincerely,

Robert R. McGill, Esquire

Merit Systems Protection Board: A Different Animal

When an individual has attempted to obtain disability retirement under FERS or CSRS on his/her own, but has failed at both the initial stage as well as the Reconsideration Stage, while it is true that a Hearing before an Administrative Judge at the MSPB is to be heard de novo (meaning, heard “anew” and where new evidence may be submitted), it is always important to try and introduce something new above and beyond medical reports and records. This is why I normally insist upon having at least one doctor testify over the telephone. That way, everything can be presented and exposed: the Judge is able to hear first-hand the medical assessment and opinion of the treating doctor, and allow the doctor to be subjected to as much cross-examination as OPM’s representative wants.

This latter aspect is important for the administrative judge to see — that we (the applicant and the attorney) have nothing to hide; the opinion of the doctor is unequivocal and informed, and none of OPM’s questions can shake that opinion. This takes careful preparation and a systematic, thoughtful series of questions and answers between the attorney and the doctor, to meet each of the legal criteria demanded for approval of a disability retirement claim.

Sincerely,

Robert R. McGill, Esquire