Early Retirement for Disabled Federal Workers: The MSPB & Beyond, a Retrospective View

Assume the following hypotethical:  a Federal or Postal employee has filed for Federal Disability Retirement benefits under FERS or CSRS, and has been denied twice by the Office of Personnel Management, has gone before an Administrative Judge for a Hearing at the Merit Systems Protection Board, and now a decision has been made to file a Petition for Review.  

What is the MSPB looking for at a PFR?  

The arguments to be made will focus upon whether or not the Administrative Judge applied “the law” (collectively known for all of the statutes, rules, regulations and prior cases which have touched upon, defined, or otherwise decided upon, any and all issues concerning Federal Disability Retirement) correctly, or whether he/she made an “error of law”.  As such, from a retrospective viewpoint, what should have been done during the Hearing of the matter before the MSPB & the Administrative Judge?  The answer:  where possible, a citation of the applicable cases showing at each juncture of the evidence submitted, that it complied with a specific case and holding of a case.  With that “on the record”, it constrains the Administrative Judge from ruling against the Appellant, but more importantly for purposes of the Petition for Full Review, it establishes the errors of law which the Administrative Judge committed, for purposes of showing reversible errors at the PFR.

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

OPM Disability Retirement: The MSPB Hearing

If you find yourself at the Merit Systems Protection Board trying to prove to an Administrative Judge that your are entitled to Federal Disability Retirements benefits under FERS, and you have already filed a Prehearing Statement, and your witnesses have been approved at the Prehearing Conference, and further, you have outlined all of the issues, set forth the legal basis, and proffered the expected testimony, it is then “showtime”.

It is obviously preferable for an applicant who is filing for OPM Disability Retirement benefits to be represented by a Federal Disability Attorney — if possible, from the inception of the process, through the Reconsideration Stage, to the MSPB.  However, if a Federal or Postal employee finds that, for one reason or another, you simply cannot afford an Attorney, then here are three (3) tips if you find that you are before an MSPB Administrative Judge:  (1)  Have a doctor testify, and make sure that the testimony of the doctor is precise and to the point (2) Make sure that what you prove to the Judge correlates with what you said you would prove in your Prehearing Statement, and (3) Be prepared to make objections to any of OPM’s cross-examination questions.

Finally, remember that the point of making an objection during a Hearing is not to necessarily stop the question or answer, but rather, to preserve the point for a possible appeal.  It is ultimately difficult for a non-attorney Federal Disability Retirement applicant to formulate and prepare for an effective Merit Systems Protection Board Hearing, and further, it would be better if the Federal or Postal employee had an attorney (who is well-versed in Federal Disability Retirement law) throughout the entire process; but one must play the hand one is dealt with, and that old adage is true even with a Federal or Postal Disability Retirement case under FERS or CSRS.

Sincerely,

Robert R. McGill, Esquire

Federal Employee Medical Retirement: The Connection between the Prehearing Statement and the Hearing

When a Federal Disability Retirement application under FERS or CSRS has been denied twice by the Office of Personnel Management, and one appeals the Federal Disability Retirement case to the Merit Systems Protection Board, there comes a point when the scheduling order requires that each side (the “Appellant” or the one who filed the appeal, and the Office of the Personnel Management) file a “Prehearing Statement”.  

Do not underestimate the importance of preparing a Prehearing Statement.  It is not simply a listing of the witnesses to be testifying at the MSPB Hearing; more than that, it is an opportunity to set the issues, to form in the mind of the Administrative Judge the parameters of what will be proven; an opportunity to proffer and plant the seeds of the evidence which will be presented; to undermine and preempt many of the arguments which are used customarily by the Office of Personnel Management; to argue for the Bruner Presumption (even if it does not strictly apply); and to show how, at this preliminary stage of the process, that the upcoming Hearing is really an unnecessary event.  Thus, the Prehearing Statement, as well as the Prehearing Conference, is an important preliminary step in setting the stage for success in a Federal Disability Retirement case.

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

OPM Disability Retirement: Legal Arguments

Whether and to what extent legal arguments in Federal Disability Retirement cases under FERS or CSRS should be made, should rarely be ventured into by non-lawyers.  The boundaries of legal arguments are naturally constrained for lawyers both internally and externally:  internally, because (hopefully) lawyers are trained to recognize that maintaining the integrity of legal precedents is vital to the process, and externally, because all legal arguments are ultimately subjected to the review of a Judge — in the case of administrative laws governing Federal and Postal Disability Retirement, at the first instance by the Administrative Judge at the Merit Systems Protection Board, then potentially at the Federal Circuit Court of Appeals.  When laymen attempt to make legal arguments, there is the added danger of misinterpretation and mis-application of the law, which can further injure the chances of an Applicant filing for Federal Disability Retirement benefits to obtain an approval.  And, finally, such chances for success may be further damaged if it needs to come before an Administrative Judge for review.

Sincerely, Robert R. McGill, Esquire

OPM Disability Retirement: The Process at the MSPB

When a FERS or CSRS disability retirement application has made its way in the “process” to the “Third Stage” — the Merit Systems Protection Board — then I (as an attorney) must be unequivocal in my recommendation:  You need an attorney.  I believe that individuals who file for Federal Disability Retirement benefits should retain a competent attorney at every stage of the process, but there are always considerations of financial ability, and perhaps other considerations, which prevent someone from hiring an attorney at the initial stages of the process. 

At the MSPB level, however, it is important for two (2) reasons (there are many, many other reasons as well, but for brevity’s sake, I choose the main reasons):  1.  It is extremely important to prove by a preponderance of the evidence that you meet the eligibility requirements, to an Administrative Judge, who is both a lawyer and a Judge, and therefore has the knowledge and background to make a reasoned assessment of the evidence presented, and 2.  You must be able to present the case in such a way that, if the Administrative Judge makes an error in his or her decision, you are prepared to appeal the case to the next level.  In order to be able to appeal the case to the next level, you must know the law, be able to present your evidence at the MSPB in accordance with the law, and therefore be able to argue that a decision rendered against you is in violation of the law.  In order to do this, you need an Attorney.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: The "Process" at the Reconsideration Stage

It is important to understand that the “process” of filing for Federal Disability Retirement, when it comes to the Second, or “Reconsideration” Stage, encompasses two factual prisms:  (1)  The application has now been denied (obviously, and for whatever reason — most likely because of “insufficient medical evidence”) and (2) it is the stage in the process prior to an appeal to the Merit Systems Protection Board. 

This dual prism of the stage, while self-evident, is important to keep in mind, because it requires a duality of duties:  A.  It requires (for the Disability Retirement Applicant) a duty to show something beyond what has already been shown, while B.  It requires the Office of Personnel Management to be careful in this “process” of review, because if OPM makes a mistake at this stage, then the likelihood is great that they will be required to expend their limited resources to defend a disability retirement case before an Administrative Judge, and if it becomes obvious that the case should have been decided favorably at the Second Stage, it reflects negatively upon the Agency.  OPM is an agency made up of people (obviously); as such, just as “people” don’t like to look foolish, OPM as an Agency made up of people, does not like to look “badly” or “foolish”.  This duality of factual prisms is important to understand when entering into the Second, Reconsideration Stage of the “process”.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Disability Retirement: The "Process"

In my last writing, I briefly discussed why filing for Federal Disability Retirement benefits is, and must be looked upon as, a “process” as opposed to a mere “filing” with an expectation of an “automatic” approval.  This is because there is a legal standard of proof to be met, based upon a statutory scheme which was passed by Congress, and based upon a voluminous body of “case-law” handed down by the Merit Systems Protection Board and the Federal Circuit Court of Appeals.  With this in mind, it is wise to consider that, because it is a “process” with two administrative “stages” to the process, as well as an Appeal to an Administrative Judge at the Merit Systems Protection Board, then potentially to the Full Board via a Petition for Review, and finally to the Federal Circuit Court of Appeals — as such, each “step” in the process would naturally have a different and “higher” level of the laws governing Federal Disability Retirement. 

Because of this, it is often a frustrating experience for applicants, because a rejection or denial at the First Stage of the process often reveals the utter lack of knowledge by the OPM representative of the larger compendium of case-laws that govern and dictate how disability retirement applications are to be evaluated and decided upon.  Often, the so-called “discussion” of a denial letter is poorly written, meandering in thoughtlessness, and self-contradictory and with unjustifiable selectivity of statements from a medical report or record.  Such poor writing reflects a first-level decision-making process, and can be a frustrating experience upon reading the denial letter.  It is good to keep in mind, however, that the entire application procedure is a “process”, and each level is designed to have a greater level of competency and knowledge in the law.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Thank the Medical Professionals

If not for the doctors, disability retirement would obviously not be a possibility.  Of course, one may make the self-evident statement that being supportive of a Federal Disability Retirement application is simply part of a doctor’s job; and, to some extent, that would be true.  Doctors should indeed be willing to write up supportive medical narrative reports for their patients. 

Nevertheless, it is because of the doctor, the effort expended, the willingness to testify at a Merit Systems Protection Board Hearing, that the Office of Personnel Management even listens, or reverses a prior denial, and grants a disability retirement application.  Especially when a case gets denied twice by the Office of Personnel Management, it becomes crucial to have the cooperation of the treating doctor to testify in an MSPB Hearing.  This is normally done by telephone, thereby making it a minimal imposition upon the doctor’s time.  Indeed, I often only take a total of 30 minutes of the doctor’s time, including preparation and actual testimony, for an MSPB Hearing.  But the very fact that the doctor is willing to testify — to speak to the Administrative Judge directly to give his or her medical opinion — is often enough to convince OPM to change course, and grant the disability retirement benefits. 

Sincerely,

Robert R. McGill