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

FERS & CSRS Disability Retirement for Federal and USPS Workers: Proving the Standard

In approaching how to prove a Federal Disability Retirement case, whether under FERS or CSRS, it is best to try and meet a higher standard of proof, and not be lulled into thinking that because the applicable standard of proof is the lower “preponderance of the evidence” standard, that the mere necessity of proving one’s case is reflective of that standard.

Standards of proof on a theoretical level are for academics; in the practical world of law, one must actually persuade and convince the individuals who are authorized to approve a Federal Disability Retirement application, that the Federal Disability Retirement application merits an approval.  This would include the personnel at the Office of Personnel Management, as well as an Administrative Judge at the Merit Systems Protection Board.

One can shout all one wants that the standard of proof needed in a Federal Disability Retirement case is the “preponderance of the evidence,” and that all that is necessary to meet that standard is that X is more likely to be true than not.  However, in the “real” world of law, people, and persuasive authority, one’s case should always strive to meet the highest standard — that it is so persuasive that the deciding authority has no choice but to approve the case.  For, as the higher standard logically subsumes all lower standards, the inverse is not true, and the interpretation of what constitutes meeting the “preponderance of the evidence” test can have a wide margin of error.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Government Employees: OPM and the 7-Part Criteria

In any denial of a Federal Disability Retirement application under FERS or CSRS, the Office of Personnel Management incessantly refers to their 7-part criteria of eligibility, in making their determination as to the legal viability of a case.

The criteria, as stated, can be both helpful, as well as result in a negative determination, for multiple reasons.  To the extent that it extrapolates and extracts from the relevant Code of Federal Regulations, it minimally states the fundamental legal requirements for eligibility of a Federal or Postal employee who is filing for Federal Disability Retirement benefits.

However, because such a basis only extracts from the originating statutory foundation for eligibility, what it completely ignores is the continually evolving cases which clarify, interpret and define the very terms which constitute the criteria.  To that extent, OPM’s adherence to the strict and narrow application of the original “law” can often result in a negative determination, precisely because such an application ignores the subsequent clarifications which have evolved and progressed from various cases which have been litigated, both in the Federal Circuit Courts as well as at the Merit Systems Protection Board level.

Beware of the 7-part criteria; if followed, it can backfire; if not followed, it can backfire.  The 7-part criteria is a Catch-22 in sheep’s clothing.

Sincerely,

Robert R. McGill, Esquire

Medical Retirement from the Office of Personnel Management: Legal Criteria

There is “The Law” — the originating, statutory authority which is passed by Congress — then, the compendium of the entirety of the legal arena, which includes decisions handed down by Administrative and Federal Judges, which comprise the expanding and evolving interpretation, clarification and extension of “The Law”.  

Unfortunately, in making its decision on an Application for Federal Disability Retirement benefits under FERS or CSRS, the Office of Personnel Management constrains itself (and its knowledge of the law) to a template based upon a “7-part criteria” which is extrapolated from the Code of Federal Regulations.  

This 7-part criteria is a simplistic and misleading application of the law.  It is not so much that it is an “error” on the part of the Office of Personnel Management to apply such a criteria; rather, it is that, in evaluating and determining the sufficiency, viability, and meeting of the standard of proof of “preponderance of the evidence” of a Federal Disability Retirement application under FERS or CSRS, it simply does not go far enough.  Because the 7-part criteria fails to include the interpretive evolution of the entirety of the laws governing Federal Disability Retirement, it fails by excluding many Federal Disability Retirement applications which are based upon legal criteria which fall outside of the delimited circumference and parameters of what OPM has set forth. 

In short, they are “behind the times” in many instances, and so when a denial is based upon a misapplied criteria, it is important to point out to OPM that X law applies in particular case Y — where “X” is outside of the scope or knowledge of the Office of Personnel Management.

Sincerely,

Robert R. McGill, Esquire