3 Basic Elements to Avoid in Preparing a Federal Disability Retirement Case

— Avoidance of an issue may result in a positive end, as when the issue simply resolves itself; or in a negative end, where the issue continues to exponentially explode and quantify in ways which were unintended, multiplying in consequences which create havoc beyond the original issue which was intended for avoidance. If the latter, then avoidance itself implodes; for one then avoids even the concept of avoidance, and certainly avoids the initial issue of avoidance, but all the more so, until the morning comes when all of the issues which were avoided resolve themselves. So, in the end, avoidance is the key to avoid all of life’s nuisances.

— From “Life’s Steps to Success”

Filing for Federal Disability Retirement requires planning, preparation and foresight. It is first and foremost a “paper presentation” to the Office of Personnel Management and, as such, unless it goes to the Third Stage of the Process – the Merit Systems Protection Board – the Federal or Postal employee who files for Federal Disability Retirement benefits, whether under FERS or CSRS, will not have an opportunity to personally plead his or her case as to the validity, persuasiveness or merits of the case. Therein lies the conundrum, of course: that in preparing, formulating and filing a Federal Disability Retirement application for approval by the Office of Personnel Management, one must concurrently prepare the case such that the likelihood of success at the First Stage of the process is enhanced exponentially (while recognizing that there is never a guarantee), and at the same time preempting and inoculating, to the extent possible, the Federal Disability Retirement application from selective criticism and potential denial by the Office of Personnel Management.

Determining whether or not a particular Federal Disability Retirement application will successfully meet the Burden of Proof at the First Stage of the process is never based upon a mathematical formula. Where the human factor constitutes the essence of the decision-making and it is not based upon a computerized quantification of paradigm grids, differences of opinions can occur. Thus, whether or not the Federal Disability Retirement application satisfies the “preponderance of the evidence” burden; whether the medical documentation satisfies the current and applicable legal criteria; whether “essential elements” of the position description have been impacted by the medical condition; whether a sufficient nexus has been formulated between the Federal or Postal employee’s essential duties and the medical conditions of the applicant – all of these issues, and many more, are grey areas of potential dispute and disagreement between the applicant who has filed for Federal Disability Retirement, and the Claims Representative at the Office of Personnel Management.

Ultimately, of course, there is a “final arbiter” who will decide any dispute which may occur – and that is the Appellate process which governs all Federal Disability Retirement applications. First at the Merit Systems Protection Board by an Administrative Judge (although this is not technically part of the “appellate process”, but rather a Hearing before an Administrative Judge to determine the sufficiency of the evidence presented), then by a panel of Administrative Judges to decide (if necessary) a Petition for Full Review, then potentially before a Judge of the U.S. Court of Appeals for the Federal Circuit. Again, the human factor is always involved in intervening by attempting to “objectify” errors or perceived errors of correctly applying the law in making a determination on a Federal Disability Retirement application. Where the human factor prevails, the self-contradiction of attempting to expunge the human factor by applying an “objective” criteria, as if by mechanical application, is something which is impossible to attain. But that is why the layers of an administrative process involve multiple stages – in an effort to ensure fairness and an objective adjudication of a Federal Disability Retirement application, and to give the applicant every benefit of the doubt and opportunity to prove his or her case.

In preparing, formulating a Federal Disability Retirement application under either FERS or CSRS, three (3) basic rules should always be followed, thereby both enhancing the probability of success, while at the same time inoculating the application against selective criticism by the Office of Personnel Management. The three (3) basic rules are:

  1. Avoid Internal Inconsistencies. Often, in reviewing denials from the Office of Personnel Management on cases where individuals prepared a Federal Disability Retirement application without an attorney, multiple internal inconsistencies are found, and attacked, by the Claims Representative at the Office of Personnel Management. These internal inconsistencies often involve direct contradictions between claims of medical conditions and symptomatologies in what the Applicant’s Statement of Disability narrates, and what the medical reports themselves reveal; or between statements made in a medical narrative report and what the office or treatment notes show. Further, overstating the claim of a medical condition will often implicitly reveal an inconsistency. It is better to let the doctor state the severity of the medical condition, as opposed to over-dramatization of the medical condition by the applicant.
  2. Avoid External Inconsistencies. To the extent possible, one should attempt to preempt inconsistencies between the Applicant’s Statement of Disability, and statements made by the Agency – either in the Supervisor’s Statement or the Agency’s Efforts for Reassignment & Accommodation. The Office of Personnel Management will often selectively extrapolate and emphasize such external inconsistencies, arguing that: “While you state in your Applicant’s Statement of Disability that X is the case, your Supervisor has stated that Y is the case.” While complete avoidance and preemption of such inconsistencies is impossible (and unnecessary), it is best to attempt to predict, preempt and avert such inconsistencies, thereby negating further ammunition which OPM may be able to use in denying a Federal Disability Retirement application.
  3. Avoid Open Inconsistencies. These are the more subtle forms of inconsistencies which OPM will focus upon, and which are much more difficult to avoid. An example of such an open inconsistency is where OPM will argue that while the Applicant who has filed for Federal Disability Retirement benefits has shown that the Agency is unable to accommodate the medical condition, such a showing is valid if and only if one has first shown that a medical condition requires that an accommodation is necessary. Thus, by failing to first prove by a preponderance of the evidence that X is the case, the Applicant has failed to prove that Y is necessary, and therefore the open inconsistency allows for the Office of Personnel Management to target a criticism for denying the case.

Preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS must always be accomplished with care, foresight, and with a scrutiny to detail. Because it is not an “entitlement” (the conceptual distinction being that an entitlement is a benefit which one has an automatic right to), but rather a potential benefit which one may be eligible for – as such, the Federal or Postal employee must prepare his or her case with the cumulative knowledge of the law, the requirements of the law, and the applicability of the law, all at once. It is, ultimately, a benefit one secures not only for financial reasons, but because it allows for future security – both to have the opportunity to recuperate from one’s medical conditions, as well as to be able to again become productive in the workforce, perhaps in another type of job. In preparing an application for Federal Disability Retirement for FERS or CSRS, one must always look to the future, while at the same time viewing the importance of the entire administrative process, including avoiding targeted elements of inconsistencies which may develop in the preparation, formulation and filing of a Federal Disability Retirement application.

I am a Federal Disability Retirement Lawyer 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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