Is it even important, anymore? Lawyers, of course, are notorious for making alternate arguments, presenting to a Judge or a Jury different explanations, alternative legal theories and justifications, often within the span of a single sentence, and even sometimes contradicting each other.
It is only when the contradiction occurs within the confines of a single theory that the Judge may say, “Wait, counsel — hoooooold on there! Are you trying to argue X and Not-X at the same time?” The answer by the clever lawyer: “No, your honor, I am merely pointing out that X could be, and Not-X is also credible, leaving my client to appear not only as an innocent bystander but, moreover, a not-guilty one as well!”
In some forums, that may hold; but in a Federal Disability Retirement case, the only way that inconsistency of argumentation works is when an OPM Medical Specialist says so. OPM denies cases systematically without any regard to consistency of argumentation. This is because there is no accountability at the U.S. Office of Personnel Management. They can review a case, deny it, and it is out of the hands of the Medical Specialist who made the decision.
Then, at the Reconsideration Stage, a completely different Medical Specialist will make a brand new determination, based upon his or her own perspective and viewpoint, and it need not have any consistency of argumentation with the previous decision.
Fortunately, however, when it goes before an Administrative Judge at the U.S. Merit Systems Protection Board, Consistency of Argumentation becomes an important factor. For, that is one of the primary basis upon which an MSPB Federal Disability Retirement case is lost — when consistency of argumentation based upon the evidence becomes questionable.
Inconsistency is the downfall of most cases at the MSPB; consistency — even with less than adequate evidence of a compelling nature — will often overcome much, and win the case. The one thing that Administrative Law Judges at the MSPB dislike above all else: Inconsistency in testimony, Inconsistency in evidence, and Inconsistency in the closing argument of an attorney.
Robert R. McGill
Lawyer exclusively representing Federal and Postal employees to secure their Federal Disability Retirement benefits under FERS from the U.S. Office of Personnel Management.