Complexity is often simplicity multiplied exponentially, but based upon several human factors: lack of knowledge; undue focus upon peripheral issues; emergencies resulting from procrastination; and other exigencies which compound, exacerbate and complicate. In preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS, the simplicity or complexity of the case is often determined by the extent that the Federal or Postal worker understands and applies the laws governing Federal Disability Retirement issues. While the multiple Standard Forms (SF 2801 series for CSRS; SF 3107 series for FERS; SF 3112 series for both CSRS and FERS) are always accompanied by instructions, what the Office of Personnel Management fails to inform the potential applicant of is the evolving compendium of case-laws which administrative judges have expanded by interpretive decisions and holdings impacting prior cases. The result is like that of man who receives an engineering device without instructions on how to put it together — and as each year additional parts are added or perfected, the complexity increases.
Federal Disability Retirement is a process available to all Federal and Postal employees, whether under FERS or CSRS, in order to obtain eligibility of a disability annuity. It is not technically an “entitlement” (for one must prove by a preponderance of the evidence to the Office of Personnel Management that one has met the burden of proving that one is medically unable to perform one or more of the essential elements of one’s job), but rather a benefit available as part of the total compensation package of all Federal and Postal employees. Each step of the process should be viewed by all potential applicants as a building block for the next; yet, concurrently, each step should be sufficient and self-contained, such that the stage at hand meets the burden of proof for eligibility. Thus the conundrum: If each stage is self-sufficient, what can be added to improve the chances of success for the next stage, if it is denied at any particular stage of the process?
When a Federal Disability Retirement application gets denied at the administrative level by the Office of Personnel Management (first at the Initial Stage of the process, involving obtaining the proper medical documentation, formulating the applicant’s statement of disability, obtaining a Supervisor’s Statement, etc.; if denied at the Initial Stage by OPM, then to file for reconsideration and have the opportunity to submit additional medical evidence, supplemental legal arguments, citations, etc.), it must be appealed to the Merit Systems Protection Board. The Administrative Law Judge at the Merit Systems Protection Board must make a decision based upon a de novo review of evidence presented — a Latin term generally translated as “anew” or “beginning from new”. The Administrative Judge (AJ) must thus review the evidence without any preconception based upon what the Office of Personnel Management has previously decided. Instead, the AJ must review the evidence already submitted, listen to any testimony given at a Hearing on the case, reflect upon any additional documentation, whether medical or other submissions, and apply the law and criteria as determined by the applicable statutes, precedential cases previously decided, and make a decision. Of course, the reasoning given in prior OPM decisions can also be taken into account, but only as arguments on the evidence, and not as evidence itself.
The mistake is often made by the applicant for Federal Disability Retirement benefits under FERS or CSRS of failing to prepare a Federal Disability Retirement application without a view towards steps beyond the initial application stage of the process. This failure often occurs as a result of two common perspectives, both of which may be held concomitantly: (A) the Disability Retirement applicant thinks that his or her application is a “sure thing” and (B) few rarely see beyond the immediacy of an application, and fail to consider that it is a process which involves denials (sometimes multiple) as well as approvals. Then, when the Office of Personnel Management issues a denial in a particular case, the reaction of the applicant is often one of frantic disbelief and an inability to apply an analytical, methodological approach to dissecting the underlying rationale for the denial (which is often lacking, anyway), and proceeding to properly prepare for the next stage of the process.
Having the proper mindset and perspective when preparing for each stage of the process in a Federal Disability Retirement application under FERS or CSRS is important at the outset. Failing to understand the entirety of the process at its inception can be fatal to the success of the endeavor. Each stage requires a subtlety of difference in a successful methodology, precisely because each stage often requires a different element of proof. Thus, for example, in preparing and formulating the Applicant’s Statement of Disability (SF 3112A), it is important to take heed of the imperative to fully “describe your disease(s) or injury(ies)”, with the admonition that OPM will “consider only the diseases and/or injuries you discuss in this application.” Thus, at the outset the approach must involve a level of selectivity and qualitative thoroughness, while at the same time allowing for some linguistic flexibility. Why? Because it is a “process”, and a process — as opposed to the mistaken belief that one’s own case is irrefutably a “sure thing”, which comes perilously close to believing that Federal Disability Retirement benefits is an entitlement — necessarily involves a benefit determined by proof of eligibility.
Let’s assume, one may argue, that we “get it” — that it is a “process” as opposed to an entitlement, and the applicant retains a perspective of potentially multiple stages. How should one view the Second, Reconsideration Stage of the process? Without exhaustively answering the question, the best way to approach an initial denial of a Federal Disability Retirement application, is to understand the psychology of the Reconsideration Stage at the Office of Personnel Management. Not only is it an opportunity as a “second chance” by the applicant to submit additional evidence to prove one’s case; it is also the stage just prior to an appeal to the Merit Systems Protection Board, to be reviewed de novo by an Administrative Judge. As such, the OPM Representative who reviews a Reconsideration case is often more receptive to legal arguments, cognizant of the fact that to ignore the applicability of relevant laws governing the case is to face the possibility that OPM will have to expend its limited resources at the MSPB. Thus, for the Reconsideration Stage of the process, supplementation of evidence, combined with greater sophistication of legal arguments, while responding to the concerns as expressed in the initial denial letter, constitute the most effective methodology.
Finally, it is important to apply a comprehensive approach to an MSPB appeal. To file an appeal to the Merit Systems Protection Board is a different ball game. While there are additional appeals beyond the MSPB (i.e., a Petition for Full Review, and an appeal to the U.S. Court of Appeals for the Federal Circuit), the opportunity to present persuasive evidence in order to meet the burden of proof must be accomplished at this stage of the process. Beyond the MSPB, any appeal is merely to determine if there was an “error of law”. As such, while this is the final stage of “proving” one’s case based upon the documentary proof to be submitted, it is also the stage where the culmination of the two previous stages should come to fruition. One should, at a Prehearing Conference with the Administrative Judge, be able to state that one cannot understand why OPM has denied the case, based upon the file as already compiled at the initial stage of the application, and the Reconsideration Stage of the process. The evidence to be presented to the Administrative Judge should constitute “overkill”, and the legal arguments made at the Reconsideration Stage of the process should be regurgitated at the MSPB level.
Success in any endeavor requires an understanding not only of the entirety of the process, but each of their singular elements. Because Federal Disability Retirement is not an entitlement, but a benefit which must be secured through proving one’s eligibility by a preponderance of the evidence, it is important to prepare a case well — and to be well-prepared is to always be prepared for a denial. If a Federal or Postal employee has decided that one’s medical condition is preventing one from performing one or more of the essential elements of one’s job, then it is time to contemplate filing for Federal Disability Retirement under FERS or CSRS. Once that decision has been made, however, one must confront the confounding complexities of the process, and proceed to engage in that process with a singular mindset: to win.
Robert R. McGill, Esquire