FERS and CSRS Disability Retirement: Common Principles to Follow

By on May 6, 2009 in Current Events, Retirement with 0 Comments

The law is never something to manipulate; it is, rather, a compendium of principles upon which a society relies.  Moreover, they are principles which are applied, as opposed to being manipulated, to serve an end. 

The "end" is that which each individual case attempts to achieve based upon the individual need, the specific facts of a case, the benefit applied for, etc. Principles provide stability for a society, for they rarely change, and when they do, gradually, purposefully, and based upon the legal principle of stare decisis – in Latin, meaning "let the decision stand", a doctrine requiring that judges follow established precedents.  
There are certain legal principles which are repetitively delineated through cases, over time and over many years. Such repetition in law provides for the stability one relies upon.  Then, there are common-sense principles which individuals should follow when entering into the "arena of legal battle". 

This arena of legal battle takes many and multi-faceted forms and sub-forms – from litigation in the courtroom, writing of a will, formulating a contract, etc., to Administrative Law based upon statutory conferring of benefits. 

This latter area of law is no exception – for Disability Retirement Law is no different in that respect; an individual has an "end" to reach (obtaining disability retirement benefits and thereby ensuring a foundation of financial security for the future); in order to reach that end, certain statutory criteria must be met. Unfortunately, individuals who apply for disability retirement benefits (A) often don’t have the time to study the statutory criteria, or (B) the medical condition itself, which prompts the necessity to file for Federal Disability Retirement Benefits, will often, and unfortunately, restrict, preclude, or otherwise constrain the individual from fully comprehending the necessary criteria.

Beyond knowing "the law", one should always follow a common-sense approach in filing for disability retirement benefits. Filing for disability retirement is not just a matter of "filling out forms" for, if it were, there would not be a complex body of case-law which has expanded around the statutes and regulations governing the benefit.  One such "common sense" approach is:  be persistent. 

Do not allow a denial from the Office of Personnel Management to deter you.  The fact that OPM has denied your application does not mean that your case has no merit; rather, it likely means that OPM failed to apply the proper legal criteria in your case.

Disability Retirement under FERS & CSRS has a long and complex history of "case-law" surrounding it – from opinions delineated by Administrative Law Judges at the Merit Systems Protection Board to Federal Circuit Court opinions.  This is the "organic" nature of law – principles which are applied and tested, and the growth of legal opinions which interpret and apply the law as expounded in a statute and Code of Federal Regulations.  

The legal criteria which an applicant must minimally meet is comprised of the following:  The applicant must satisfy his or her "burden of proof" by "preponderant evidence" (5 C.F.R. 1201.56 (a)(2) ). To be eligible for a disability retirement annuity under FERS, an employee must show that:

(1) She completed at least 18 months of creditable civilian service (under CSRS, it would be 5 years – which, by now, any CSRS employee would automatically meet)

(2) while employed in a position subject to FERS (or CSRS), he/she became disabled because of a medical condition, resulting in a deficiency in performance, conduct or attendance, or, if there is no such deficiency, the disabling medical condition is incompatible with either useful and efficient service or retention in the position;

(3) the disabling medical condition is expected to continue for at least one year from the date that the application for disability retirement benefits was filed;

(4) accommodation of the disabling medical condition in the position held must be unreasonable; and

(5) the employee did not decline a reasonable offer of reassignment to a vacant position.

Now, for the lay person filing for disability retirement benefits, the set of "legal criteria" delineated in the paragraph above will present itself in one of three ways:  (1) easily understandable, (2) full of complexities, or (3) somewhere in between. 

The fact is, if one goes to the Merit Systems Protection Board website, one will find a long list of cases wherein the Administrative Judge "explains" and "interprets" the basic criteria – in the process of determining whether an individual applicant is eligible for disability retirement benefits.

The questions presented, and "answered" by court cases, can range from: "Did the person meet the minimal requirement of federal service" (simple) to "Did the applicant prove his or her case by a preponderance of the evidence" (somewhat more nebulous and complex) to "Is the medical condition incompatible with either useful or efficient service"?  (inherently complex)  

Unfortunately, the "law" itself is both simple as well as complex.  Statutes, as written, are often deceptively simple; the long history of interpretation, as argued by lawyers and decided by judges, constitute the "interpretive" history of the organic and growing "case law" in a given arena of law.  

Beyond the simplicity or complexity of "the Law" are the pragmatic, common-sense aspects of pursuing a case. Whether attempting to obtain disability retirement benefits or litigating a personal injury case, one must always prepare to be in it "for the long haul." A recent case —  Chavez v. OPM, Docket No. DE-844E-08-0296-I-1 (decided March, 2009) is a case in point.  

The Appellant "lost" her case at the MSPB administrative hearing level. In fact, the Appellant lost her case at each turn: Her initial application was denied by the Office of Personnel Management; she filed a Request for Reconsideration in a timely manner, and that was denied; she then filed an appeal to the Merit Systems Protection Board, and the Administrative Law Judge denied her case again, and affirmed OPM’s denial.

A lost case? One would certainly think so?  Should she have given up?  Most people might have. Common sense might guide you in that (erroneous) direction.  Fortunately for the Appellant, she persisted – and it paid off well for her.

Upon a Petition for Review (which is an appeal to the full board of the Merit Systems Protection Board), the MSPB reversed the decision of the Administrative Judge at the Hearing level, granted the disability retirement benefits, and awarded the Appellant her disability retirement annuity.

One can read the case – the history of the case, the facts of the case, the full legal analysis – and yet not understand what I believe to be the underlying, singular reason for the victory in this case.  It is encapsulated in one simple sentence:  "OPM did not respond to the PFR".

What does it all mean?  The Appellant filed her appeal to the Full Board; the Office of Personnel Management did not file a response to the Petition. The human, untold side of "the Law" is one which is often never spoken about: Persistence pays; careful preparation of a case pays even better; luck sometimes pays the best. One thing that all Courts, Boards, or any entity, legal or not, agree upon: No one likes it when you don’t do what you are supposed to do. 

The Merit Systems Protection Board is no different. The human story is a simple one:  The Office of Personnel Management did not grant the common courtesy of responding to the Appellant’s Petition for Review of the case; the MSPB took exception to that.  Now, one may read all of the legal analysis, the legal justification as to why the Full Board reversed OPM and granted the Appellant her disability retirement benefits, and conclude that it was "legally principled" in its "legal rationale".  I think it was simpler than that:  OPM did not respond; the MSPB does not like it when such discourteous behavior is engaged in.

Common principles to follow when filing for Federal disability retirement benefits under FERS or CSRS? 

  • Apply in a timely manner;
  • be courteous in all dealings with personnel at the Office of Personnel Management; meet the legal criteria;
  • always respond to a Court pleading; and above all,
  • don’t give up and be persistent.
     

© 2016 Robert McGill. All rights reserved. This article may not be reproduced without express written consent from Robert McGill.

About the Author

Attorney Robert R. McGill specializes in federal disability retirement cases helping Federal and Postal workers secure their disability retirement benefits under both FERS and CSRS. For more information about his legal services, visit his OPM Disability Retirement blog.

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