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

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

Federal and Postal Disability Retirement: Understanding the Doctor

A question I often ask the treating doctor at the end of a Hearing before an Administrative Judge at the Merit Systems Protection Board (obviously for Disability Retirement benefits under FERS & CSRS) is:  Do you have an opinion as to whether Mr. X/Ms. Y is a malingerer? The reason I ask such a question is to establish in the mind of the Administrative Judge, that after all of the clinical examinations, the treatment modalities, the diagnostic testing, etc., does the doctor have a personal opinion about the individual who is seeking to obtain Federal Disability Retirement benefits? 

Obviously, there are multiple questions which I ask as a follow-up; and, indeed, the question as to the status of the client/applicant requests a professional opinion about the patient — but implicit in that question is also a rather personal one.  It goes to the heart of who the patient/applicant is, and what the doctor believes about this particular applicant/patient.  For, to resolve any doubts about the underlying motive of the patient is not only important to the Administrative Judge in a Federal Disability Retirement application; it is equally important that the doctor is comfortable in his own mind, as to the clear and honest intention of his patient.  Conveying that comfort from the voice of the treating doctor to the ears of the deciding Judge, is no small matter.

Sincerely,

Robert R. McGill, Esquire