OPM Disability Retirement: While the Law May Favor the Applicant, the Process Does Not

— Man, capable of moral behavior, suited with intelligence and cunning, endowed with creativity and foresight; yet, the only animal capable of unfettered cruelty just for the sake of self-amusement. Why is this so? Having so many advantages, why does he lack in fulfillment of his potential?

— From Man and Philosophy

There is often a suspicion that certain forums are “weighted” in favor of the government. In speaking with Federal and Postal Workers who are contemplating filing for Federal Disability Retirement benefits from the Office of Personnel Management, a concern which often surfaces repeatedly is that the Merit Systems Protection Board is “weighted” in the government’s favor. While it may be true that the MSPB may find in favor of the Federal Government and its agencies in a majority of cases, this does not necessarily mean that there is a bias on the part of the Administrative Judges. In many cases, appeals to the MSPB are brought by unrepresented individuals (“pro se” appellants), and therefore never stand a chance at winning against seasoned agency lawyers. Further, because the law allows for wide discretion on the part of Agencies to dismiss Federal workers for the “efficiency of the Federal Service,” the laws themselves may favor the Federal Government, which therefore has little to do with how a judge rules. Judges are supposed to apply and follow “the law”.

An exception to the idea that Agencies normally prevail against Federal or Postal Workers, should be found in Federal Disability Retirement cases under FERS or CSRS. Why should this be so? This is because Federal Disability Retirement laws are heavily weighted in favor of the applicant who is filing for Federal Disability Retirement benefits. Here are at least five (5) examples where the laws governing Federal Disability Retirement benefits is weighted in favor of the Federal or Postal Worker filing for Federal Disability Retirement benefits under FERS or CSRS:

1. One needs only prove, by a preponderance of the evidence, that one cannot perform just one (or more) of the essential elements of one’s job. Thus, a Federal or Postal Worker does not have to prove that one is “totally disabled” from gainful employment. It is a much lower standard.

2. Only 18 months of Federal Service (under FERS) is needed in order to be eligible to file for Federal Disability Retirement benefits.

3. “Light Duty” does not constitute an “accommodation” which precludes one from filing for Federal Disability Retirement benefits under FERS or CSRS. Thus, even if the Agency allows for temporary light-duty assignments, the very fact that the Federal or Postal employee is unable to perform the full duties of his or her position allows for eligibility for Federal Disability Retirement benefits. See Bracey v. Office of Personnel Management, 236 F.3d 1356, 1358 (Fed. Cir. 2001).

4. Being denied by Social Security does not impact one’s FERS or CSRS Disability Retirement application, whereas the converse is true – being approved by SSDI can and often does help to prevail in a Federal Disability Retirement application. See Trevan v. OPM, 69 F.3d 520 (Fed. Cir. 1995).

5. In addition to competent medical evidence, subjective evidence (meaning thereby the personal statements of the applicant who is filing for Federal Disability Retirement benefits under FERS or CSRS) of disability and pain must be given “serious weight”. See Vanieken-Ryals v. OPM, 508 F.3d 1034 (Fed. Cir. 2007).

Such legal advantage should give great hope for Federal and Postal workers contemplating filing for Federal Disability Retirement benefits under FERS or CSRS. The irony, however, is that because the law is clearly weighted in favor of the Federal or Postal Worker who is filing for Federal Disability Retirement benefits under FERS or CSRS, one may expect greater scrutiny by the Office of Personnel Management in reviewing, evaluating, and approving or disapproving a Federal Disability Retirement application. In other words, the mere fact that the law may be “weighted” in favor of the Federal or Postal Worker does not mean that the process is easier. This is often the case, however unfortunate, in all facets of life: where the substantive rules provide greater advantages, the process of review applies with greater scrutiny.

Take, for instance, a recent case published by the Merit Systems Protection BoardBeeler-Smith v. OPM, Docket No. DC-844E-09-0520-I-1, decided October 9, 2009. In Beeler-Smith, the multiple facts clearly favored an approval of a Federal Disability Retirement application under FERS, to include:

  • Medical conditions which clearly prevented the Applicant from performing her job as a Rural Carrier (where the Applicant’s condition was so severe that she could not bend her knees, stoop down or lift mail tubs or trays without assistance from her coworkers; where she actually had to lift her leg with her hand to use the brake of the vehicle; where she had to use a cane to walk; and where the doctor stated that she was a danger to herself and to others while driving).
  • SSDI benefits were awarded
  • The Supervisor’s Statement stated that the Applicant had a performance deficiency
  • The Agency Certification of Reassignment and Accommodation Efforts (SF 3112D) showed that the Applicant’s condition could not be accommodated, and she did not refuse an offer of reassignment

These are just some of the facts – almost irrefutable and eye-opening in considering the severity of the medical conditions, the unequivocal factual support in favor of a Federal Disability Retirement application, etc. – which makes one pause in asking the questions: How could the Office of Personnel Management deny such a Federal Disability Retirement application at the Initial Stage of the process? How could the Office of Personnel Management deny the case at the Reconsideration Stage? How could the Administrative Judge deny the initial appeal at the Merit Systems Protection Board?

Ultimately, in a Petition for Review, the Merit Systems Protection Board reversed the initial decision rendered by the Administrative Judge at the Hearing Level. While an allegation of bias by the Administrative Judge was sidestepped as an irrelevant issue by the reviewing Administrative Judges, the fact that this was the Appellant’s second attempt at obtaining Federal Disability Retirement benefits probably played a prominent role. One suspects that, given all of the medical conditions, facts, and legal support which favored a quick and speedy approval, the underlying reasons for the multiple denials had something to do with a higher level of scrutiny of the application. The fact that there are multiple laws which create an advantageous forum does not necessarily imply an easier process. Often, the opposite is true: substantive laws which favor one side over another invite for greater scrutiny, and require that the applicant “cross all Ts and dot all Is” – and not lazily rely upon the weighted advantage.

I am a Federal Disability Attorney who represents Federal and Postal workers from all across the United States, including Alaska, Hawaii and Puerto Rico. I do not charge for an initial telephone consultation; thus, if you believe that you need to consult an Attorney concerning Federal Disability Retirement, please contact me in one of these ways:

Sincerely,

Robert R. McGill, Esquire

 

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