FERS OPM Disability Retirement: Legal Sufficiency

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By on February 16, 2019 in Retirement with 0 Comments

Woman sitting in a wheelchair as she works at her desk on a computer with a stack of paperwork beside her computer workstation - disability retirement, handicapped

What constitutes “legal sufficiency” in a FERS Disability Retirement application? Is there a “test” that can be applied? Can a Federal Disability Retirement application be evaluated prior to submission, and given a “rating” as to whether or not it is legally sufficient? For, in the end, meeting legal sufficiency in a Federal Disability Retirement case should be the primary focus of every applicant. Unfortunately, it is often the last thought put in.

It may be that a Federal employee or U.S. Postal worker who suffers from a medical condition, and who can no longer perform one or more of the essential elements of one’s Federal or Postal position, can simply jot down the medical conditions suffered within the blocks provided on SF 3112A, then gather one’s medical records and treatment notes, submit the application — and get approved.

However, as the U.S. Office of Personnel Management remains the “gatekeeper” of all Federal Disability Retirement applications, the chances of meeting the criteria of “legal sufficiency” by simply submitting a Federal Disability Retirement application without careful preparation and legal argumentation become considerably lessened.

“Sufficiency”

What constitutes “sufficiency”? For example, does the mere fact that an agency removes an individual for his or her medical inability to perform the essential elements of one’s Federal or Postal job “sufficient” to meet the legal criteria for an approval of a Federal Disability Retirement application?

One might think so — the argument being, since my Agency believes I cannot do my job because of my medical conditions, surely that would qualify me for Federal Disability Retirement benefits?

That is what is known as the “Bruner Presumption” — based upon the well-established law that an employee’s removal for his or her medical inability to perform the essential functions of one’s job or position constitutes prima facie evidence that one is entitled to disability retirement as a “matter of law”, and that the burden of production then shifts to OPM to produce evidence sufficient to support a finding that the applicant is not entitled to disability retirement benefits. See Bruner v. Office of Personnel Management, 996 F.2d 290, 294 (Fed. Cir. 1993); Marczewski v. Office of Personnel Management, 80 M.S.P.R. 343 (1998).

As a legal presumption, it is a powerful tool to possess and apply — and to properly cite in a Federal Disability Retirement filing — but is it “legally sufficient” in and of itself? Hint: neither the Federal Agency nor the U.S. Postal Service are qualified medical facilities, and as a Federal Disability Retirement application must be based upon proof of medical evidence, would removal based purely upon a finding of “medical inability to perform” be sufficient?

Similarly, how about a finding by the U.S. Department of Veterans Affairs that an aggregate of Service-connected disabilities rates a person as 90% disabled, or even 100%, with a conclusive determination of “unemployability”? Does that, in and of itself, meet the “legal sufficiency” test in a Federal Disability Retirement case?

The argument would go somewhat as follows: How can I be deemed “unemployable” but not qualify for a FERS Federal Disability Retirement case if another Federal Agency (the U.S. Department of Veterans Affairs) has already found that I cannot do any job at all? Certainly, that is a powerful argument, and under Simpkins v. OPM, such an argument may be very persuasive — but not determinative.

In a parallel vein of argumentation, one would naturally assume that an approval of a Social Security Disability determination would conclusively meet the “legal sufficiency” test in a FERS Disability Retirement application. The argument would go somewhat as follows: In order to qualify for Social Security Disability benefits, one must have a showing of “total disability”.

In a FERS Disability Retirement application, only a “lower standard” of showing that a Federal employee or U.S. Postal worker cannot perform at least one, but perhaps more than one, of the “essential elements” of one’s Federal or Postal job, needs to be shown. If a higher standard of proof has been met, then surely the lower standard has also been satisfied? Thus, since I qualify for Social Security Disability benefits, I therefore qualify for Federal Disability Retirement benefits under FERS.

It is, again, a powerful argument, and is impliedly supported by Trevan v. OPM, and all subsequent case-law applications, where the Federal Court concluded 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.”

Thus, the key and operative concept is “consider” — for, like the Bruner Presumption, the Simpkins persuasive evidence and the Trevan consideration, all may be necessary components to argue, if applicable, and should be included in preparing an effective Federal Disability Retirement application (again, if applicable) — but not necessarily sufficient in winning an approval from the U.S. Office of Personnel Management.

What is “necessary and sufficient” in any endeavor engaged is always a challenging one. Medical evidence is certainly “necessary”, but what makes it, and how much of it, is required in order to make it “sufficient”?

That is the distinction between “qualitative” application and “quantitative” inclusion — and how much is needed and what constitutes “enough” evidence to meet the sufficiency test in any legal filing.

For FERS employees considering applying for Federal Disability Retirement benefits through the U.S. Office of Personnel Management, the inclination is to compile 10-years worth of medical documentation and, by doing so, emphasize the “quantitative” weight of one’s medical evidence. But in doing so, one may be defeating one’s own argument — for, weren’t you able to work during those 10 years? Or, in a similarly self-defeating approach, the Federal or Postal employee may logically argue that because one has been deemed “disabled” by another Federal Agency, that therefore OPM should also make a similar finding.

In the end, any determination concerning “legal sufficiency” includes an element of subjectivity, and it is wise to consult with an experienced attorney who has had a wide encounter of experience in Federal Disability Retirement Law. For “legal sufficiency” often involves particularization depending upon the medical condition suffered, and a spectrum of what is necessary depending upon the individual circumstances of the Federal or Postal applicant.

Some cases can be won based upon a half-inch of medical notes; others may require a greater quantity to satisfy OPM’s evaluative gatekeeping. And while legal arguments such as the Bruner Presumption, the Simpkins argument or the Trevan consideration (as well as many others not referred to here) may enhance a Federal Disability Retirement application, they are never sufficient in and of themselves to meet the “sufficiency test”.

© 2019 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 Federal Disability Attorney blog. 

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