As of March 1, the Senate has finally confirmed two members for the MSPB Review Board, thereby allowing for a quorum to finally exist.
As others have already noted, the two members must now begin the daunting task of deciding upon a 5+ year backlog of almost 4,000 cases. The non-existence of a 3-Judge Panel at the MSPB has been an untenable circumstance impacting thousands of Federal and Postal employees for far too long. Whether a Petition for Review filed by the U.S. Office of Personnel Management or by the Appellant, any such Appeal-by-Petition for Review simply sat in limbo for years and years. Now, with a quorum in place, waiting for the ultimate outcome may be over sooner than later.
Politics aside, the voluminous backlog amassed as a consequence of the disappearance of a quorum at the MSPB for Petition-for-Review cases, is not merely indicative of a dysfunctional government, but to the point: OPM has a disconnect between the legal and the medical, and because of this disconnect, far too many Federal Disability Retirement cases are denied at the OPM level than should be. Why? Because OPM’s “Medical Specialists” fail to recognize that Federal Disability Retirement cases are not merely “medical” issues, but an admixture of both the medical evidence as well as the laws which govern the evidentiary process for eligibility.
The Legal and Medical Disconnect in the FERS Disability Retirement Application Process
Federal or postal employees who need to engage in the process of filing a Federal Disability Retirement application through the U.S. Office of Personnel Management will have to encounter the disconnect between the legal and the medical.
Perhaps, one might argue, in a bureaucracy which handles all retirement applications, including regular, early and disability retirements, the calculation of benefits, the inclusion of COLAs, military buy-back issues, etc. — the left hand will not always (or readily) know what the right hand does or has been doing. The lobotomy of the legal and the medical is an unfortunate part of the process, especially when involving a benefit applied for as a result of a physical or mental disability. As a result of this disconnect, however, cases unnecessarily get denied, and proceed to an appeal before an Administrative Judge at the MSPB and beyond — to an unnecessary Petition for Review.
Federal Disability Retirement is a benefit not merely involving the “medical” aspect of an individual. It is separate and distinct from “regular” or early retirement, which is straightforward and direct (for the most part). The trigger of a regular or early retirement is merely one of factual ascertainment: Does X have the required number of years of service combined with the age? Of course, there may be issues which trigger further analysis and required resolution — such as whether certain months or years were or were not included; whether the military buy-back time was acknowledged; and certain other calculation issues that may be disputed. However, and for the most part, there is no “legal” side to the application for regular or early retirement, in contrast to a Federal Disability Retirement application.
By contrast, in filing for Federal Disability Retirement benefits, multiple legal questions immediately come to the fore. As one is required to file for Social Security Disability benefits, what impact does an approval or — as more commonly is the case — a denial, have on a FERS Disability Retirement case? What influence can a DVA Rating — a Service-Connected, Department of Veterans Affairs disability rating — have upon a FERS Disability Retirement application? What legal impact should they have? What does it mean to apply the Bruner Presumption upon a case?
The disconnect within the 3 stages of the Disability Retirement process becomes immediately evident when a Federal Disability Retirement application is denied. The repetitive OPM statements — despite this author’s endless attempts to “correct” OPM’s mis-application of the law over many years — revealing either (A) Ignorance of the law, (B) Deliberate ignoring of the law (yes, “ignorance” of the law is distinctly different from “ignoring” the law), (C) ignorantly misapplying the law, or (D) Deliberately misapplying the law — and, again, yes, there is a difference between C & D. The “disconnect” is unfortunate, in the end, because it not only wastes the valuable time of OPM’s bureaucracy, but moreover, unnecessarily takes up the court’s time at the MSPB.
OPM’s Disability Retirement “Process”
To understand fully the disconnect between the Legal and the Medical, a short overview of the OPM Disability Retirement “process” needs to be revisited.
There are, ultimately, 3 “stages” of the OPM Disability Retirement process — the first 2 with the U.S. Office of Personnel Management (the Federal Agency which makes the initial administrative review and decision on every Federal Disability Retirement Application) — and the “final” stage, a Hearing before an Administrative Judge at the U.S. Merit Systems Protection Board (MSPB).
For those astute readers, an immediate query follows: What about the “Fourth Stage” — a Petition for Review before the 3-Judge Panel at the MSPB, or an appeal to the Federal Circuit Court of Appeals?
These latter 2 stages preclude any further introduction of evidence (except in very restricted, limited circumstances), and are forums meant to assess the proper application of the law and whether any mistakes were made by the Hearing-level Administrative Law Judge (Stage 3). Thus, the “disconnect” discussed herein applies to Stages 1 & 2 of the process, with Stage 3 as the evidentiary “corrective forum” overseen by an Administrative Judge, and Stages 4 & 5 (MSPB Petition for Review and the Federal Circuit Court of Appeals) being the oversight forum to ensure correct application of the law, without introduction of any new evidence.
As stated previously, as of March 1, the Senate has finally confirmed two members for the MSPB, thereby allowing for a quorum to exist. Hopefully, the reviewing judges will now begin to slowly whittle away at the backlog.
The real problem with the entire process, however, is at the first two stages at OPM — a problem which is exponentially quantified in a complex maze of disconnects. For, at those first 2 stages of the process, OPM fails to appreciate the interplay between law and medicine:
The Initial Application Stage. Often, the employee is not separated; SSDI is not approved because the Federal or Postal employee is still employed and has exceeded the allowable income and thus is prevented from consideration of a Social Security Disability application and, moreover, the preceding years’ performance ratings are successful and often even “outstanding”. The arguments which OPM makes at this First Stage rarely involve the legal side of things. This is because the “medical specialists” at OPM fail to appreciate the legal import and significance of case-law precedents which have mandated certain considerations of significance. Disability Retirement is not merely a matter of medical sufficiency; it is an interplay between law and medicine, and the disconnect between the two at Stage 1 of the process unnecessarily burdens the process.
This is the “Reconsideration Stage”, where the Federal or Postal applicant has been denied the initial Federal Disability Retirement application, and he or she has the right to have it “reconsidered” by OPM and, in the process, has the opportunity to submit additional medical and other evidence.
Many months may have passed since the initial filing of the Federal Disability Retirement application, and certain relevant events may have come to fruition, including: Further deterioration of one’s medical condition; approval of the SSDI application; Removal from one’s Federal Agency for his or her medical inability to perform the job; an increase in the percentage-rating of a Service-connected medical condition. These “changes” may have relevant and significant legal impact upon a Federal Disability Retirement application, and submission of such evidence should, if applicable, be accompanied with legal citations which mandate OPM’s inclusion of such evidence in their decision-making process. Unfortunately, and again, the disconnect at OPM between the legal and the medical becomes obvious, as the “legal” is rarely recognized or acknowledged by OPM.
An application for Disability Retirement benefits under FERS is not merely a matter of sufficient medical documentation — although, sufficiency of medical documentation is certainly a foundational prerequisite for eligibility. Rather, it is a hybrid between legal precedents and sufficiency of medical documentation.
Unnecessary overburdening of the U.S. Merit Systems Protection Board both with appeals before an Administrative Law Judge and a Petition for Review occurs because of a lack of an effective “filter-system” at Stages 1 and 2 of the Federal Disability Retirement process. If such a filter system were to be in place, the continuing and onerous backlog at the MSPB would be greatly reduced. That, and the fact that the Senate might want to consider not playing childish politics which harm the Federal and Postal employee who file for Federal Disability Retirement benefits — a benefit which is merely the contractual provision of his or her employment benefits promised.