FERS Disability Retirement: Understanding the Legal Standard Will Help You Win Your Case

Legal standards of proof provide various levels of criteria which, depending upon the genus of law (e.g., administrative, civil, criminal, etc.), are an important factor to understand before entering the arena of legal battles.

Thus, generally speaking, the three most common applicable standards of proof which are recognized in law are:  Preponderance of the evidence; Clear and convincing evidence; and Beyond a reasonable doubt.  The conceptual demarcation between each of the three are obviously easier to recognize when the comparisons are between “preponderance of the evidence” and “beyond a reasonable doubt”, as opposed to making a comparative analysis between the first and the second, or between the second and third.  For, boundaries between levels of such standards, when close to proximal linguistic constructs, can overlap and create incestuous overlapping.  One can thus argue that where X is ‘clear and convincing’, it may also be beyond a reasonable doubt.  Whereas, to show that X is proven by a ‘preponderance of the evidence’ is a far cry from asserting that it is beyond a reasonable doubt.  On the other hand, for X to be beyond a reasonable doubt, would logically require that it is both ‘clear and convincing’ as well as ‘more likely than not.’  The higher standard always subsumes the lower ones, but the lower ones do not necessarily satisfy the higher ones.

While the theoretical application of such standards of proof are easy to discuss in an academic sense, it is always the “details” of how one goes about reviewing, analyzing and applying the evidence that betrays the true mechanical application in any legal forum.  In filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, the Federal or Postal employee attempting to prove the nexus between one’s medical condition and his or her medical inability to perform one or more of the essential elements of one’s job, needs to only “prove” the lowest of the three standards — that the evidence presented is more “likely” than not to be true.  For all Federal Disability Retirement cases are based upon the “preponderance of the evidence” standard of proof.

There is, as always, the academic, theoretical world of evidentiary standards, as opposed to the practical reality of application and practice.  In the theoretical world, academics and professors of law speak in terms of conceptual hierarchies and what constitutes satisfaction of a particular standard of proof.  In the practical world, where the actual battles are fought, lawyers and the applicants who are represented by lawyers in a Federal Disability Retirement case, must constantly contend with the issue of whether the applicable standard of proof — “preponderance of the evidence” — is being strictly adhered to.

The problem with standards of proof is always found in the details of such standards.  One would think that whether a piece of evidence, a medical report, the testimony of a doctor, or the lay person’s opinion on a matter, is “more likely than not” to be true, should be a fairly easy standard to meet.  Moreover, if there is no rebuttal evidence — and in a Federal Disability Retirement case, there is never any true rebuttal evidence — it should almost be a certainty that the appellant would prevail in such a case.  Given all of the above, how does one “lose” a Federal Disability Retirement case?

To begin with, the perversion of a standard of proof occurs with the insidious infiltration of inappropriate and invidious conceptual constructs — ones which are anathema to the paradigmatic understanding of the standard itself.  Thus, whereas the higher standard always subsumes any lesser standard of proof, the inverse should never be required in a case.   The standard of proof should always be weary of the introduction of terms which tend to elevate or denigrate the standard itself, and sanitation and inoculation against corruption of the proper standard is a necessary part of every case.  Since ‘precedence’ is what makes a case applicable for future use, the constancy of the standard of proof must remain true and unchanging.

One may argue that a piece of evidence X establishes that it is beyond a reasonable doubt that one is entitled to Federal Disability Retirement benefits; and since X meets the highest standard, by logical necessity, it must by definition meet the lower standards of ‘clear and convincing’ as well as ‘preponderance of the evidence’.  Obviously, the inverse would not be true — that to say that X establishes the satisfaction of the ‘preponderance of the evidence’ standard necessarily meets the criteria of ‘clear and convincing’ and ‘beyond a reasonable doubt’ standards; for the satisfaction of the lower does not entail the higher, whereas meeting the higher standards subsumes by logical domino effect each of the lower standards or proof.

In a very real practical sense, the Office of Personnel Management has the highest burden of proof to meet, precisely because they offer no evidence, or rarely offer, in a Federal Disability Retirement application.  Judges often have to be reminded that there is a wide chasm between (a) the question asked and (b) the answer given.  Questions do not constitute evidence; only answers are considered evidence.  How a question is asked, of course, can sometimes influence the evidentiary import of the answer, and the tone and inflection of a question can undermine the apparent believability of an answer.  But since OPM rarely, if ever, introduces any actual evidence in a Federal Disability Retirement application, it should be fairly easy for most Federal Disability Retirement applications to be approved.

Preponderance of the evidence” is the lowest of the three standards of proof discussed herein.  Such a standard, by some interpretive perspectives, merely requires a showing that the evidence show that it is “more likely than not” that the Federal or Postal Worker is no longer able to perform one or more of the essential elements of one’s job.  Understanding the requirement of the applicable standard of proof will help the potential Federal or Postal worker who is considering filing for Federal Disability Retirement benefits, in assessing the quality and extent of the evidence needed to prove one’s case.  The danger, of course, is in thinking that, because it is a very minimal standard of proof, not much is needed to win.  One should never approach a Federal Disability Retirement case in such a de minimis manner.  It is better to keep in mind the principle mentioned above that the higher standard of proof subsumes by logical necessity the lower standard of proof.   That being said, it is best to prepare a Federal Disability Retirement case by setting out to prove the highest standard of proof; and by doing so, by logical necessity, practical application, and persuasive authority, one will ensure the best chance of success of obtaining a Federal Disability Retirement benefit.

FERS Disability Retirement is a lifetime benefit provided for the Federal or Postal worker who is (A) no longer able to perform his or her particular kind of job, as a result of a medical condition which prevents the continuation of such work or is otherwise inconsistent with retention in such a position, and (B) beset with such a medical condition which will last for a minimum of 12 months or more.  In order to become eligible, however, one must prove by a preponderance of the evidence that one is qualified for such a benefit.  In order to meet the qualification criteria, as set by statute and regulation, one must understand, and by understanding, meet the statutory requirements, of what is meant by “preponderance of the evidence.”  The legal burden of proof is that which determines the eligibility criteria; by understanding the legal burden of proof, one takes the first steps in preparing and formulating the basis for eligibility, and thereby securing one’s future.  Never take for granted that which one must prove; for the validity and value of “proof” is determined by the applicable standard of proof, and where such a standard is applied by judges — i.e., human beings who are imperfect and susceptible to persuasive rhetorical arguments — room for error must be factored in when preparing, formulating and filing for Federal Disability Retirement benefits, whether under CSRS or FERS.


Robert R. McGill, Esquire
Federal Disability Retirement Lawyer

Original post date: 03/12/2012.   Last Updated October 11, 2019.


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 OPM Disability Retirement benefits under both FERS and CSRS.  For more information about his legal services, publications and forum, please visit his FERS Disability Retirement website.


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