“Strike three…you’re out!” screamed the umpire.
“How could I miss all three times?” asked the young boy, dejectedly, as he walked back to the dugout.
“If you swing the same swing at three different pitches, you ain’t about to hit any of them,” said the manager, resting his arm around the young boy’s shoulders. “Recognize each pitch, and swing accordingly.”
— from “Baseball Stories then and now”
Individuals attempting to file for Federal Employee Disability Retirement, either under FERS or CSRS, on their own, and without an Attorney, must meet the same standards, same criteria, and same legal thresholds, as those who are represented. While it may cost an individual in the short term to hire an Attorney, that cost may be insignificant compared to the loss of a long-term investment — the monthly annuity income which may span years, and even decades, depending upon your age.
In applying for Federal Disability Retirement under FERS or CSRS, you essentially have three shots at succeeding. First, there is the initial stage of review before the Office of Personnel Management (OPM). If OPM denies the application at this initial stage, you may Request Reconsideration — and at this stage, you are given an opportunity to submit additional medical and other documentation, as well as make legal arguments. If OPM refuses you the second time, you may appeal your case to the Merit Systems Protection Board, and have an administrative judge independent of the Office of Personnel Management, hear your case.
There are two additional stages — an appeal to the Full Board, as well as a further appeal to the Court of Federal Appeals; however, to have either of these legal bodies reverse the decision of an MSPB judge is extremely difficult.
The problem with individuals attempting to obtain Federal Disability Retirement on their own, is their lack of knowledge of the legal standards required. This then leads to making the same mistake at each stage of the process. The key is to know what the legal standard is; to recognize that the “benefits clerk” at OPM is not necessarily an individual who knows what he or she is talking about, and to point out the error of OPM’s decision (courteously, but firmly), and to rebut any arguments made by OPM. This then lays out a successful foundation in the event that your case must be appealed to the Merit Systems Protection Board. Time, care, money and investment at preparing your case at Stage 1 will avoid a needless denial of your disability retirement application.
Unrepresented individuals who have had their applications denied have come to me with the letter from OPM blatantly misstating the applicable law. For example, I have come across some denial letters which state in the “Discussion” section, that the applicant “has failed to establish that he is totally disabled from performing his job.” To begin with, this is not the legal standard. Second, OPM knows better than to make such a statement, but will often do so — knowing that the unrepresented individual does not know better. Third, such a statement from OPM implies further that a concrete nexus must be proven between one’s medical disability and the performance of one’s job, when in fact more recent M.S.P.B. cases have relaxed the standards. However, if you are representing yourself, you will not be aware of the more recent cases, and such lack of knowledge may well be to your detriment.
Ever since the case of Mullins-Howard v. Office of Personnel Management, 71 M.S.P.R. 619, 627 (1996), in which the Board stated that an employee’s entitlement to disability retirement does not always turn on a “finely tuned correlation between particular medical impairments and specific job requirements,” the Board has often softened their legal standards based upon individual circumstances. For example, in Thieman v. Office of Personnel Management, 78 M.S.P.R. 113, 116-117 (1998), the Board held that an appellant’s medical condition may be incompatible with useful and efficient service even if the disability detrimentally affects just one of the critical elements of his position. Thus, while in the past, strong medical evidence — unequivocal and almost irrefutable — was the only basis upon which to win a disability retirement case, more recent cases have seriously considered the appellant’s own testimony of subjective pain and inability to work, particularly where it is supported by “competent” medical evidence. See Davis v. Office of Personnel Management, 89 M.S.P.R. 690 (2001); Mansfield v. Office of Personnel Management, 67 M.S.P.R. 40, 43 (1995); and Cole v. Office of Personnel Management, 88 M.S.P.R. 54, 58-59 (2001), where the Board held that the appellant’s own testimony of subjective pain and inability to work must be “seriously” considered, particularly where it is supported by competent medical evidence; and further, finely tuned correlation between particular medical impairments and specific job requirements were “unnecessary” to prove her claim.
Being armed with a thorough knowledge of the law is the only way to refute the Office of Personnel Management, who may or may not base its decision upon the correct interpretation of the law. Just as the boy who swung the bat the same way at three different pitches — and missed each time — an individual who files for FERS Disability Retirement must approach each stage of the process in different ways, and respond with force and confidence, armed in the knowledge of the law.
If you believe that you need to consult an attorney concerning Federal Disability Retirement, please contact me at 1-800-990-7932, or email me at email@example.com.
Robert R. McGill, Esquire