Legal Landmines in Federal Disability Retirement Law

— The Law is a web of words, understood by few, practiced by some, diversely impacting many, applying to all, and protecting a universal principle: an orderly society which ensures freedom.

— Anonymous Lawyer

Law is an evolving process. Statutes are merely the beginning point. Thereafter, cases are tried before Judges, and the evolution of the law, within the context of a particular sector of law, begins to unfold. As the evolution of law begins to unfold, the complexity of the legal process becomes more and more intricately intertwined. A body of law develops and grows. Yes, to a great extent, lawyers create the complexities which grow within that body of law. The intersecting and intertwining cases address multiple issues which have been “litigated” through the judicial process of putting on a case before a Judge. For Federal Employee Disability Retirement issues, the body of law is created through the Hearing Process heard before an Administrative Judge at the Merit Systems Protection Board.

The complexities which develop over time become the potential “landmines” in any area of law. For those Federal and Postal Employees who are considering applying for Federal Disability Retirement benefits, such legal landmines must be carefully negotiated, maneuvered about, and where necessary, avoided. There are many issues in the body of Law involving OPM Disability Retirement, and it is well to be aware of some of them.

Here is a short compendium of some intertwining and intersecting issues, extracted from a recent, illustrative case, addressing just a small portion of the greater “body of Law” comprising the Federal Employee Disability Retirement issues:

  • “Situational Disability” issues have always been a difficult landmine to negotiate around. Often, Federal and Postal employees are subjected to multiple on-the-job stresses, from sexual harassment from predatory co-workers to supervisors with egocentric vendettas; from workloads and work hours consisting of unreasonable demands; and numerous other potential contexts which can be perceived and interpreted as potential “situational disability” scenarios. In a recent case of Yoshimoto v. OPM, MSPB Docket No. DE-844E-07-0435-I-1 (June 5, 2008), interestingly enough, the origin of the Appellant’s medical/psychiatric disabilities stemmed from a long history of suffering a hostile work environment involving physical and verbal sexual harassment. This type of situation can often defeat a Federal Employee Disability Retirement application, because it sends a “red flag” to OPM if the Federal Disability Retirement application focuses upon this aspect of a case. Now, in all fairness, from OPM’s perspective, allegations of a hostile work environment can rarely be confirmed or denied, unless there has been a judicial finding of facts in a separate legal forum. Thus, OPM is often befuddled as to what to do with such allegations. On the other hand, the reason why OPM will often deny cases which allege or focus upon medical conditions which arise within the context of a “hostile work environment” is because the Applicant is able to perform the actual functions of the particular job, absent the hostile work environment. In other words, it becomes an issue of the work environment, and not the medical condition. In this particular case, however, the MSPB, on a Petition for Review, found not only that the medical condition of the Appellant was so severe as to be incompatible with working in any Post Office setting – there was evidence that she could not hold any jobs outside of the Post Office, either. Thus, the important point here was that the Appellant was able to prove that her psychiatric conditions had become much more than a “situational” condition limited to her particular hostile work environment – something that the Office of Personnel Management attempted to portray it as.
  • Further, the case itself is illustrative of how the Law evolves over time and impacts a case in multiple ways. For instance, I have previously written (in articles, blogs and responses to specific questions) of the significance of the recent case of Vanieken-Ryals v. OPM, 508 F.3d 1034 (Fed. Cir. 2007). In the Yoshimoto case, it is cited multiple times. It is cited for purposes of refuting OPM’s persistent but unfounded assertions that psychiatric disabilities must be proven by “objective” methods (thereby propagating the mythical bifurcation between “subjective” and “objective” in psychiatric medical disabilities). As the Board Members in Yoshimoto observed, the “absence of ‘objective’ measures or tests as described by OPM is not dispositive.” Thus, legal landmines can take various forms: the Office of Personnel Management can, and often does, mis-state the applicable law, and it is up to the OPM Disability Retirement Applicant, along with his or her Federal Disability Attorney, to know the law, point out the mis-statement or mis-application of the law to the OPM Representative, and not be fooled into thinking that merely because the Office of Personnel Management denies your case and makes statements and assertions which “sound legal”, that your case cannot be won.
  • The Board in Yoshimoto correctly stated the Law, and rebuffed and refuted OPM’s multiple arguments, to include: (A) The mere fact that the origin of one’s medical disabilities may be found in the job’s inherent stresses, or other factors, does not necessarily make it a “situational” disability. Thus, the cause of the condition “is not relevant in determining whether an employee is eligible for Federal Disability Retirement,” but further (B) it is instead “whether the condition prevents the employee from rendering useful and efficient service in her position.” (Citing Marucci v. Office of Personnel Management, 89 M.S.P.R. 442 (2001), as well as 5 C.F.R. Section 844.103(a) as relevant authorities). Thus, OPM was trying to get by with multiple arguments to defeat this particular Federal Disability Retirement application, and attempting to side-step the central one: Did Ms. Yoshimoto’s medical conditions prevent her from performing one or more of the essential elements of her job, regardless of whether the origin and inception of the medical disabilities occurred as a result of her work-place hostilities? OPM was obviously successful throughout the Initial Application Stage, the Reconsideration Stage, and even at the Hearing; it was only upon a Petition for Review of the Initial Decision that OPM’s denial of Federal Disability Retirement benefits was finally overturned and rejected.
  • Of further interest is a peculiar statement made by the Board towards the end of the Yoshimoto case. An issue which had been brought up concerned the fact that the Appellant had been denied benefits both by the Social Security Administration as well as by the Office of Worker’s Compensation Programs. Now, I have always argued, and have been consistently successful in arguing, that a negative decision by either SSA or OWCP has no impact whatsoever upon an OPM Disability Retirement application. At the same time, however, I have argued that when an SSA case has been approved, it must be looked upon with mandated favor per Trevan v. Office of Personnel Management, 69 F.3d 520, 526-27 (Fed. Cir. 1995), where the Federal Circuit Court found that in making a determination of eligibility for Federal Disability Retirement under FERS, the Board must consider an award of SSA Disability benefits together with medical evidence provided by the appellant to OPM, and other evidence of disability. Here, however, the Board makes a peculiar statement. In reading and interpreting Trevan, the Board stated: “in considering a disability retirement application under FERS, OPM and the Board must consider an award of Social Security disability benefits, but may find that this evidence is outweighed by the medical evidence.” This is the first time that I have seen a denial of SSA benefits being used as a “sword”, and the Board seems to give some credence and weight to that prospect. We shall have to “wait and see” if such an argument is used in the future.
  • And, finally, the Board cites Suter v. Office of Personnel Management, 88 M.S.P.R. 80 (2001), for the proposition that “OWCP’s determination that an appellant does not qualify for compensation is not dispositive of the appellant’s rights under the disability retirement statutes,” and “OPM and the Board must consider an award or a termination of OWCP benefits, but may find that this evidence is outweighed by other medical evidence.” Again, a negative OWCP determination is being used as a “sword”, whereas, normally, OWCP determinations have no impact upon disability retirement issues unless there has been an approval.

OPM Disability Retirement Law involves a complexity of issues which cannot easily be understood or applied. A review of the case of Yoshimoto is illustrative and instructive in how, within the span of a single case, multiple issues arise, any one of which can defeat a Federal Disability Retirement application. OPM Disability Retirement is a benefit available to all Federal and Postal employees who have a minimum of 18 months of Federal Service (for FERS) and a minimum of 5 years for CSRS employees. It is an important benefit which should be looked upon as an investment to attain a level of financial security, in the event that a Federal or Postal employee finds that he or she can no longer perform one or more of the essential elements of employment. I am a Federal Disability Attorney who specializes in obtaining OPM Disability Retirement benefits for Federal and Postal employees. To contact me, you may email me at or call me at 1-800-990-7932, to discuss the particulars of your case.


Robert R. McGill, Esquire


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