FERS & CSRS Disability Retirement: The Importance of Recognizing the Laws to be Applied

December 8, 2015 4:33 PM
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Societal complexities create conundrums characteristic of cave dwellers of past; of drawings left behind and trails of excrement like footprints in the snow to be discovered as fossilized fodder, and the hardy laughter of the joke from a Neanderthal upon modern man.
—  Proverbs unknown

Perhaps it begins when we are children; did blocks fascinate, or was play-doh the preferred amusement?  Was it the linear methodology that attracted, or the messy enmeshment of sticky connections providing for a realm of creativity beyond sharp lines and clear boundaries?  Or were you the type of child who went beyond mere and ordinary creativity, and used the sticky clay to solidify the wooden blocks, combining both in order to reach greater heights of childhood boundlessness?  And did this defiance of conformity extend beyond, into adulthood?  That is the question which fascinates, for the psychology of law and the underpinnings of rational argumentation must combine the best of both worlds in order to be effective in pursuing a legal course of action.

Filing for Federal Disability Retirement benefits, whether the Federal employee or the U.S. Postal worker is under FERS, CSRS, or CSRS-Offset, is not merely a matter of completing the “Forms”; if that were the case, any mindless software algorithm could satisfy the prerequisites.

Do laws matter?  Does a working knowledge of the legal requirements, the statutory authorities, the case-law precedents, mean anything for the Federal or Postal employee intending upon filing for Federal Disability Retirement benefits?  What consequences can there be from new decisions rendered by the Federal Court of Appeals and the U.S. Merit Systems Protection Board?  Does lack of knowledge result in a handicap, and will it harm a disability retirement application at the outset?

Take, for example, the “shifting burden” functions in a Federal Disability Retirement case, when the Bruner Presumption is invoked.   Upon reviewing the testimony and evidence presented at the Hearing of a Federal Disability Retirement case, in response to a denial by the U.S. Office of Personnel Management, the Administrative Judge must delineate the (rather confusing conundrum of) shifting “burden of production” where OPM can “meet its burden” by demonstrating a “lack of objective medical evidence providing a reasoned explanation of how certain aspects of a particular condition renders the employee unable to perform specific work requirements” Harris v. Office of Personnel Management, 110 M.S.P.R. 249 (2008).  And if OPM meets its burden of production, “then the Board will weigh the totality of the evidence produced by both sides to determine if the appellant is entitled to disability retirement benefits.” Trevan v. Office of Personnel Management, 69 F.3d 520, 527 (Fed. Cir. 1995).

What can this all mean?  Can arguing for insufficiency of medical evidence alone rebut the burden of production?  What are the requirements, and which criteria are applied throughout the process?

The key is contained in the following statement of singular significance:  “In spite of the shifting burdens of production, the appellant retains the ultimate burden of persuasion to establish entitlement to disability retirement benefits.” Newkirk v. Office of Personnel Management, 101 M.S.P.R. 667 (2006).

Thus, regardless of the “shifting” burdens annotated throughout cases, and despite never quite knowing where the horizon begins with the sun or ends with darkness, sufficiency of evidence must never be taken for granted, and always the additional pinprick may be the deciding factor in hitting the vein of gold.

Yes, laws do matter and, moreover, knowledge of what the law does, can do, and may impact, will significantly influence the outcome of any litigation, including administrative actions that encompass Federal Disability Retirement fights.  As such, it is indeed important to have a working knowledge of the legal requirements, the statutory authorities, the case-law precedents, and all that these entail, when a Federal or Postal employee intending upon filing for Federal Disability Retirement benefits enters the fray of the battle.  In the end, outcomes can be changed by citing decisions rendered by the Federal Court of Appeals and the U.S. Merit Systems Protection Board, and lack of knowledge can result in a handicap, and harm a disability retirement application at the outset.

As a “presumption” is quite obviously an advantageous legal tool, how does one attain such a status of “presumption of disability”?  And more importantly, is it of any significance and weight in filing a Federal Disability Retirement claim?

In a previously-written article, we discussed (see The Bruner Presumption Today:  extension by logical implication, May 19, 2015) the importance of using the laws concerning separation from service based upon one’s medical inability to perform the essential elements of one’s job.  That article noted the expansive residual impact from the decision of Angel v. OPM (April, 2015), and indeed, one may interchangeably use the terms “presumption of disability” with “the Bruner Presumption”, for they are one and the same when used in the context of a Federal Disability Retirement claim.  To better understand the importance of the applicability of the “presumption of disability”, it is well to keep in mind three foundational principles:

  1. One’s own agency (unless one works for OPM) is not the agency that grants a disability retirement benefit.  This may seem like a fairly obvious fact, but keeping the distinction between one’s own agency in contradistinction from the large and behemoth-like agency as the U.S. Office of Personnel Management, is important.  One’s own agency can maintain an employment status, or terminate, but cannot decide upon a Federal Disability Retirement application.  Only OPM can do that.  Further, if a Federal employee or U.S. Postal Worker is terminated for his or her medical inability to perform the essential functions of one’s job, such a separation from Federal Service does not alone grant one a “presumption of disability” or the “Bruner Presumption”; rather, once separated, it is then a legal tool of argumentation to be brought to the attention of the U.S. Office of Personnel Management.
  2. At the Initial Stage of a Federal Disability Retirement application, as well as the Second, or “Reconsideration Stage” of a Federal Disability Retirement application, the U.S. Office of Personnel Management rarely considers the full import of legal arguments.  The “Bruner Presumption” or “presumption of disability entitlement” should still, nonetheless, be invoked and OPM must be so apprised, but even the loudest shouts may not reverberate enough or effectively down through the endless corridors at 1900 E Street, N.W., in Washington, D.C.
  3. As OPM is a large bureaucracy receiving thousands upon thousands of Federal Disability Retirement applications, is the “best approach” one of block building, play-doh application, or a combination of both?

Wooden blocks and play-doh represent two primary and differing approaches.  Perhaps both get us to the same place.  The former reflects a systematic approach and methodology – a “clean” argument, one might proffer.  The latter is more indicative of a proverbial “shotgun” approach, of gathering and throwing a compendium of essential and miscellaneous evidentiary compost, and filing with OPM.  In either methodology, it is important to argue the applicability of the Bruner Presumption, if one has been separated from Federal Service, even if the termination was not explicitly based upon a “medical inability to perform” the essential functions of one’s positional duties.

Knowing the context of the legal arena one is about to enter is as important as understanding the content of the laws to apply.  Where legal arguments matter; at what stage of the process; and when to argue the law and escalate the stakes to be tallied; these are all included in recognizing the significance of the “totality of the evidence”.  Presumptions should never be presumed; they must, as well, be argued.  As Wittgenstein once quipped, the fact that you cannot clearly demarcate the line between darkness and light from the glowing campfire nearby does not mean that there is no line of distinction.

In going through an example of applying the Bruner Presumption, we can see the “shifting burdens” reflecting the two childhood playground approaches.  Applying the Bruner Presumption is important, and while OPM – at the Initial Stage and the Reconsideration Stage of the application process – may disregard the “building blocks” inherently shown by arguing the facts, the law, and the connection between the two, it is important to always prepare one’s Federal Disability Retirement application by utilizing the combination of the wooden blocks together with the play-doh approach, in order to bridge the connection in meeting the ultimate burden of production:  the “totality of the evidence” test.

For, in the end, as with all conceptual constructs of life, the weakest link is what defeats every endeavor.  The building blocks of an effective Federal Disability Retirement case, like the foundations that incrementally rise to become a skyscraper, must include all of the components that comprise satisfaction of the criteria calling for the “totality of the evidence”.  This can include legal presumptions, which arise as a result of a separation from service based upon the Federal or Postal employee’s medical inability to perform one or more of the essential elements of one’s positional duties.

In the end, however, the presumptive tool of a legal disability based upon a separation from service is merely one piece of persuasive evidence to be included, and like fossilized footprints revealed in hardened molds discovered by chance, it should never be relied upon as the singular key to success, but merely as one of many tools reserved in the craftsman’s cache for artistry of deliverance.

© 2020 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 OPM Disability Retirement benefits under both FERS and CSRS. For more information about his legal services, visit his Federal Disability Lawyer website.