Disability Retirement for Federal Government Employees: Timing the Legal Tools

In any administrative procedure, the use of legal tools and citations may be of limited efficacy for the process itself; it is, however, building a foundation for future application, and to that extent it provides a fair warning to the agency.

Inasmuch as any portion of obtaining an entitlement or meeting an eligibility requirement engages the applicant with a faceless bureaucracy — and one which recognizably is filled with non-lawyers, clerks, etc. — there is always the question as to why an attorney is necessary at the administrative level of adjudication.

The reason is simple:  the non-lawyer governmental worker, while perhaps not fully appreciative of the legal citations which may be argued in a particular case, is nevertheless aware of the consequences of failing to acknowledge the validity of such references.  Being audited and finding that a particular case worker has a high percentage of cases denied, then reversed on an appeal to the Merit Systems Protection Board, has an impact upon the agency worker.

Furthermore, building a foundation for future reference before an Administrative Judge — where the Judge turns to the agency’s representative and asks, “Well, how about Case X, which has already been cited by the Appellant?” — can be quite effective and often short-cuts the entire process.

For Federal and Postal Workers who are attempting to obtain Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, the effective use of legal tools and citations is crucial at all levels — if only to warn OPM of the consequences of having to go before an MSPB Judge for further adjudication of the case.

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

FERS & CSRS Disability Retirement for Federal and USPS Workers: Knowing the Law

When an OPM Disability Attorney cites the law as a supporting, authoritative basis upon which a Federal Disability Retirement application (in part) should be approved, one hopes that the proper and relevant legal authorities are “matched” with the factual and medical issues which are presented.  When a lay, non-attorney applicant for Federal Disability Retirement application under FERS or CSRS attempts to refer to, cite, or otherwise “tie in” legal authorities as supporting authority, it is more often the case that the law is inappropriately used, referred to, and misquoted.  This is not necessarily because the law is so esoteric a discipline that non-attorneys cannot “use” the law for one’s advantage; rather, what is often the case is that too much “cutting and pasting” occurs, as opposed to actually reading the cases, statutes, and regulatory references, and attempting to first understand the import, relevance and significance of the laws, statutes, legal opinions and regulations surrounding, supporting, and directly impacting upon Federal Disability Retirement issues.  On the other hand, if you are going to file a Federal Disability Retirement application, and you decide to cite the law as supportive authority, take a word of wisdom from an ancient adage:  An individual who represents himself more often than not has a fool for a client.

Sincerely,

Robert R. McGill, Esquire