Postal and Federal Disability Retirement: The MSPB & the Window of Opportunity

At the Merit Systems Protection Board, there are multiple critical points of opportunity in which to convince, persuade and otherwise have a discussion with the Office of Personnel Management (OPM) to reverse their earlier denial of a Federal Disability Retirement application.

Remember, however, that this is the arena and playground of lawyers.  While an applicant who has meandered through the intricate administrative process of preparing, formulating and filing for Federal Disability Retirement benefits from the Office of Personnel Management, can certainly survive the administrative procedures as circumscribed by the Merit Systems Protection Board, it is a good idea to have legal representation– obviously, from the very beginning; if not, then to represent one’s interests in rebutting an initial denial at the Reconsideration Stage; if not (again), then to have proper representation before the Merit Systems Protection Board (MSPB).

Whether at a Preliminary Conference to discuss the forthcoming issues, or at a Prehearing Conference — or, in preparing and filing a Prehearing Statement as ordered by the Administrative Judge at the MSPB — opportunities arise for the Federal or Postal worker to submit additional medical evidence which can potentially persuade OPM’s representative to reverse the two previous decisions of denial.  Such opportunities must be carefully embraced.  Yet, often, a Federal or Postal employee who is unrepresented at the MSPB is unaware of the opportunities which arise, at which points, in what circumstances, and the Administrative Judge is bound by duty and position to remain neutral.  Then, of course, there is the Hearing at the MSPB, in the event that OPM does not reverse.  Whatever the circumstances of the Federal or Postal employee who is or will be filing for Federal Disability Retirement benefits under FERS or CSRS, an advocate to represent the Federal or Postal employee’s interests is paramount. Don’t “go it alone”; for, to do so will often only lengthen the process.

Sincerely,

Robert R. McGill, Esquire

Federal Worker Disability Retirement: MSPB & Prehearing

When a Federal Disability Retirement case has been denied by the Office of Personnel Management at the Initial Stage of the application process, and then again at the Reconsideration Stage of the administrative process, then it must be appealed to the Merit Systems Protection Board.  At that stage, the applicant (with the help of his or her attorney) must meet some crucial dates.  

While the Administrative process of having a Hearing before the Merit Systems Protection Board is fairly straightforward, once the Prehearing Statements are filed, it is important to participate in the Prehearing Conference with the Administrative Judge.  At the Prehearing Conference, it is important to define and limit the issues which will have to be proven at the Hearing of the case.  Issues such as accommodations and even the extent of the medical conditions which impact one’s inability to perform the essential elements of one’s job, can be clearly defined.  The individual (but more likely the attorney — because at this level, it is helpful to have the guidance of an attorney) should be very familiar with entirety of the Agency file (a copy of which OPM is required to provide after an appeal is filed with the MSPB).  This way, during the conversation with the Administrative Judge, one can say:  “Yes, Your Honor, that is already proven by document at Tab ____ of the Agency file, and need not be re-proven at the Hearing of the case.”  As with everything in life, preparation, preparation, preparation…

Sincerely,

Robert R. McGill, Esquire

Early Retirement for Disabled Federal Workers: The Appeals

While it is often stated that a Federal Disability Retirement application has three (3) stages to the process, there are additional appellate stages which must be considered, and certain additional steps and actions must be undertaken, in order to preserve the viability of the final two stages of the process.  The initial three stages are comprised of the (A) Initial Application Stage of the process in preparing and filing for Federal Disability Retirement benefits under FERS & CSRS; then (B) if it is denied at the Initial Stage, there is the Reconsideration Stage, where one may submit additional medical documentation and legal arguments, and finally (C) an appeal to the Merit Systems Protection Board, which takes the Federal Disability Retirement application out of the control and hands of the Office of Personnel Management, and allows for an Administrative Judge at the MSPB to hold a Hearing and make a determination.  

The two additional stages of the process for Federal and Postal workers who have filed for Federal Disability Retirement benefits, are:  (1)  a Petition for Full Review (which I recommend should be taken, in the event of a further denial by the Administrative Judge at the MSPB Appeal) and (2) the U.S. Court of Appeals for the Federal Circuit (which can be filed with directly after being denied at the MSPB level, skipping over the Petition for Full Review).  The last two stages of the process — the Petition for Full Review and the U.S. Court of Appeals for the Federal Circuit — will not consider any “new evidence” (except in some rare instances), but will be a review as to whether any error of law occurred.  As such, all of the previous steps of the process would be reviewed, and that is why at each and every step, it is important to know what is important in preserving one’s right to an appeal, what is a basis for an appeal, etc.

Sincerely,

Robert R. McGill, Esquire

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 or CSRS, 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 & Postal Service Disability Retirement: The Level of Objectivity

I was trained in Philosophy, first; obtained my undergraduate degree in Philosophy; then went on to graduate school to study Philosophy.  Somewhere along the line, I decided to switch lanes and go to law school.  However, the training I received in philosophy — of symbolic logic; of the analytical discipline of evaluating the logical consistency, force, soundness and validity of argumentation and methodology of argumentation, has remained with me throughout my legal career.  In recent years, I have found that logic, validity, soundness of arguments, and consistency of argumentation, has become a rare breed.  Whether this has more to do with a greater lack of rigorous education, or the belief that there is little to distinguish between “objectivity” and “subjectivity”, I do not know.  I do know, however, that there remains, even today, a sense of the “integrity” of an argument.  An argument’s integrity is found in an objective, dispassionate description of a case. 

That is the role of an attorney — to give the narrative of the Federal Disability Retirement applicant under FERS & CSRS a sense of proper context, a picture of objective validity, and a substantive presentation of the issues which are relevant:  medical, life, impact, occupation, and the intertwining of each issue with the others, without undue and over-reaching emotionalism which can often undermine the very integrity of the narrative presentation.  

Sincerely,

Robert R. McGill, Esquire