FERS and CSRS Disability Retirement: The Game of Legal Relay and the Importance of Identifying the Right Evidence

By on April 29, 2010 in Current Events with 0 Comments


The rat is a naturally suspicious animal, and it is well that it would be so; otherwise, it would not survive in the sheer numbers which exist in our cities, towns, and sewer systems. It is, at the same time, a greedy animal. But which instinct would prevail at any given moment – its greed or its suspicious nature – is anyone’s guess. Now, for the housewife who sets a trap – one with a large chunk of cheese, and the other with a tiny sliver of cheese – she seeks neither a scientific answer to the query, nor an answer based upon a psychological analysis of the rat.  But for the scientist, ah, that is different. A recent scientific study concluded that the former were less suspicious than the latter. In a footnote, however, the author of the supposed scientific study somewhat equivocated, stating: “However, we do not know whether or not the rat consciously decided that death on a full stomach was preferable to death with only partial satisfaction.” But that we humans could be as wise!

                                                            — From “Journal of Science, Psychology, and the

                                                                                    Hermeneutical Methodology of

                                                                                    Existential Phenomenology”

The purpose of filing for Federal Disability Retirement benefits under FERS or CSRS is to actually be effective, and to get an approval from the Office of Personnel Management. One of the ways to be effective, is to cite legal authorities which support the basic criteria for eligibility:

(1) That the medical documentation is legally sufficient to meet the applicable standard of proof – that of “preponderance of the evidence”, and
(2) That past legal precedents clearly support an approval of one’s Federal Disability Retirement application because of the factual, legal and medical parallelism inherent in one’s individual case.

While it is possible for a Federal or Postal employee to use and cite legal precedents without legal representation, the inherent danger of a lay person in doing so involves the mis-application of a case, in misinterpreting the relevance of a particular case, or in failing to cite the proper legal precedent in supporting one’s case.  One must be cautious in overstating what a legal opinion says or doesn’t say – somewhat like the rat who suspects that the trap with the large chunk is cheese might be more dangerous than the trap with the small sliver of cheese, or vice versa. To overstate what a case does or doesn’t stand for, can undermine the very credibility and effectiveness of a particular Federal Disability Retirement application.

We are all familiar with the childhood game of the “sentence relay”—where a word or sentence is whispered into the ear of the first pupil, who then whispers it to the second pupil, and on down the line until the last pupil states out loud (often with comical results) what is supposed to be a regurgitation of the initial statement. As a game, there is little danger of any dire consequences; and, indeed, that is the very nature and purpose of a game: to achieve a sense of lightness and fun. In the practice of law, however, to engage in a similar game – let us entitle the game, “the legal relay” – can have unintended consequences unless one engages in the “game” in a careful manner.

The sentence relay, in the world of law, is based upon the use of legal precedents in the proper, effective manner.  Sometimes, the relevance of a judicial or Board opinion can be found in the “holding” of a case; at other times, such relevance and application must be found in the “obiter dictum” of a case. In either event, law allows for enough flexibility in terms of relevant application. However, while flexibility of application is allowable, misinterpretation of such legal relevance can backfire in terms of having an application for Federal or Postal Disability Retirement approved or disapproved.

Thus, as a an example, a recent holding by the Merit Systems Protection Board in the case of Simpkins v. Office of Personnel Management, 2010 MSPB 52, DC-844E-09-0623-I-1, decided on March 18, 2010.  The relevant holding in that case is that the Board “and OPM must consider an award of benefits by the DVA (Department of Veterans Affairs) based on the same medical conditions as the appellant’s disability retirement application, although this evidence may be outweighed by other evidence.”

It then goes on to cite a previous case as “legal precedence” in coming to this conclusion. That case—Sachs v. Office of Personnel Management, 99 M.S.P.R. 521 (2005) also needs to be reviewed, precisely to see whether or not there are any distinctions to be made, either factually or legally.

The Board in Sachs found that:

     “In Trevan v. Office of Personnel Management, 69   F.3d 520 (Fed. Cir. 1995), our reviewing court held that ‘OPM and the Board must consider an award of   Social   Security   disability   benefits,   and   any   underlying   medical data   provided to   OPM   by   the   Social   Security   Administration   or   the   employee, along with any other evidence of disability, in determining entitlement to FERS benefits.’ ” Id. at 526 (emphasis added).

Although the holding in Trevan was based on the court’s finding of an express Congressional intent to coordinate FERS and Social Security benefits, id., the Board has determined that an award or a termination of Office of Workers’ Compensation Programs (OWCP) benefits, and any underlying medical data provided to OPM by OWCP or the employee, are ‘other evidence of disability,’ as   contemplated by Trevan, that must be considered by OPM and the Board in determining entitlement to FERS disability retirement benefits.

Note that within the case of Sachs, another case is cited – Trevans v. OPM, which must further be reviewed in the game of legal relay. Now, taking the three cases – Simpkins, Sachs, and Trevan, what relevance can we glean from the “holdings” in order to relevantly apply it to a Federal Disability Retirement case? This is where the game of ‘legal relay’ is played—of looking at the prior holdings and case-citations of subsequent legal opinions, dissecting and discerning each as to the relevance in one’s own case, and applying it within the allowable flexibility to ascertain applicability and effectiveness in citing which, one, or all three.

To that end, let us begin with the relevance of the holding by the U.S. Court of Appeals for the Federal Circuit in Trevan v. OPM. There, as the case was referred to in Sachs, the important principles to be extrapolated can be summarized as follows:

  • A Social Security Disability determination of approval, along with any medical evidence used to obtain such approval, must be considered by the Office of Personnel Management in its determination for granting or denying Federal or Postal Disability Retirement benefits under FERS or CSRS
  • OPM must also consider any “other” evidence of disability (almost a redundancy)

Now, before analyzing and going on to the next case in this “legal relay”, note what the U.S. Court of Appeals for the Federal Circuit did not say. They did not say that an SSDI approval is determinative in a Federal Disability Retirement case; they did not say that an SSDI approval was even persuasive – merely, that it was one set of evidence among others that must be considered. Thus, it is important for the applicant who is considering using an SSDI approval in attempting to persuade OPM of its relevance and impact, to know exactly what the court did or did not say. Whether to use the SSDI approval or not, and to what extent, and how much, is going to determine whether it is the “right kind of evidence.”

Normally, of course, Social Security Disability benefits are not approved—if at all—prior to an approval for Federal Disability Retirement benefits under FERS or CSRS. In many cases, the approval comes almost too late—as during the process of a Hearing before the Merit Systems Protection Board, or during (or even after) an appeal. Regardless of when an SSDI approval was received, the important point here is to recognize the extent and relevance of what the Court is stating, so that an applicant who is considering using the evidence from the Social Security Administration does not overreach. Moreover, it is of even greater importance to know how to use the evidence.

Thus, to continue with the legal relay: what can be further gleaned from Sachs v. OPM, may be of even greater benefit for the potential applicant who files for Federal Disability Retirement benefits under FERS or CSRS—for, not only can an SSDI approval be used as persuasive evidentiary authority in a case, but further, evidence of an OWCP approval, and any underlying medical evidence used in support thereof, must also be “considered” by OPM. Again, however, it is important to note that such evidence is merely “persuasive” authority, and is not determinative.

And so we finally come full circle to our most recent case in the legal relay—that of Simpkins v. OPM.   There, the three-judge panel for the U.S. Merit Systems Protection Board took the previous Board cases, and came to the ultimate logical conclusion by extending the reasoning and rational basis of the prior Board (and U.S. Court of Appeals for the Federal Circuit) cases: If an SSDI approval and an OWCP approval are evidence which must be considered by the Office of Personnel Management in making its determination for a Federal Disability Retirement application under FERS or CSRS, then it would make logical sense that a disability rating ascribed by the Department of Veterans Affairs should also be similarly relevant.

Indeed, the “holding” in Simpkins only makes “logical sense”, and is precisely what lawyers (including the author of this article) have been arguing in Federal Disability Retirement cases before Administrative and Federal Judges—that while Case X or Y may refer to a particular kind of benefit (i.e., such as Social Security or OWCP determinations), the logical, underlying reasoning as to the relevance of such a determination is, and should be, to uphold the consistency of all Federal Agencies.

Now, to be fair, there are distinctions to be made between the relevance ascribed by any particular Federal Agency, precisely because the legal criteria for eligibility for a particular kind of benefit may be different between each. And this is where the legal relay must be carefully played, for there are caveats to be considered—not the least of which is where the legal opinion specifically states, “OPM must consider an award of benefits by the DVA (Department of Veterans Affairs) based on the same medical conditions as the appellant’s disability retirement application, although this evidence may be outweighed by other evidence.” (emphasis added) Is there any flexibility contained in such a holding, such that an attorney who represents a Federal or Postal employee who is filing for Federal Disability Retirement benefits may argue to his or her advantage? To what extent does the term “same” imply strict identity? These are all questions which must be asked, and investigated, in the continuing game of the legal relay.

Ultimately, Disability Retirement benefits under FERS or CSRS is a benefit which must be fought for, and won, in order to secure the economic future of a Federal or Postal employee who is in need of such a benefit. The game of legal relay is a necessary component in the effort to prove, by a preponderance of the evidence, that one has the legal authority to satisfy all of the criteria for eligibility. To that end, all of the weapons in the arsenal of law must, and should be used. For, in the end, the game of legal relay and the importance of identifying the right kind of evidence to use in proving one’s Federal or Postal Disability retirement case, is not strictly a “game”, but a methodological approach to secure one’s future.

© 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.