Disability Retirement for Federal Government Employees: The Adversarial Structure

Preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, has inherently an adversarial structure built into the entire administrative process.  This is ultimately unavoidable, but one should not be persuaded into complacency about the bureaucratic side of things, merely because a Human Resources office describes it as procedural in nature, and merely an “administrative” matter.

That is precisely why there are appellate stages built into the system — first, within the administrative procedure itself, of filing a “Request for Reconsideration” within the same agency which denies the Federal Disability Retirement application, the U.S. Office of Personnel Management, then the ability to appeal the case to a separate, independent body, the U.S. Merit Systems Protection Board; and further to a 3-Judge panel of the U.S. Merit Systems Protection Board, which is identified as a “Petition for Full Review” (PFR).  Beyond that, there is an oversight mechanism provided via further review, by the ability to file an appeal with the U.S. Court of Appeals for the Federal Circuit, which reviews the legal application and its sufficiency through overview of the laws applied.

Indeed, one need only look at the structural mechanisms in place to understand that, far from being merely an “administrative” process, it is adversarial in nature, and should be treated at the outset as such.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement for Federal and Postal Employees: Administrative v. Adversarial

That is often the line of argument:  Since it is an “administrative process”, it is not adversarial.  This presumes quite a bit — such as, the term “adversarial” is constrained to applying only in such cases where a trial, a courtroom, and witnesses exist.  But if that is the case, then doesn’t that occur in a Hearing before the Merit Systems Protection Board? But that, too, is an “Administrative Process.” 

Such an argument, of course, is often used by Human Resources personnel to attempt to dissuade Federal and Postal workers of the necessity of retaining an attorney to file for Federal Disability Retirement benefits under FERS or CSRS.  Yet, further presumptions & assumptions would have to be made if one were to accept the argument that an “administrative process” is “non-adversarial”, such as:  the personnel who review and evaluate Federal Disability Retirement applications are “objective” and have no interest in approving or disapproving a case (this assumes that having or not having an interest in X makes the process “non-adversarial); or, that the Office of Personnel Management is merely applying the law in reviewing a Federal Disability Retirement application (this presumes that such application of the law is performed and accomplished correctly).  The concept of determining that a process is “administrative” does not exclude the reality that the same process is also “adversarial“; the two concepts are not mutually exclusive, and is not defined only within a universe where there are two or more contrary or opposing interests involved. 

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement: The Proper Paradigm

Whether we like to admit it or not, we all operate, in all segments of our lives, from a certain “paradigm” (reference Thomas Kuhn, Structures of Scientific Revolutions) or “world-view”. When it comes to Federal Disability Retirements, the majority of Federal and Postal workers who comes to me have a pre-formed, generally negative attitude about the chances of getting it. This is because they have heard too many horror stories; or they have had horrendous experiences with OWCP filings, or EEOC complaints, or other experiences which they then relate to how the disability retirement process must be.

Yet, all Federal and Postal employees must understand that the process of Federal Disability Retirement has many, many inherent advantages which make it different from other processes. For instance, the Merit System Protection Board has often observed, with respect to disability retirement, that it is distinguishable from other processes, because it is not — strictly speaking — an adversarial process between an agency and an employee; rather, the MSPB sees it simply as a single issue — that of an employee’s entitlement to disability retirement.

Further, the role of the Office of Personnel Management, while seemingly one of making things overly difficult for the individual, in reality has a very difficult time in ultimately justifying a denial. Why? Because they do not have a right to have a doctor of their own to examine the applicant/patient (note the difference with OWCP, where you can be sent to second, third, and sometimes fourth medical opinions by doctors chosen by DOL and paid by DOL). Thus, it is almost as if OPM must disprove a case filed by an applicant. Finally, it is difficult to attack a treating doctor of an applicant, unless there is something seriously wrong with the credentials or competence of the treating doctor. All in all, disability retirement for Federal and Postal Workers is a fair process — one which is a valuable benefit for the Federal and Postal Employee.

Sincerely,

Robert R. McGill, Esquire