Postal and Federal Disability Retirement: The Beast of Burden

The burden is undertaken by those have little choice in the matter, but who willingly submit to the responsibility and obligation.  Traditionally, the “beast of burden” (other than being a Rolling Stone song) refers to a somewhat-domesticated animal, perhaps a donkey or an ox, who must bear the weight of man’s work.

In law, the “burden” is one of proof — of the affirmative obligation to present one’s facts, persuasive argumentation based upon such facts, and the application of the relevant law which supports both the facts and the arguments.  The “other side” in the litigation has no burden at all, and can simply sit and do nothing, if he or she so chooses, and see whether or not the plaintiff, the appellant or the Federal Disability Retirement applicant has submitted sufficient proof such that he or she has met his/her burden of proof.

As the weight placed upon a beast of burden is often heavy and demanding, so in a similar vein the litigant who has the burden of proof should always expect to exceed what is “necessary” in any given case.  For the Federal or Postal employee who is filing for Federal Disability Retirement benefits through the U.S. Office of Personnel Management, whether under FERS or CSRS, it is indeed a heavy burden to bear in order to meet the legal criteria of a Federal bureaucracy who has the unmitigated power and authority to approve or deny.

The burden of proof — it is as heavy as that which we place upon a beast of burden, and the weight of such responsibility can overwhelm us, lest we have the reserve of strength to plod onward.

Sincerely,

Robert R. McGill, Esquire

Postal and Federal Disability Retirement: The Agency & the Burden of Proof

In a Federal Disability Retirement case, submitted to the U.S. Office of Personnel Management, whether under FERS or CSRS, the burden of proving one’s medical inability to perform one or more of the essential elements of one’s job, always remains with the individual Federal or Postal applicant.

Certainly, there are actions by the agency which may add to such proof (e.g., declaring that the Federal or Postal worker is “not fit for duty” will further concretize an assessment made by a third party; or initiating a separation from Federal Service based upon one’s medical inability to perform the essential elements of the job will trigger the Bruner Presumption, which then invokes a rebuttable presumption and shifts the “burden of production” (note that it is not the shifting of the “burden of proof” — a conceptual distinction important to recognize) over to the U.S. Office of Personnel Management.

Waiting for one’s agency to act upon anything is, however, a very dangerous venture to begin with; thinking that one’s own agency will provide the proof necessary to establish one’s eligibility for Federal Disability Retirement benefits would not only be dangerous, but foolhardy.  For, at its most fundamental level, the fact that the very entity which makes a decision on a Federal Disability Retirement application (OPM) is one which is separate and independent from the agency for which one works, creates a chasm which only further magnifies the inherent problem.

OPM pays little to no attention to what the agency does — except, perhaps, when the agency attempts to directly confront and challenge a Federal Disability Retirement application.  Otherwise, don’t look for help from one’s agency (generally speaking) when one is filing for OPM Disability Retirement benefits; such unfounded reliance will only disappoint, at best.

Sincerely,

Robert R. McGill, Esquire

Postal and Federal Disability Retirement: And the Question is …

The responsive statement often given is:  Federal Disability Retirement is not a matter of merely filling out forms; if that were the case, anyone should be able to do it without an attorney.  So, as in many gameshow forums, what is the question?  Filing for regular retirement, or even early retirement, is a matter of filling out the proper and standard forms.

Filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, while submitted to the identical agency (OPM) for “processing”, is a matter of proving one’s case.  In order to prove one’s case, one must gather the substantive evidentiary documents; compile the relevant materials; make the proper “connections” and create the “nexus”; make the compelling and relevant legal arguments; and, yes, “fill out forms”. However, this latter act of filling out standard forms, as a prerequisite, while a necessary component of the entire administrative process, is not a sufficient act which constitutes a demand for an approval.

Thus, for a regular or early retirement, one may well argue that once the forms are filled out, one has satisfied both the necessary and sufficient components of what constitutes fulfillment of all obligations required for admission into the fraternity of Federal Disability Retirement annuitants.

For Federal Disability Retirement benefits, however, the additional requirement of proof by a preponderance of the evidence must first be satisfied.  And for that, one must play the gameshow format of answering the critical, million-dollar question:  What satisfies the standard of proof in order to qualify for Federal Disability Retirement benefits from OPM, whether under FERS or CSRS?  The answer:  It has already been given, only in a form of negation:  Federal Disability Retirement is not a matter of merely filling out forms.

Sincerely,

Robert R. McGill, Esquire

Federal Disability Retirement: OPM’s Standard of Proof

In reviewing a Federal Disability Retirement application under CSRS or FERS, the mandate of burden is determined both by statute and regulation, and the Merit Systems Protection Board reiterates the burden of proof in each of its decisions — that of proving one’s case by a “Preponderance of the Evidence“.  

This is a relatively low standard of proof — of showing that one is eligible and entitled to Federal Disability Retirement benefits under FERS or CSRS based upon a showing that, with all of the evidence considered, it is more likely than not that the Federal or Postal employee has shown that he or she cannot perform, because of one or more medical conditions, one or more of the essential elements of one’s job.  

There is often a question as to whether this same standard of evidentiary showing applies to the Office of Personnel Management, and this question is posed because of the statements made in many of the denial letters (which then prompts a necessary request for Reconsideration, or an administrative appeal to the 2nd Stage of the process; or, if denied at the 2nd Stage — the Reconsideration Stage — then an appeal to the Merit Systems Protection Board) issued by the Office of Personnel Management, to wit:  The evidence you submitted did not show a “compelling” reason why you could not…; The medical evidence did not show that you had to be “excluded from the workplace completely”; and other statements which seems to require a higher showing than that of “preponderance of the evidence“. 

OPM is supposed to follow the same standard of proof — that of preponderance of the evidence.  Sometimes, they need to be reminded of it.  

However, inasmuch as the safety mechanism for review of an improper standard is an appeal to the Merit Systems Protection Board, such a reminder often must take the form of an appeal.  Without the appeal basis, the Office of Personnel Management can ignore the relevant statutory burden of proof.  But then, that would not be the first time that an agency acted in a non-compliant manner.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Workers: Criteria and Proof, II

In preparing, formulating and filing a Federal Disability Retirement application under either FERS or CSRS, it is important to pause in the beginning stages of the process, prior to “going down the road” of the long and difficult administrative process of preparing a Federal Disability Retirement application, to consider the conceptual distinction between a legal criteria and the proof which is needed in order to satisfy the eligibility requirements of the legal criteria.  

In this day and age when the “culture at large” believes that an individual who speaks the loudest, uses words which appear in form articulate, and in cadence of some eloquence, the reverberations to the legal community have been felt both qualitatively and quantitatively.  Lawyers are supposed to be word-crafters; lay individuals who have some inkling of “the law”, may have some competence in the legal arena, but in order to survive the multiple pitfalls which are inherent in any area of law, it is wise to consider “that which” must be proven, as opposed to the proof itself.  

It is thus important, in preparing to formulate a Federal Disability Retirement application under FERS or CSRS, to review the statutes which govern the eligibility criteria for Federal and Postal employees; to read through the regulations; to research the case-laws as interpretive devices which can expand, constrict or regurgitate the statutory authority as written, as handed down by Administrative Judges at the Merit Systems Protection Board; then, upon a thorough and competent understanding of the legal criteria applicable in a Federal Disability Retirement application under FERS or CSRS, to begin to gather the “proof” which is necessary in order to satisfy and meet the legal criteria.  

Only upon an understanding of the distinction between criteria and proof can one then proceed to gather the latter in order to satisfy the former.  Early distinctions made can clarify and avoid later confusions encountered; or, as the age-old dictum goes, being penny wise is preferable to ending up pound foolish (or some variation thereof).

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Medical Disability Retirement: You Still Have to Prove your Case

In preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS, many Federal and Postal employees operate under the misguided presumption that, if the Agency has acknowledged one’s medical conditions, cannot accommodate the Federal or Postal employee, and explicitly concedes that the disabled Federal or Postal employee cannot perform one or more of the essential elements of one’s job, that an approval of the Federal Disability Retirement application is nothing more than a mere formality beyond its submission.  

Thus, for example, the scenario as painted herein might include the Flight Surgeon’s determination for the Air Traffic Control Specialist who works for the FAA, who disqualifies the ATS for either his/her medical condition, or the medication regimen that he/she is taking; or it may involved the Postal Worker who is sent home pursuant to the National Reassessment Process; or it may be a Federal or Postal worker who has been administratively separated from Federal Service based upon his or her medical inability to perform the essential functions of one’s job, and thereby is entitled to the Bruner Presumption.  

All of these case-studies are “nice”; they are promising, and there is obviously substantive and useful evidence that the Federal or Postal employee is probably eligible for Federal Disability Retirement benefits — but what the Agency does or says is not enough.  The Federal or Postal employee must still meet the burden of proof and prove by a preponderance of the evidence that he or she is eligible and entitled to Federal Disability Retirement benefits under FERS or CSRS.  

The Office of Personnel Management is an independent agency, separate and apart from the other Federal Agencies or the Postal Service.  What determinations are made by the other agencies will not persuade OPM of anything; in a Federal Disability Retirement case, you must prove your case of medical eligibility, above and beyond what the Agency says or does.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Government Employees: Preparing the Case

As in everything in life, preparation is the key to a successful endeavor.  In preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS, the Federal or Postal employee under FERS or CSRS has the affirmative burden of proving by a preponderance of the evidence that one is eligible and entitled to Federal Disability Retirement benefits from the Office of Personnel Management.  

By “affirmative” is simply meant that it is not the responsibility of the Agency, the Office of Personnel Management, or any other bureaucracy to obtain and submit the necessary evidence, documentation or forms to meet the burden.  While it is true that the Agency must complete certain forms, it is still the responsibility of the Federal or Postal employee who is filing for Federal Disability Retirement to request their completion.  

Further, by “burden of proof” is meant that there is a certain set of legal criteria that the Federal or Postal applicant must meet in order to become qualified for Federal Disability Retirement benefits under FERS or CSRS.  Unlike Social Security, where the Agency itself will contact the doctors, set up medical reviews and consultative examinations with appointed doctors in order to establish the extent of one’s medical conditions, etc., under the legal criteria set up by the Office of Personnel Management, it is entirely up to the Federal or Postal employee to gather, obtain and submit the evidence to meet the burden of proof.  

That places a significant responsibility upon the potential applicant, and in order to meet that burden, it is well to take the time to prepare each and every aspect of a Federal Disability Retirement application, and not just blindly leave a form with a doctor, or anyone else, hoping for the best.  To prepare means time; expending the time at the forefront will often save time in the end.

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

FERS & CSRS Disability Retirement for Federal and USPS Workers: Meeting the Burden of Proof

The difference between “telling” and “showing” is a distinction which is often made in distinguishing between bad literary writing and good literature; such a distinction is applicable in practicing effective law, also.  

In preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS, it is important to meet the burden of proof in order to show the Office of Personnel Management that one is entitled to Federal Disability Retirement benefits under FERS or CSRS.  To “meet the burden of proof” is to show, by a preponderance of the evidence, that one has met all of the legal criteria for such eligibility (e.g., that one has a medical condition; that the medical condition prevents one from performing one or more of the essential elements of one’s job; that certain identified elements of the job cannot be accommodated, etc.).  

The key is that one must “show”, and not merely tell, and that is where the distinction between effective and ineffective formulation of a Federal Disability Retirement application presents itself.  To merely assert that “X is a fact” and then to declare that the burden of proof has been met, is an ineffective methodology of formulating one’s argument.  On the other hand, to describe the factual underpinnings, then to further describe how the natural conclusion from such facts lead to the inescapable conclusion that a legal criteria has been met, is to provide for an effective argument.

The Office of Personnel Management is open to persuasion; it must merely be shown the way through descriptive analysis of the medical facts and conclusions which must be met, in meeting the legal burden of proof in a Federal Disability Retirement application under FERS or CSRS.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Burden of Proof

In preparing, formulating and filing a Federal Disability Retirement application under FERS & CSRS, one is often asked (and should also ask of one’s self) the following question:  What does it take to be eligible?  What proof proves my case?  How much proof must I submit (quantity) and is the proof I submit sufficient (quality)?  All of these questions fall under a generic rubric in law, termed as “burden of proof“. 

Every legal process — and filing for Federal Disability Retirement benefits under FERS or CSRS is no different — applies a legal standard:  a set of criteria in determining whether or not a Federal or Postal Worker is eligible for — qualifies for — Federal Disability Retirement benefits under FERS or CSRS. 

In applying a statutory set of criteria, there is the general application of what constitutes, or meets the needs of, the evidence, documents, and proof that is submitted for review.  The overriding standard that is supposed to be applied for determining the process, is a standard of law called, “Preponderance of the evidence.”  It is a relatively low standard used in civil law — where, if the proof submitted shows that it is more likely so than not so, then one has met “by a preponderance of the evidence” that a Federal or Postal employee is entitled to Federal Disability Retirement benefits. 

Does this standard apply at the administrative level — at the Office of Personnel Management?  The answer is “Yes”, but not necessarily consciously.  One only effectively argues that the standard of proof has been met when one encounters a Judge — at the Merit Systems Protection Board.  But, nevertheless, OPM is supposed to follow “the law” and the burden of proof, and it is simply one more argument that one can, and should, make to the Office of Personnel Management when filing for Federal Disability Retirement benefits under either FERS or CSRS.

Sincerely,

Robert R. McGill, Esquire