FERS Disability Retirement Law: Just Because OPM Says So, Doesn’t Make it So

Federal employees filing for FERS disability retirement should expect a fair application review, but the author says this may not always happen.

A Federal or Postal employee who files for Federal Disability Retirement benefits under the Federal Employees Retirement System (FERS) should expect a fair and impartial review of his or her application.

The U.S. Office of Personnel Management (OPM) is the Federal Agency which reviews all Federal Disability Retirement applications. Such an application must, of course, meet the statutory criteria as delineated under 5 U.S.C. 8451, as further expanded under the applicable Code of Federal Regulations and subsequent case-law precedents.

Such legal criteria requiring minimal prefatory eligibility provisions include:

  • Completing at least 18 months of civilian creditable service;
  • not declining a reasonable accommodation offered by the Federal Agency or the U.S. Postal Service; and
  • establishing an incompatibility between the medical condition and the type of job which the Federal or Postal employee occupies.

In order to establish the “nexus”, or the connection between one’s medical condition and its incompatibility with the job one does, the Federal Disability Retirement applicant can go about proving his or her eligibility by (A) Showing that there is a deficiency in one’s performance, conduct or attendance or, (B), by establishing the existence of an “incompatibility” between the medical condition and the type of positional duties one must perform in the last position of record occupied by the applicant.

OPM: The “Gatekeeper” of Federal Disability Retirement Applications

The U.S. Office of Personnel Management — the “gatekeeper” for all Federal Disability Retirement applications — will “attack” a Federal Disability Retirement application on multiple fronts, by use of different kinds of arguments, and the Federal or Postal employee filing for Federal Disability Retirement benefits should be aware of the types and methods of such arguments. Being preemptively aware of the types of arguments one may face will allow for the Federal or Postal worker intending upon filing for Federal Disability Retirement benefits to know what to expect, and to prepare one’s case accordingly.

Of course, one would expect that the arbiter of an important benefit such as a Federal Disability Retirement annuity would treat all cases equally — for, fairness dictates that whether an individual Federal Disability Retirement applicant is represented by a lawyer, or not, should not matter, and should not determine the equation resulting in an approval or a denial. However, as individuals are all-too human, so it may be that an unrepresented individual may be treated with greater disrespect because of the presumed lack of legal knowledge. We shall never know.

Denying FERS Disability Retirement Cases

What we do know, however, is that OPM will engage in various tactical arguments in denying a Federal Disability Retirement case, and below are a few examples.

Hypothetical One

An individual has debilitating migraine headaches 20 times per month. Every treatment modality has been engaged, including preventative beta-blockers, etc.

Treatment notes show that, over the course of the last 6 months, the migraine headaches are reduced to 10x per month, with another 5 – 10 days with headaches of a severity such that he or she is unable to focus or concentrate.

OPM’s “quantitative” argument? Your medical condition has improved 50% or more, and thus does not establish that there is a medical condition of such “severity” as to conclude a disabling medical condition.

What is missing, here?

First off, the baseline premise is ignored. If you start off with only 4 Migraines a month and reduce it to 2, an argument can be made that the reduction in half has resulted in significant improvement such that there is minimal impact upon your ability to perform the essential elements of your job. But where the baseline begins at 20, a 50% decrease still leaves a significant impact upon one’s ability to perform the essential elements of one’s job. The medical evidence shows that this is the best which can be achieved, but from OPM’s viewpoint, the abstracted argument establishes that you are no longer “disabled”.

Furthermore, OPM will often ignore — whether deliberately or not, is of no consequences and results in the same conclusion — what type of job one is engaged in.

If, for example, the position involves sedentary administrative duties, as opposed to being a physician or pharmacist who must have the requisite focus and concentration to perform duties where there is no room for error, the nexus between the quantitative argument of “how much” and the qualitative connection to “what kind” becomes an important element of discussion and argumentation.

Just because OPM says that your medical condition is not “severe enough”, doesn’t make it so.

Hypothetical Two

A secretary working for the Federal Bureau of Prisons suffers from anxiety and panic attacks. The panic attacks, when they occur, are so severe as to paralyze the individual and render him or her ineffective in any capacity.

OPM’s argument: “Your position is essentially a sedentary one and could be easily accommodated with periodic breaks whenever it appears that an onset of a panic attack in impending.”

No mention is made of an essential component involving all FBP employees: Everyone, from the kitchen workers to the secretary, are first and foremost Correctional Officers who are required to respond to riots, lockdowns and fluid circumstances of potential harm throughout the federal correctional facility on any given day, at any moment. A panic attack which renders a person unable to respond will not only endanger himself or herself, but will potentially result in harm to other workers because of the inability to respond quickly and appropriately.

Just because OPM says that your medical condition doesn’t impact your official position, doesn’t make it so.

Social Security Disability and FERS Disability Retirement

Beyond the failure of OPM to make cogent arguments in favor of a Federal Disability Retirement application, two areas which have previously been discussed (Federal Disability Retirement: OPM’s Denial Strategy, FedSmith, March 9, 2021) involve the “implication” arguments — of making a statement “implying” that it has some relevance and justification in denying your Federal Disability Retirement application. Thus, the statement, “Your Social Security application was denied” — stated in a vacuum, may appear as merely an innocent statement of fact.

However, when placed strategically at the end of a Denial Letter from the U.S. Office of Personnel Management in denying your Federal Disability Retirement application, implies that somehow, in some way, the denial of your Social Security filing is further justification in denying your Federal Disability Retirement application.

Again, just because OPM says so, doesn’t make it so.

The reverse is, of course, true — but OPM will not say so, even if it is so. Filing for Social Security Disability benefits is a requirement which must be satisfied sometime during the process of filing for Federal Disability Retirement under FERS. Most people will be summarily rejected by Social Security because most people who file for Federal Disability Retirement benefits under FERS are still employed, and the “earnings-exceeding” criteria under SSDI will automatically disqualify you.

On the other hand, in those rare circumstances where SSDI is approved, the long-standing history of case-law affirmation as represented in Trevan v. Office of Personnel Management, 69 F.3d 520, 526-27 (Fed. Cir. 1995) applies, where the Federal Circuit Court found that in making a determination of eligibility for disability retirement under FERS, the Board must consider an award of SSDI disability benefits together with medical evidence provided by the appellant to OPM, and other evidence of disability.

Why? Because it makes sense.

The Federal Circuit Court wanted a consistency of determinations concerning disabilities, by all governmental agencies and departments. Social Security obviously has a stricter standard, and requires that an applicant be “totally disabled” in order to award benefits.

Further, if the application to the Social Security Administration was based upon the identical medical disabilities as stated on one’s application to the Office of Personnel Management, it would make sense that a determination of being “totally disabled” by one Federal Agency would necessarily implicate the need for another Federal Agency (i.e., the U.S. Office of Personnel Management) to make a similar and consistent finding. But OPM won’t say so, even if it is so.

Conclusion

The point of all of this is to show that Federal and Postal employees need to understand that the administrative process of filing for Federal Disability Retirement benefits is not merely a matter of presenting “medical evidence” (although, clearly, that aspect comprises a great part of the process), but a “legal” one as well, with room for interpretive argumentation. By “interpretive argumentation” is meant that differing perspectives on the validity of evidence presented are open to arguments made, and that is why knowledge and application of case-law precedents are important to make — or, at least be aware of them so that when OPM says something is so, it doesn’t necessarily make it so. 

Ultimately, the “safety-net” provision in a Federal Disability Retirement application process is contained in the fact of multiple “stages” — of the Initial Application Stage; if denied, one can have your case “Reconsidered” at the Reconsideration Stage, where you will be (A) given the opportunity to have it reviewed by another “Medical Specialist” at OPM (of course, one may be suspicious that turning it over to another OPM reviewer is not really an objectively sound methodology) and (B) be allowed to present additional medical and other evidence to reinforce and strengthen one’s case.

If the case is further denied at the Second, Reconsideration Stage, then the Federal Disability Retirement applicant can take it to the Third Stage of the process — an appeal to the U.S. Merit Systems Protection Board. This Third Stage of the process — an appeal to the MSPB — will take it out of the hands of OPM and place it before an Administrative Judge, and further review the conclusions reached by OPM. It will, in the end, test to see whether or not just because OPM says so, whether it truly is so.

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. 

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