Medical Retirement for Federal Workers: The MSPB and Beyond

An application for Federal Disability Retirement benefits under FERS or CSRS should always be prepared for the “long haul“.  Thus, it should be formulated, argued and prepared as if it will be denied at each stage, and will end up before the Merit Systems Protection Board.  

Does this take any “special” preparation?  To some extent, the answer is “yes”, inasmuch as the stages beyond the Initial Application stage before the Office of Personnel Management, then the Reconsideration Stage of the process, then a Hearing before an Administrative Judge at the MSPB, involves whether or not an “error of law” was made.  As such, because each of the preceding three stages of the administrative process would essentially involve foundations for a later stage of an administrative appeal, it is obviously important to know what “the law” is.  One can hardly argue in the later stages what “errors of law” were made if one is not familiar with what “the law” is comprised of in the first place.  By establishing certain key foundations, and inserting legal precedents and arguments throughout the process, one has a better chance at arguing that legal errors were made by the Administrative Judge. While a Federal or Postal worker should certainly expect that his or her Federal Disability Retirement application should be approved at any given level because it has been properly prepared, it is always wise to look beyond the present, and prepare for future contingencies.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement for Federal and Postal Employees: Legal Citations

Some question whether or not legal citations are necessary in filing a Federal Disability Retirement application under FERS or CSRS.  Certainly, as an administrative process in applying for a benefit from the Office of Personnel Management, there are individuals who attempt to obtain the benefit of Federal or Postal Disability Retirement benefits without the representation or assistance of an Attorney, and such “self-represented” individuals rarely refer to legal authorities or citations in such an application.

Are legal citations — or references to legal authorities, statutes or case-laws — “necessary” when filing an application for Federal Disability Retirement benefits under FERS or CSRS?  If by “necessary” is meant, is it a requirement in order to be eligible for obtaining OPM Disability Retirement benefits, then the obvious answer is “no”.

However, the purpose in referring to legal authorities is quite simple, and logically based:  As the Office of Personnel Management is required to apply the legal criteria in determining one’s eligibility for Federal Disability Retirement benefits, it makes sense to support one’s application by citing the legal authorities which reinforce and explain the legal basis for eligibility.

As such, while citing legal authorities is not a necessary condition in applying for Federal Disability Retirement benefits, it may be a condition precedent which may need to be sufficiently satisfied in order to favorably “weight” the successful outcome which is sought after.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Information

I am sometimes asked whether or not, in providing detailed information concerning FERS or CSRS disability retirement, I am revealing “too much” information. The way that I look at it is this: Not everyone can afford an attorney. I try to set my fee structure in a fair, reasonable and competitive manner, so that most people are able to retain me. When people are not able to afford an attorney, information on the process, the substantive requirements, and the legal precedents, are important to be able to access. While information provides power, however, it is not the same as having an effective advocate representing a case before the Office of Personnel Management.

Further, one of the greatest compliments I find in providing the benefit of my experience and knowledge to the public at large, is when other attorneys (i.e. competitors) parrot my information and repackage and restate what I have said, in their own “blogs” and “articles”. Professionally, I have no problem with other attorneys accessing the same information as the public at large, and restating the same (or similar) advice concerning the process of filing for Federal Disability Retirement benefits under FERS & CSRS. Good law is just that — good law. Who uses it, how it is used, and what the “totality of the end product” results in, makes all the difference.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Argument by Analogy

Attorneys argue “by analogy” all of the time; cases and decisions from the Merit Systems Protection Board, and language from the Federal Circuit Court of Appeals, provide the fertile fodder for such argumentation.  Thus, such issues as to whether the Bruner Presumption should apply in the case; whether a case is similar to previously-decided Federal Disability Retirement cases; the similarity of fact-scenarios and legal applications — they are all open to argument by analogy.  That is why case-citations are important — even in arguing a Federal Disability Retirement case to the Office of Personnel Management.  Whether and how much influence such legal argumentation can have at the first two stages of the disability retirement application process, may be open to dispute; but cases should never be compiled and prepared for the first or second stage alone; all disability retirement applications should be prepared “as if” it will be denied and will be presented on appeal to the Merit Systems Protection Board.  Such careful preparation serves two (2) purposes:  First, for the Office of Personnel Management, to let them know that if they deny it and it goes on appeal to the Merit Systems Protection Board, they will have to answer to the scrutiny of the Administrative Law Judge; and Second, for the Administrative Law Judge at the Merit Systems Protection Board, to let him or her know that you did indeed prepare the case well, and that your particular Federal Disability Retirement application conforms to the law, and should therefore be approved.

Sincerely,

Robert R. McGill, Esquire