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

Federal Employee Medical Retirement: OPM and the Law

The Office of Personnel Management is the agency which determines all applications for Federal Disability Retirement, whether under FERS or CSRS (or CSRS-Offset).  In making such a determination, a standard of “objectivity” is expected by each and every Federal and Postal employee, in making such a determination.  

The Office of Personnel Management (OPM) applies a set of criteria as determined by statute and further expanded upon by the Merit Systems Protection Board and the Federal Circuit Court of Appeals.  The entirety of “the Law” which governs and guides the eligibility and entitlement to Federal Disability Retirement benefits is thus based upon a patchwork of legal holdings, statutory language, and cases and legal opinions which have “evolved” over the years.  From this patchwork of laws, one expects a “representative” from OPM to apply it fairly, objectively, and without any arbitrariness or capricious intent.  Yet, since the individuals applying “the Law” at OPM — at least at the first and second “Stages” of the process — are not themselves lawyers, how realistic is this?  

Ultimately, legal arguments in persuading OPM to approve a case are best made when they are concurrently explained — explained in their logic, their force of argumentation, and in their applicability to a given issue.  Simply declaring that “the Law” applies will not do; one must sensitively guide OPM to understand the very laws which govern their behavior.

Sincerely,

Robert R. McGill, Esquire

FERS Disability Retirement: Learning from Experience

The problems inherent in filing a Federal Disability Retirement application under FERS or CSRS are multi-fold and multi-tiered.  Even today, after years and years of practicing in this particular area of law, there is rarely a day which goes by that I haven’t learned something new — whether a slight wrinkle in OPM Disability Retirement law; whether in a nuance of a description of a particular medical condition; or in simply how a doctor has described a specific condition and its particular and unique impact upon a patient.  Experience comes from making mistakes; mistakes can be human, technical, or a combination of both.

Unfortunately, for the Federal or Postal worker who is filing, or contemplating filing, for Federal Disability Retirement benefits under FERS or CSRS, the process itself is essentially a “one-time” endeavor.  Yes, a person can theoretically file, then refile at a later time (side-stepping the issue of res judicata, which can, in most instances, be gotten around); but for the most part, a Federal or Postal employee who is filing for Federal Disability Retirement benefits is doing it once, and only once.

As such, it is NOT the time to obtain “experience” — i.e., there is little room for “learning” from “mistakes”.

There is “good experience” and “bad experience”, but both are experiences nonetheless.  In filing an application for Federal or USPS Disability Retirement benefits, however, it is the former which needs to be experienced, and not the latter, and in such a filing process, there is indeed a difference between the two.

Sincerely,

Robert R. McGill, Esquire