Federal Worker Disability Retirement: MSPB & Prehearing

When a Federal Disability Retirement case has been denied by the Office of Personnel Management at the Initial Stage of the application process, and then again at the Reconsideration Stage of the administrative process, then it must be appealed to the Merit Systems Protection Board.  At that stage, the applicant (with the help of his or her attorney) must meet some crucial dates.  

While the Administrative process of having a Hearing before the Merit Systems Protection Board is fairly straightforward, once the Prehearing Statements are filed, it is important to participate in the Prehearing Conference with the Administrative Judge.  At the Prehearing Conference, it is important to define and limit the issues which will have to be proven at the Hearing of the case.  Issues such as accommodations and even the extent of the medical conditions which impact one’s inability to perform the essential elements of one’s job, can be clearly defined.  The individual (but more likely the attorney — because at this level, it is helpful to have the guidance of an attorney) should be very familiar with entirety of the Agency file (a copy of which OPM is required to provide after an appeal is filed with the MSPB).  This way, during the conversation with the Administrative Judge, one can say:  “Yes, Your Honor, that is already proven by document at Tab ____ of the Agency file, and need not be re-proven at the Hearing of the case.”  As with everything in life, preparation, preparation, preparation…

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: More on the MSPB Stage

While I believe that an attorney versed in the Federal Disability Retirement process can be helpful at all stages of the process, at the Third Stage — the Merit Systems Protection Board stage — the input, assistance, and representation of an experienced attorney can be invaluable.  This is essentially the “last” stage of the three-stage process.  Of course, there are two additional stages, but both concern an appeal — in the event that the Administrative Judge rules against the disability retirement applicant at the MSPB.

During the process at the MSPB, the Appellant will have what is called a “Prehearing Conference”.  At such a conference (held over the telephone), the Judge will go over with both parties (the applicant and the OPM representative), certain basic essentials about the law, to include the standard of proof, witness list, preliminary legal matters, etc.  What is important at such a Prehearing Conference is to carefully listen to the Judge.  As each Judge is human, and thus different, it is important to listen and carefully be attentive to what the Judge is looking for.  If more medical documentation is needed, exactly what is the Judge looking for?  If there is a concern about a certain legal issue — say, the issue of accommodation — what exactly is the Judge concerned about?  By being attentive to the questions of the Judge, and fashioning the Hearing to address those concerns, the applicant greatly enhances his or her chances of winning at this crucial stage of the process.

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