Disability Retirement for Federal Government Employees: Timing the Legal Tools

In any administrative procedure, the use of legal tools and citations may be of limited efficacy for the process itself; it is, however, building a foundation for future application, and to that extent it provides a fair warning to the agency.

Inasmuch as any portion of obtaining an entitlement or meeting an eligibility requirement engages the applicant with a faceless bureaucracy — and one which recognizably is filled with non-lawyers, clerks, etc. — there is always the question as to why an attorney is necessary at the administrative level of adjudication.

The reason is simple:  the non-lawyer governmental worker, while perhaps not fully appreciative of the legal citations which may be argued in a particular case, is nevertheless aware of the consequences of failing to acknowledge the validity of such references.  Being audited and finding that a particular case worker has a high percentage of cases denied, then reversed on an appeal to the Merit Systems Protection Board, has an impact upon the agency worker.

Furthermore, building a foundation for future reference before an Administrative Judge — where the Judge turns to the agency’s representative and asks, “Well, how about Case X, which has already been cited by the Appellant?” — can be quite effective and often short-cuts the entire process.

For Federal and Postal Workers who are attempting to obtain Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, the effective use of legal tools and citations is crucial at all levels — if only to warn OPM of the consequences of having to go before an MSPB Judge for further adjudication of the case.

Sincerely,

Robert R. McGill, Esquire

Federal and Postal Disability Retirement: Beyond the MSPB

With certain notable exceptions (e.g., documents which could not be obtained prior to or during the Hearing; an SSDI approval which was awarded after the close of the record, etc.), the Hearing which is set for the Merit Systems Protection Board (better known by its acronym, the “MSPB”) is the time and place to prove by a preponderance of the evidence that a Federal or Postal employee is eligible to meet each of the legal criteria in a Federal Disability Retirement case.

MSPB Hearings for Federal Disability Retirement applications are performed telephonically; but beyond the time to submit all additional medical documentation and have any witnesses testify, it is the time to set the stage for a future Petition for Review (PFR) or an appeal to the U.S. Court of Appeals for the Federal Circuit. Any legal issues concerning the eligibility criteria, accommodations, sufficiency of medical documentation, etc., needs to be argued at this stage of the process, in order to be able to make the argument later that the Administrative Judge committed “legally reversible” errors in his or her Initial Decision on the case.  As with anything well-built, a solid foundation must be prepared, and in the arena of legal battles, the introduction of clear legal precedent is what establishes the foundation for a future appeal.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement for Federal and USPS Workers: The MSPB

The Merit Systems Protection Board (better known by its acronym, the “MSPB”) is the third stage of the administrative process in attempting to obtain Federal Disability Retirement benefits under FERS or CSRS.  By this Stage, while the Office of Personnel Management has been both the “judge and jury” for determining one’s eligibility for Federal Disability Retirement benefits, the case is then handed over to an Administrative Judge to be the arbiter of such determination.

While it is advisable for a Federal or Postal Worker to obtain a FERS/CSRS Disability Attorney from the start of the administrative process, it is of even greater importance to consider obtaining proper legal representation before proceeding down the path of the MSPB.  This statement of advising any Federal or Postal employee to obtain proper representation at the MSPB is made for several reasons, not the least of which includes the following:  The MSPB is the last “stage” of the process in which a Federal or Postal employee who is seeking to obtain Federal Disability Retirement benefits may submit evidence in order to prove one’s case (with some special exceptions); any basis for an appeal, upon the chance that the Administrative Judge rules against you, must be established during the Hearing of the case at this stage; and since this stage is the arena of “the law”, it is important to be familiar with the most recent case-laws which govern Federal Disability Retirement.  The MSPB is not a place to feel one’s way through; it is the playground where the “grown-ups” play.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement for Federal and USPS Workers: The MSPB

The entire process of preparing and filing a Federal Disability Retirement application under FERS or CSRS should be accomplished with the view that it will end up at the Merit Systems Protection Board, being heard by an Administrative Judge.  This is why much thought and preparation should foreshadow each application.  There should be a running theme throughout the narrative which reveals the individuality of a person’s medical condition and how that medical condition impacts his or her ability/inability to perform one or more of the essential elements of one’s job. 

Truth should always be the guide; however, truth is always influenced by perspective.  It is the “perspective” of the Office of Personnel Management, in all Federal Disability Retirement cases under FERS & CSRS, to carefully scrutinize the narrative of the medical condition, impact upon the job, and the ability and inability to have the necessary connection between the two.  It is the perspective of the supervisor who will render his or her opinion based upon a limited knowledge and observation.  Perspectives must be questioned.  Thus, there is the opportunity for cross-examination at the MSPB level, which must be engaged in artfully and with care.  Each individual believes that his or her Federal Disability Retirement application is a “sure thing” at the First Stage of the process — until the reality sets in.  The reality, of course, is that every application must be prepared as if it is going to the MSPB, because it well might, and often does.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: Time

Time is of the essence in almost everything we do.  There are timed deadlines for filing a Federal Disability Retirement application; a great amount of time is taken in the bureaucratic processing of the application; greater time is taken by the Office of Personnel Management in reviewing, analyzing and deciding upon a Federal Disability Retirement application; appeals to the Merit Systems Protection Board require time within which one must prepare a viable case before an administrative judge, etc.  Time is a presence in every aspect of our lives.  But within that framework, a comparative analysis of time should always be taken into consideration.  To “rush” the preparation of a disability retirement packet is often penny wise but pound foolish; care and patience should always be taken, both in the writing, preparation and filing of anything to be submitted to a Federal bureaucracy; the Office of Personnel Management is no different.  Rushing something in order to “save time” is often counterproductive.  To take the time to prepare an excellent disability retirement packet will actually save time in the long run.

Sincerely,

Robert R. McGill, Esquire