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The Importance Of Preparing An MSPB Case In A Federal Disability Retirement Case - For The Long Haul

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Robert R. McGill, Esquire


The theory of the interconnectedness of each species in the universe is based upon the idea of a teleological spectrum. For if the fox which raids the hen house were to stop raiding, and the hens in the hen house were to stop disappearing, who would collect all of the eggs? And if the farmer became wealthy because of all of the eggs gathered, and went to live in early retirement as a wealthy ex-farmer, who would farm? And if Joe could no longer find eggs at the local supermarket, and decided instead to go fox hunting because there was nothing left to do, but couldn't find a fox to hunt because they had all moved to the North Pole because Mr. Farmer closed down his hen house, then what are we all to do?

-- From Fables of Logical Absurdities

Federal and postal employees who are preparing an application for Disability Retirement benefits under FERS or CSRS should always prepare such an application as a submission to be reviewed by a full "administrative process".

More often than not, I receive a call from a potential client who believes that his or her Disability Retirement application should receive an "easy approval". If skepticism rewards in wealth and fame, I would indeed be enjoying an abundance of both. For, despite the over-abundance of confidence in one's disability retirement application (everyone seems to have heard about "Joe down at Agency X who got a disability retirement application approved for an infected hangnail"), most Federal and Postal employees need to properly, systematically, and coherently prepare a Federal Disability Retirement packet with great care.

The very first step in properly preparing for a Federal Disability Retirement application is to expect to have his or her submission subjected to the full gamut of the administrative process. Such an expectation serves two purposes: (1) In the event of one or more denials at the Agency level (the initial submission and review to and by the Office of Personnel Management; the Second Stage of the Process, the Reconsideration Stage, also by the Office of Personnel Management), the applicant is mentally and emotionally prepared for the long-term fight to obtain the benefits, as well as financially prepared to undertake the process, and just as importantly, (2) to prepare the disability retirement packet in such a way that it will withstand the further scrutiny by the later stages of the administrative process - the Merit Systems Protection Board, the Petition for Full Review by the MSPB, and if necessary, the last appellate stage, the U.S. Court of Appeals for the Federal Circuit.

After the Office of Personnel Management has denied the application for Federal Disability Retirement benefits both at the initial stage as well as the Reconsideration Stage, the "appellant" (so named as the person who will be appealing a denial to the next stage of the process) has the right to file an appeal with the Merit Systems Protection Board (MSPB). The case will be heard by an Administrative Judge (an "AJ"), and effectively he takes the case out of the jurisdiction of the Office of Personnel Management, and independently reviewed on what is called a de novo basis. This means that it will be heard by the AJ anew, afresh, or "from the beginning".

De novo, however, does not mean that what was previously submitted by the Federal/Postal employee/applicant is set aside into a black hole, to be disregarded and forgotten; rather, it means that the decisions previously handed down by the Office of Personnel Management will have no abiding impact, and the Administrative Judge will be reviewing the case afresh - looking at all of the medical submissions, the Standard Forms, the Supervisor's Statement, the Applicant's Statement of Disability, etc.; then, holding a Hearing to take the testimony of any relevant additional information: for Federal Disability Retirement cases, this would normally mean direct testimony from the treating doctor.

This is where the "interconnectedness of each species in the universe" of Federal and Postal Disability Retirement comes into play: at the initial stage of preparing a disability retirement application, it is important to prepare the submission with a view towards having it reviewed by an Administrative Judge at the Merit Systems Protection Board. This view of preparing a Federal Disability Retirement case "for the long haul" is important in at least two (2) respects: First, because it forces one to prepare a case in a deliberative, sobering fashion (the juxtaposition of consciously picturing a disability retirement application being reviewed by some unknown person at the Office of Personnel Management, as opposed to having it reviewed by an Administrative Judge), and Second, if the applicant understands at the outset that, under 5 C.F.R. Section 1201.56 (a)(2), the Appellant "has the burden of proof, by a preponderance of the evidence," to prove his or her case as to "entitlement to the benefits", then the seriousness of the application process will naturally force the applicant/appellant to prepare the case with a different attitude.

It is indeed a rare species of a Federal Disability Retirement application that it will receive an "easy approval." When I am speaking to a potential client, I often paint a word picture in the following way: Imagine a linear spectrum where all Federal and Postal Disability Retirement applications are placed. On the far left side is a Postal City Letter Carrier who suffers a grievous injury and becomes a quadriplegic. That person simply needs to gather up his medical records and fill out the Standard Forms, and file it with the Office of Personnel Management. Such a person can be fairly certain that his case is a "one-stage" filing. On the far right side of the spectrum, is an Information Technology Specialist who suffers from anxiety and panic attacks. That person will not only need to prepare his case well, but moreover, will likely need the expertise of an attorney who specializes in Federal Disability Retirement cases. Now, as to the majority of everyone else: you all fall somewhere in the middle of the spectrum.

By being in the "middle of the spectrum", it means that all such cases should, and must, be prepared for the "long haul". Furthermore, the long-haul often includes those steps beyond the Merit Systems Protection Board, for a Petition for Full Review at the MSPB, and further, to the U.S. Court of Appeals for the Federal Circuit. Each step of the process requires a further building block in the foundation; each foundation needs to be securely structured with a sound legal basis, built upon solid facts, persuasive medical evidence, and a compelling story of how a loyal Federal or Postal employee began to suffer from a medical condition, such that the medical condition worsened to a point where he or she could no longer perform one or more of the essential elements of one's job.

Such a story must, at each stage of the process, meet the legal standard of "preponderance of the evidence," and because of this, each Federal Disability Retirement application must be prepared to go through the entire administrative process of review. Failure to do so may mean greater travails later in the process; success in the initial preparation of the process provides for a better chance that one's Federal Disability Retirement application will only need to be a "one-stage" filing. All of which brings us back to the oldest adage of all: Penny wise, pound foolish.
About the Author

Robert R. McGill is an attorney who specializes in federal disability retirement, a practice area he dedicates 100% of his time helping Federal and Postal workers secure their disability retirement benefits under both FERS and CSRS. For more information about his legal services, publications and forum, please visit his website:
http://federaldisabilitylawyer.com/


Posted with Permission from: MyFederalRetirement.com

The Importance Of Preparing An MSPB Case In A Federal Disability Retirement Case - For The Long Haul
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