FERS & CSRS Disability Retirement for Federal and USPS Workers: Standards

The existence of a standard constitutes an irrelevancy if the application of it is based upon an unknowable, incalculable methodology.  Standards represent a paradigm which, if implemented, provide for stability and consistency, precisely because one can rely upon the same application in all instances, and indeed, that is what is often defined as “fairness”.

Thus, in sports — if the referee makes all calls based upon a known standard, there is very little to argue with respect to the “rules”; one may, of course, challenge the interpretation of the “facts” and charge that the referee is blind and did not see the play as reality reflected; but no one can argue the minutiae of the standard itself.  In society, and in a civilization governed by rules and accepted procedures of administration, if a standard is disagreed upon, then a democratic method of change is normally considered an appropriate methodology of redefining the lines previously demarcated by the “old” standard.

In preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, it is assumed that the standard which would constitute “fair play” will be one of “preponderance of the evidence”, but the actual implementation of such a legal standard will necessarily depend upon whether the Case Worker at OPM actually understands what that standard means.

It is, ultimately, a low civil “bar” to meet; and when a denial is rendered, the language contained within the denial will often reveal the extent of comprehension on the part of the OPM Case Worker.  Pointing a misapplication of the standard is sometimes a useful tool in taking the Federal Disability Retirement case to the next level — the Reconsideration Stage of the process — but unduly focusing upon the mistakes of the previous Case Worker is often a waste of time.

Balance is the key; application of the correct standard is vital to the working efficiency of a bureaucracy; pointing out a misapplication is why attorneys exist.  They are, ultimately, technicians of written standards.

Sincerely,

Robert R. McGill, Esquire

Medical Retirement Benefits for US Government Employees: The Legal Standards

Recent decisions issued by the Full Board of the U.S. Merit Systems Protection Board — specifically, Henderson v. OPM, decided on January 31, 2012, reestablishes the two general standards of applicable evidentiary approaches in proving a Federal Disability Retirement case, whether under FERS or CSRS.  Whether or not the U.S. Office of Personnel Management will “comply” with the applicable standards as set forth by the MSPB is another question.

Often, the “trickle-down” effect of a legal opinion can take years to accomplish — and by that time, further refinements by the courts and by the MSPB may have made such legal opinions moot, irrelevant or otherwise restrictive in its practical application, anyway.  For the time being, however, the two legal approaches can be generally stated thus:  One must prove, by a preponderance of the evidence in all Federal Disability Retirement cases, either (A)  That certain specific medical conditions prevent one from performing certain specific essential elements of one’s job (somewhat like a 1 – 1 correspondence, or more generally, a medical opinion showing that medical condition X prevents job duties Y because of Z) or (B) as stated previously in Bruner and multiple other cases, there is an “inconsistency” between one’s medical condition (or multiplicity of medical conditions) and the type of positional duties one must engage in to perform the essential elements of one’s Federal or Postal job.

The former criteria to satisfy may be deemed “particularized”; the latter may be seen as a more “generalized” approach.  While there is certainly a conceptual distinction between the two, in pragmatic terms, such a distinction may be without too much difference, if only because doctors will often go back and forth between the two approaches, anyway, in writing a medical narrative report.

The conceptual distinction is not as apparent as one between “explicit” and “implicit”, but certainly the former approach encapsulates a greater specificity of detailing a connection between X and Y, whereas the latter requires the reader or reviewer (i.e., OPM or the Administrative Judge) to think through and analyze the entirety of the issue.  But that life would not be so complicated.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement for Federal and USPS Workers: The Process of Eligibility

The problem with possessing power is that it must be accompanied by truth, validity and rational foundations, if it is to be effective over the long term.  

In filing a Federal Disability Retirement application under FERS or CSRS, there is the process of proving one’s eligibility by meeting the burden of proof, termed as the “preponderance of the evidence“.  A disagreement can occur during the process, in that the Representative from the Office of Personnel Management can deny the Federal Disability Retirement application.  

Such a denial can occur twice at the OPM level — at the Initial Stage of the process, then at the Reconsideration Stage of the process.  OPM possesses the power to approve or deny each Federal Disability Retirement application.  Often, however, the denial itself fails to be accompanied by a rational discourse which strives to meet the high standards that a Federal Agency should always adhere to — guided by the truth and validity of any claims made in a denial letter.  Too often, the discourse which is the basis of the denial merely regurgitates a series of template-like statements, and then the OPM denies the claim.  

Fortunately, however, OPM is not the only Agency which makes the determination during the entirety of the process.  After the second denial, it then loses its jurisdiction over a case, and an appeal can be made to the Merit Systems Protection Board.  

The integrity of the entire process depends upon the independence of the MSPB in reviewing all such cases, and indeed, the Administrative Judges at the MSPB review each case carefully, with an open mind, and with the proper application of the law.  Each Judge must render a decision which contains the rational basis of a decision, based upon precedents and statutory legal underpinnings.  To have the full benefit of the process is indeed the basis of a system with integrity.

Sincerely,

Robert R. McGill, Esquire

Medical Retirement for Federal Workers: The MSPB

The Merit Systems Protection Board is the arena, in a Federal Disability Retirement application, where the issues are taken out of the control of the Office of Personnel Management for an independent review of a Federal or Postal employee’s disability application to obtain the benefit.  In a Federal Disability Retirement application, the Office of Personnel Management is given an opportunity (twice — at the initial stage of the process, then at the Reconsideration Stage) to make the “right” decision (in my view, “right” being an approval of a Federal Disability Retirement application under FERS or CSRS, at least for my clients).  

If that decision is a denial, at both levels, then the applicant has the right and opportunity to file an appeal to the Merit Systems Protection Board.  At that level, by a preponderance of the evidence, the Federal or Postal employee must prove that he or she meets the criteria, under the law, to be eligible for Federal Disability Retirement benefits.  Some de minimus extent of discovery is engaged in; a Prehearing Statement defining the issues and identifying the proposed list of witnesses must be prepared; and, finally, a Hearing is set.  It is the forum in which someone other than OPM will have a fresh opportunity to review the case, and this is a good thing.  Otherwise, only the fox would be guarding the hen house, and under that scenario, there would be very few hens left alive, if any.

Sincerely,

Robert R. McGill, Esquire