FERS and CSRS Federal Disability Retirement: Understanding the Practical Application of a Theoretical Construct

By on October 17, 2011 in Current Events, Human Resources with 11 Comments

Everyone has heard about the philosopher whose mind (and eyes) were focused upon the heavens and the clouds, and because of his mental absence from the practical world, fell into a hole one day and, failing to have the pragmatic knowledge in figuring out how to extricate himself, sighed, continued to reflect, and starved to death.  But have you heard about the practical man who refused to consider the world of ideas?  As the industrial revolution arrived; as the age of technology enveloped the world; as the information age pervaded society – obsolescence became his fate.  Somewhere between the two worlds is a happy medium; between nature and technology; between body and mind.  But, alas, that is precisely the mystery of man, is it not?  Not quite an angel; just above an ape?

                                                            — From, The Puzzle of Our World, Chapter IV

 

There is always a real-world, pragmatic distinction to be made from the conceptual component of any idea, issue or paradigm. That is why the entrance of a novice brings smiles or smirks to the experienced, older gentleman who has seen it all before. The novice, fresh with new ideas, perhaps never previously tested or applied, armed with schooling, diplomas, credentials and a cornucopia of conceptual compendiums, is certain that the world of application has simply never experienced the novel approach of ideas about to be introduced. But the universe of concepts, constrained by linguistic gymnastics, theoretical constructs and phenomena not yet “tested”, is often impractical and unworkable, precisely because the subjective, human element is there to obstruct, compromise, and deflate.

In the world of law, the young law student spends three (3) years in order to gain entrance into the right to take the Bar Exam; thereafter, it can take a decade to deconstruct and deprogram the student in order to reconstruct the mind to enter into the practical world of law, and to “unlearn” the damage that was done in order to be effective as a lawyer. The point to be made, of course, is that there is a vast distinction and difference to be recognized between the world of theory and the world of practice. The former is meant to prepare the practitioner for the latter; the latter is meant to temper the former; conjunctively, theory and practice are meant to formulate the reality of application in the day-to-day world.

In preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS, the world of reality should necessarily intersect with the theoretical construct, if one is to be successful in the endeavor. Success, ultimately, is defined by an approval of a Federal Disability Retirement application, either under FERS or CSRS, from the Office of Personnel Management or, if appealed because of successive denials (first at the initial application stage, then subsequently, at the Reconsideration Stage of the process), then a reversal of the denial from an Administrative Judge at the Merit Systems Protection Board. Approval of a Federal Disability Retirement application is governed by laws and regulations. The latter is the penultimate construct of theoretical paradigms; the former constitutes the successful, pragmatic application of the latter; conjunctively, the effective result of an approved Federal Disability Retirement application is produced.

Effectiveness is what is sought after. The “end-result” is an approval from the Office of Personnel Management, of one’s Disability Retirement Application. Does the “process” of how one arrives at the end result matter? Obviously, any application for Federal Disability Retirement benefits, whether under FERS or CSRS, must be guided by truth, integrity and the proper application of the law. Truth and integrity go hand in hand; the proper application of the law, if guided by the constraints of the former two dictates, is a relatively easy process. But it is precisely the application of the law which is open to interpretation, and why lawyers, judges and litigants argue within the arena of the court.

The foundational battleground in any Federal Disability Retirement case is the application of the legal standard identified as the “burden of proof”. For all Federal Disability Retirement cases, the applicable standard to be applied, and met, in each and every case, is what is called the “Preponderance of the Evidence.” Further, it is always the appellant – the Federal or Postal employee who applies for Federal Disability Retirement benefits from the Office of Personnel Management – who bears the burden of proof by a preponderance of the evidence in an application for disability retirement benefits that has been voluntarily initiated. Chavez v. Office of Personnel Management, 6 M.S.P.R. 404, 417 (1981). But what does the concept, “preponderance of the evidence” mean, in practical terms? In its application within the arena of law, what constitutes satisfaction of such a burden? A generic explanation of the concept is expanded upon in 5 C.F.R. Section 1201.5(c)(2) (2010):  “A preponderance of the evidence is that degree of relevant evidence that a reasonable person, considering the record as a whole, would accept as sufficient to find that a contested fact is more likely to be true than untrue.” In law, an explanation often provokes more questions than answers, and perhaps that is why Supreme Court cases, often delineated in convoluted conceptual conundrums, results in such controversial reactions and reverberations. What constitutes a “reasonable person”? What standard should be applied to “accept as sufficient” a particular fact? And what makes it “more likely to be true than untrue”?

Subjectivity, of course, is an inherent part of law. One likes to think that the legal profession possesses a strain of scientific objectivity, such that the dictates of logic and logical argumentation rule the day. But anybody who has walked into a courtroom and observed the effectiveness of a lawyer appealing to the emotional heartstrings of a jury will tell you that logical argumentation is merely secondary; truth is often a byproduct; and subjectivity is rampant in a world dominated by linguistic elasticity.

But that is not to say that the dominance of subjectivity should be seen as resulting in an arbitrary and capricious decision-making process. It is too easy and dismissive to simply throw up one’s hands and declare, “It all depends upon how OPM or the Administrative Judge feels on any given day.” No, there are constraints on judicial decisions: prior cases; the burden of proof itself; the quality of the proof presented. On a simplistic level, a “reasonable person” is that person who, like you or I, would look at the evidence and say, “It is believable”, or it is “not believable.” Then, reasons are given as to the believability or the incredulousness of the evidence presented. Further, what constitutes “sufficiency” of the evidence? Is it entirely qualitative, or does the sheer volume (say, of the medical evidence in a Federal Disability Retirement case) make all the difference? Can a 1-page medical report be deemed “sufficient” in proving a Federal Disability Retirement case? Can two hundred pages of a doctor’s office notes constitute satisfaction of the sufficiency test? The answer to last two questions can be either a yes or a no, depending upon the particular circumstances of the case.

Remember, first and foremost, that it is the “burden”
of the Applicant. The Office of Personnel Management does not have to produce anything. The Applicant must prove his or her Federal Disability Retirement case, by a preponderance of the evidence. Thus, 200 pages of treatment notes may show treatment of a medical condition, but reveal nothing with regard to whether the Federal or Postal employee can or cannot perform the essential functions of his or her job. On the other hand, a 1-page medical report may descriptively and effectively illustrate how, over the course of a year, a psychiatric condition has resulted in the cognitive dysfunction of a Federal or Postal employee, and directly and significantly prevents him or her from performing many of the essential functions of the job. It is neither quality nor quantity; sufficiency of evidence is always based upon quality; the quantity is merely a determination of “how much” one must produce in order to satisfy the quality of the evidence.

While there is a pervasive sense of frustration at the entire process called “the law,” such frustration often arises because of a lack of understanding the necessary connection between “the law” and the practical application of the law. In preparing, formulating, and filing a Federal Disability Retirement application under FERS or CSRS, a Federal or Postal worker who is contemplating filing for Federal Disability Retirement benefits must make the connection between “the forms”, “the evidence”, and “the law”. Not to do so will only result to the detriment of the applicant. Further, the legal standard of the burden of proof, while conceptually imperfect, is nevertheless a fairly low standard on the totem poles of burdens. Approach the standard with a sense of truth, integrity and common-sense. Is the evidence believable? Is it true? (Yes – there is a distinction between believability and truth) Would you grant a life-time annuity based upon it? Remember – judges are people, too; moreover, one hopes that they are “reasonable”; otherwise the entire legal system may merely have been mistaken for an insane asylum.

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

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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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