20 Top Questions and Answers about OPM Disability Retirement

OPM Disability Retirement: SF 3112A

What is the difference between “Federal” Disability Retirement and “OPM” Disability Retirement?

U.S. Office of Personnel Management (OPM)
U.S. Office of Personnel Management (OPM)

Although some people may confuse “Federal” Disability Retirement to mean “Social Security” Disability Retirement (SSDR) because this latter benefit is a type of retirement program administered by a U.S. Federal agency, that is, the Social Security Administration (SSA) — nevertheless, most of the time “Federal” Disability Retirement actually refers to “OPM” Disability Retirement.  OPM is the acronym which stands for the U.S. Office of Personnel Management, and many Federal lawyers and employees choose to use this term to differentiate it from SSA’s disability program — the Social Security Disability Retirement, which is also known as Social Security Disability Income (SSDI).

Thus, Federal Disability Retirement and OPM Disability Retirement are basically the same disability program.  OPM Disability Retirement is a disability retirement plan available to Civilian Federal employees.  It allows a Federal employee to retire earlier than “regular” retirement if an injury or medical condition prevents the Federal employee from performing the main work tasks of the Federal position he or she was hired for.  These physical or psychiatric medical conditions should be expected to last one year or longer.

What is the difference between “FERS” Disability Retirement and “CSRS” Disability Retirement?

CSRS v. FERS Disability Retirement benefits
CSRS v. FERS Disability Retirements

Federal Employees Retirement System (FERS) and the older Civil Service Retirement System (CSRS) are the names of two sets of U.S. Codes, rules and regulations that together dictate the laws and benefits that Civilian Federal employees will receive in the United States.   Military personnel are covered by the VA Disability Retirement program, where “VA” stands for the United States Department of Veterans Affairs.

Both of these types of retirement programs, FERS and CSRS, are also part of the OPM Disability Retirement program (e.g., all FERS Disability Retirement claims are also OPM Disability Retirement cases, but a particular OPM Disability Retirement claim may or may not also be a FERS Disability Retirement case), but basically the difference has to do again with the set of Federal employee laws you were hired under.  Almost all Federal employees hired after December 31, 1983 are automatically covered by FERS.  Thus, in practice and in most cases, when a Federal Lawyer or a Federal Agency’s Human Resources Specialist talks about FERS Disability Retirement, he or she will typically be talking about OPM Disability Retirement.   The term FERS Disability Retirement is thus more specific, but since most Federal employees today are covered under FERS rules, we often use them as synonyms, too.

What is the difference between OPM “Regular” Retirement and OPM “Disability” Requirement?

Regular v. Disability Retirement from OPM
Regular v. Disability Retirement from OPM

OPM Regular Retirement is when a Federal or Postal employee retires from Federal Service due his or her age and years of Civil service.  As noted before, Federal Disability Retirement is a medical-based retirement available for FERS and CSRS employees.  However, this medical condition or “disability” does not have to be total disability as it is the case of Social Security Disability Retirement cases.

The medical condition must be expected to last a minimum of a year.  The illness or injury should be categorized as “chronic” in the sense that it won’t allow the Federal employee to work very well (technically the medical condition will not allow the employee to perform the basic “essential elements” of the job he or she was hired for by the Federal Agency).  From our own experiences, most former Federal employees who are now under disability don’t even consider themselves to be disabled or incapacitated.

Perhaps this is a psychological self-defense mechanism, but it is a fairly accurate simplification that describes the self-image of many Federal disability retirees now happily working in different jobs and even living overseas.  There are more technical definitions we can explain here but for now these simple explanations will suffice.

What is the difference between OPM Disability Retirement and Federal Workers Comp?

OWCP Disability claims
OWCP Disability claims

The Federal Employees’ Compensation Act (FECA) Program is an entirely different program which assists Federal employees and Postal workers who have sustained work-related injuries or diseases by providing them financial and medical benefits and help them to return to work.  Federal Workers Compensation benefits are considered to be a short- and medium-term disability program.   In other words, “OWCP” benefits (from the Office of Workers’ Compensation Programs within the Department of Labor) are not supposed to be a disability retirement program.

A key difference is that in OPM Disability Retirement, the qualifying medical condition can predate your first day of Federal employment.  Under OPM Disability Retirement rules, the qualifying medical condition doesn’t have to be job-related, either.  For instance, if you are a Mail Carrier and your eyes get hurt playing golf while vacationing in the Bahamas, and as a result of this accident, you can’t permanently drive your Postal vehicle safely anymore, then even though you will not qualify for OWCP benefits, you may still qualify for OPM Disability Retirement.

Another difference is that while most Federal and Postal employees are usually aware of the existence of Workers Comp or FECA disability benefits, at the same time, many of them have never heard of such a thing as “Federal Disability Retirement benefits”.   Many tend to confuse it with Social Security Disability Retirement.  Also, even when they are aware of this OPM disability program, they tend to believe that this program is administered by their own Agency or by the U.S. Postal Service.  This is not true, either.  Federal employees are not at the mercy of their employing Federal agencies.

How hard is to get Federal Employee OPM Disability Retirement?

How hard is to get OPM Disability Retirement?
How hard is to get OPM Disability Retirement?

This is a very general question, and the answer really depends not only on your specific Federal position (on the basic positional duties of the job you were hired for by your Federal Agency or the U.S. Postal Service), but it also depends upon your particular physical or psychiatric condition and the nature of your medical limitations.  Most Federal Disability Retirement Attorneys would argue that the general requirements of OPM Disability Retirement are easier to meet than those of the VA and even the SSA.  This is true in almost all medical cases, but a potential difficulty to qualify for OPM Disability Retirement may arise due the fact that most doctors are not readily familiar with the legal criteria necessary to write a useful medical opinion.  In fact, all they will usually do is just to fill out forms without knowing what they need to legally prove.  In the end, you may end up being considered to be “disabled” — and yet your OPM Disability Retirement application can still be denied.

I only have only “X” years of Federal Service, do I qualify for Federal Disability Retirement?

Number of years needed to qualify for OPM Disability Retirement or Postal Disability Retirement
Number of years needed to qualify for OPM Disability Retirement or Postal Disability Retirement

If you are a CSRS employee, you will need 5 years of creditable Federal Service to qualify for disability Retirement.  However, Federal employees covered by the FERS system need only 18 months of Federal service to qualify for OPM Disability Retirement.  If you are not sure which retirement system you were hired under, the general rule is that if you were hired after 1983, you are a FERS employee.

In many typical situations, older Federal employees with many years of public service will be able to qualify for either “regular” or “disability” retirement (in that case they should still consult with an OPM Disability Retirement attorney to help them to figure out which one will pay the more).   Younger employees who suffer from a medical condition will not always be able to qualify for OPM Disability Retirement for several reasons.  In such a case, many Federal agencies will typically behave unethically, hoping that the employee will just quit and leave the Federal Service empty-handed.  This happens in many Federal agencies, but the U.S. Postal Service is especially guilty of this type of behavior.

I suffer from a specific medical condition, does this condition necessarily qualify for OPM Disability Retirement?

Brain inflammation in Federal employees
Brain inflammation in Federal employees

While there is not an “official” list of OPM qualified medical conditions (as it’s the case of SSA), you will be considered disabled under OPM Disability Retirement rules if your particular physical or psychiatric condition(s) prevent(s) you from continuing to perform efficient service in the Federal Service.  So, in theory, it is not so much “what” your medical condition is, but “how” it interferes with the quality of your work performance.  Even if you are accommodated but you can’t work efficiently, you may qualify for a Federal Disability retirement pension.  That is basically the main idea with the original disability provisions under both FERS and CSRS laws.

Of course, in the “real world”, they would rather let you go empty handed.  Therefore, in order to qualify for disability retirement, your treating physician will typically need to be familiarized with FERS and CSRS laws to fill out the proper OPM medical forms to help you to explain to OPM how your current medical condition will make you eligible for OPM Disability Retirement benefits.  There are several legal and medical issues your primary health care provider should know to achieve this end.  However, just to illustrate an example of a potential problem, if your primary health care provider doesn’t write that your particular physical or psychiatric conditions will be expected to last for at least one year, even if that is very obvious, your medical disability application will likely be defeated and denied.

Who approves or denies the Federal Disability Retirement application?

OPM and the Disability Process
OPM and the Federal Disability Retirement Process

During the first two stages of the Federal Disability Retirement process, the Federal Agency responsible for reviewing your Federal Employee Disability Retirement application will be the U.S. Office of Personnel Management (OPM).  If your “OPM” Disability Retirement claim is denied twice by OPM (First at the Initial Stage, then at the 2nd, or Reconsideration Stage), you will then need to file an appeal to the U.S. Merit Systems Protection Board (MSPB).   In this Third Stage (the MSPB), OPM will cease to be the reviewer and will instead become the prosecutor.  They will try very hard to stand by their decision.  At this stage, it is strongly recommended that you hire an experienced Federal Disability Retirement lawyer.

MSPB and the Disability Process
MSPB and the Federal Disability Retirement Process

There are many general practice attorneys and Federal employee “advocates” who will be willing to take your case up to the Third Stage of the Federal Disability Retirement process, also known as the MSPB stage, but in our opinion, it is better to hire an attorney experienced with this type of administrative laws right from the beginning.  Unless you have an alternative future source of income (e.g., a golden parachute from a previous executive career in the private sector), you should spend time to prepare your disability retirement application well from Day One.  If your application has already been denied twice, winning a disability claim with the MSPB will be a tougher call for several reasons.

At the Third Stage, your opponents will not just be Federal Disability Retirement “clerks” from OPM, but instead, you will be dealing with experienced OPM attorneys.  Even if you decide to hire an experienced OPM Disability Retirement attorney to help you with your case at this late stage, he or she will still have a hard time refuting absurd arguments made by OPM’s legal representative, such as:  “Oh, but your own medical documentation shows that you told your primary doctor you were feeling just fine on such and such dates”.

Can I get OPM Disability Retirement even if my Federal agency or the Postal Service has accommodated me?

Light duty is not “legal” accommodation
Light duty is not “legal” accommodation

In theory, Yes.  This is because, technically, a “legal” accommodation is not the same as a light/limited duty accommodation.  In practice, OPM clerks will deliberately ignore this fact; instead, they will argue that any accommodation provided by your Agency will constitute a legal accommodation.  They might even argue that by signing the acceptance of a light duty job offer you were clearly stating that you were happily accommodated by your Agency.   OPM Disability Retirement Attorneys who deal with these issues all the time should be able to prepare for you a strategy that will preempt this and other types of potential arguments OPM clerks and even lawyers will try to use to defeat your Federal or Postal Disability Retirement application.

What will happen when I turn 62 years old?

OPM Disability Retirement at age 62
OPM Disability Retirement at age 62

Your “medical” retirement will be recalculated to become a “regular” retirement, and your annuity will be adjusted.  The good news is that all of the years you were under “disability” retirement will count towards your future regular retirement (in some cases even the years you spent in the military, if it was bought back).  For instance, if you worked for 10 years in the Postal Service, and you spend 20 years in Postal Disability Retirement, you will be credited for a total of 30 years for purposes of calculating your future “regular” OPM retirement.

How long does a FERS Disability Retirement benefit last?

OPM Disability and Regular Retirement until death
OPM Disability and Regular Retirement will basically last a lifetime

Your OPM Disability Retirement annuity checks continue to show up on the 1st of each month in your bank statements until your 62nd birthday.  After that date, you will no longer be considered a Federal Disability Retirement pensioner but a regular Federal employee retiree.  So, in a way, these benefits will last forever (there are also some family survivor provisions).  However, this is assuming that OPM will continue considering you to be “disabled” under their own rules.  They will send you periodic medical questionnaires (unless you are also an SSDI recipient, in which case OPM will normally let the good folks at the SSA worry about these disability verification tasks).  This is one extra reason why you should always keep up with your doctor’s appointments.

Can I get VA Disability Retirement and OPM Disability Retirement benefits at the same time?

VA Disability Retirement
VA Disability Retirement

Yes.  There is no offset between the two.  Veterans are able to receive both VA Disability benefits and FERS Disability Retirement annuity payments without any offsets or penalties for receiving both annuities.  In this case, the Veteran can also opt to receive medical care from a VA health care center, Medicare from the SSA, and even a subsidized private FERS health insurance just like regular FERS employees do.  Of course, opting out from some of these benefits may save the Veteran from paying premiums for duplicative benefits. It is therefore important that the Veteran understands all options available for purposes of future planning.  Some mistakes can cost the retiree hundreds of dollars a month.

Can I get Federal Workers Comp and OPM Disability Retirement at the same time?

The Department of Labor, Office of Workers' Compensation Programs (DOL/OWCP)
The Department of Labor, Office of Workers’ Compensation Programs (DOL/OWCP)

No.  Keep in mind that OWCP DOL job-related disability payments are supposed to be temporary benefits only.  Thus, what we recommend doing in most cases is to apply for OPM Disability Retirement benefits until OWCP cancels your benefits for good — or until you can no longer take all the harassment from the OWCP specialists and nurses in exchange for more money (OWCP does pay more than OPM Disability Retirement).

If you don’t file for OPM Disability Retirement and your agency officially separates you from Federal Service, you only have one year from the date of separation to file for Federal Disability Retirement benefits.  If you fail to file within that timeframe, you will lose your right to file for Federal Disability Retirement benefits forever.  This is yet another reason why you should take your OPM Disability Retirement preparation seriously.  In this case, if you do qualify for OPM Disability Retirement and later OWCP decides to terminate their benefits, you can then activate your OPM Disability Retirement benefits.

Can I get a personal injury compensation claim with the Federal Government and OPM Disability Retirement at the same time?

Yes.  Personal injury compensation payments, more correctly called Scheduled Awards under OWCP, is a lump-sum payment from the Federal Government to Federal employees, and these payments are available for certain injuries or medical conditions which are job-related.  They can be “scheduled” to be paid monthly for a certain period of time (e.g., two years), or they can be paid all together in an equivalent “lump sum” (most recipients choose the latter option).  Since there is no Statute of Limitations for Scheduled Awards, we recommend focusing your initial efforts on getting OPM Disability Retirement benefits.   Once you get your OPM Disability Retirement approved — and in the process you also get back on your feet, financially speaking, it will be in your best interest to try and pursue a Scheduled Award claim.  It is better to fight one battle at a time, and where and when you fight each battle is important for the ultimate outcome of the “war”.

Can I file for OPM Disability retirement and sue a Federal Agency for disability discrimination under EEOC rules?

EEOC Disability Discrimination Complaint
EEOC Disability Discrimination Complaint

Yes.  However, in our opinion, EEOC claims are often very hard to prove.  There seems to be a perception these days that discrimination occurs with great prevalence in the Federal Workplace, but never to you.  Because an injury or illness has real, devastating financial effects on Federal employees, many Federal employees decide to use their limited economic resources on their best shot.  Sometimes, you will also be required to find a mediator before any EEOC filing.   Each case is, of course, different, but in general EEOC disability discrimination claims can be extremely stressful for Federal employees who are already suffering from one or (more often) several medical conditions.

Can I get OPM Disability Retirement and Social Security Disability Retirement at the same time.

Social Security Disability Insurance (SSDI)
Social Security Disability Insurance (SSDI)

Yes, but there will be an offset or reduction in the FERS annuity (as Social Security is primary, and the offset takes away from the FERS Disability Retirement annuity).

Besides the offset, there are several other considerations to keep in mind if you decide to file for both FERS Disability Retirement and Social Security Disability Insurance (SSDI).  Please refer to the article Some Thoughts on Social Security and FERS Disability Retirement for more information.

How is OPM Disability Retirement calculated?

Calculating your OPM Disability Retirement annuity
How much does OPM Disability Retirement pay?

In the first year, your FERS disability retirement annuity will be calculated based upon 60% of your average of your highest-3 consecutive years of service, minus any Social Security Disability Insurance (SSDI) payments you might also be entitled to.  After that, your annuity will be calculated using the 40% of your high-3 minus 60 % of your SSDI payment.  Of course, if you don’t qualify for SSDI, there will be no subtraction or “offset”.  At the age of 62, your disability retirement will become regular retirement with a new computation.

As a FERS Disability Retirement retiree, will I have to pay Federal income taxes?

Yes.  OPM Disability Retirement income is taxable in the United States and its territories.

Will I be able to keep my subsidized health and dental insurance?

Federal Employee Health Benefits (FEHB)
Federal Employee Health Benefits (FEHB)

Yes.  However, there might be some slight variations about what insurance companies are available and how much they will charge you.  An advantage of receiving a subsidized FERS health insurance is that if you move overseas, some companies like Blue Cross/Blue Shield (no promotion intended) will allow you to use your medical insurance in other countries.  This is in contrast to the benefits offered by the SSA in that if you choose to have Medicare, you won’t be able use that form of medical insurance outside the United States and its territories.

Can I work or start my own small business if I receive OPM Disability Retirement?

Yes.  This is a case in which Federal Disability Retirement benefits differs with Federal Workers Comp.  However, your new job must be outside the Federal Government sector.  Also, keep in mind that if your earned income is more than 80% of what your former Federal position currently pays, you can lose your OPM Disability Retirement benefits for the year following the year you exceeded the 80% limit.  If this happens, chances are that you will no longer qualify for regular retirement when you turn 62 years old.  Thus, be careful with your future earned income.  Most forms of “passive” income, however, do not count towards the 80% threshold.

Postal Employees with Disabilities

Dog attacking Postal employee
Dog attacks can cause permanent damage, including disfigurement, nerve and tissue damage, and psychological trauma that can last for years.

Postal employees with disabilities comprise a challenge unique to the group as a whole, precisely because of the inherent nature of the physical requirements of the work itself.  Compounding this problem is the added difficulty of restricted access to vital information concerning options and benefits accessible — such as being eligible for Federal Disability Retirement benefits.  Whether restricted access is deliberate and intentional (as one can extrapolate from the recent EEOC ruling concerning the National Reassessment Program and the systematic campaign perpetrated by the U.S. Postal Service to shed its rolls of employees who required special accommodations) or resulting from a centralized bureaucracy (where the single source of information is retained at a facility at the H.R. Shared Services in Greensboro, North Carolina), the plain fact is that many Postal employees don’t even know that they may be eligible for Federal Disability Retirement benefits under 5 U.S.C. 8451, et seq.

     Confusion abounds.  Life itself is confusing enough.  The old idiom about “the straw that broke the camel’s back” aptly describes the stresses of modernity.  We live in a stress-filled world; our daily lives are filled with so much busy-ness that we can barely attend to those things that are most important:  Our jobs; our ability to maintain our finances; our kids and meeting their needs; our relationships, and meeting our own needs.  Then, when a medical condition hits, it becomes the “last straw” that seemingly tears apart the fragile fabric that kept everything seamlessly together.  Homophones — “seems” and “seams” — applies to our daily lives.  We give the outward appearance — “seems” that we have everything put together — “seams” — when in fact what seems to be the case is a matter of seams that are stitched together in a haphazard manner.

 

We always think that it will never be “me”; that the misfortune we hear about — whether through anecdotal evidence, in the newspapers, or perhaps through word-of-mouth about a family member who has been hit with tragic circumstances — is something distant and will somehow never entangle or intrude upon our own lives.  We buy insurance policies against disasters, but never think we will ever have to activate them.  We eat meals “on the run”, knowing that we aren’t really taking good care of ourselves, but mistakenly thinking that the human body is strong enough to withstand some short-term mistreatment — until the days we do it turn into weeks; the weeks, aggregate into months; and the months become years and into decades of maltreatment.  The youthful notion of invincibility and immortality somehow betrays our own inner sense of guilt.  Then, the inevitable occurs:  a medical condition hits us unexpectedly.  But was it ever really unexpected?

 

The nature of the Postal System itself is contrary to human nature.  The repetitive tasks required of most jobs, whether in the “Clerk Craft” or the carrier craft — and whether as a Rural Carrier or a City Carrier; as a Flat Sorter Clerk, a Mail Processing Clerk, a Distribution Clerk or a Sales, Service and Distribution Clerk or any number of related clerical jobs, the plain fact is that all of the “crafts” involved go against the grain of human dynamics in repetitive usage of the human anatomy.  GM and Ford have robotic arms to open and shut the doors of a new vehicle to test the viability and longevity of manufactured parts.  If something fails, the mechanical part can be replaced.  For human beings, the “mechanical part” is a series of bones, tissues and cartilages that — while repair is possible — can never be fully replaced once damaged or injured.

 

Most Postal employees are familiar with OWCP/Department of Labor benefits.  There is a general notion that if a Postal employee is injured on the job, there is a benefit that is accessible.  The idea that there must be a causal nexus proven in order to qualify for OWCP (“Worker’s Compensation”) benefits is generally understood.  Thus, if a person becomes injured while “on the job”, being compensated both for the injury itself as well as the loss of wages is fairly routine.  But what about the door handle that snaps off of the automobile after the 10,000th pull?  What happens if the knee begins to degenerate or the shoulder becomes beset with a chronic ache, slowly turning into a sharp pain?  Can causality be so easily proven?  Can it be proven that it is an “occupational disease or injury” that is “caused” by the particular type of work that the Postal employee has engaged in for multiple years?

 

Even if can be proven, how long will OWCP continue to pay the Postal employee until the Department of Labor does one of two things:  (1) Assign a “Second Opinion” doctor (i.e., a so-called “Independent Medical Examination”) and deem that you are sufficiently recovered and ordered to return to full duty, or (2) find a job in the private sector that the (now former) Postal employee is considered “qualified” for, and deduct the anticipated yearly amount from the OWCP payments, thus ending one’s career? Is there an alternative?

 

Federal Disability Retirement is a benefit available for all Federal and Postal employees under FERS.  The medical condition or injury does NOT have to result from an “on the job” injury, nor from an occupationally-related disease or injury.  The medical condition, injury or disease can occur and be precipitated from a vacation, a skiing accident, an automobile mishap or any number of inconceivable incidents — and the mere fact that it is not “job-related” has no bearing on the eligibility criteria for a Federal Disability Retirement annuity.  In other words, “causality” is not an issue, for the most part, in becoming eligible for Federal Disability Retirement benefits under FERS.

 

Postal employees with disabilities face a unique challenge in our society, precisely because few other industries require the daily, intensive and repetitive utilization of the human anatomy in such a consistent, self-abusive manner.  What other position description requires the individual to engage in so many variables involving super-human efforts?  Of constant standing, bending, lifting, reaching, being able to lift packages and parcels weighing up to 70 pounds of asymmetrical and awkward dimensions, and to do it day in and day out in harsh weather and adverse circumstances?  It takes a healthy individual and tests the farthest limits of human durability and distance; and in the end, there comes a “breaking point” for even the strongest of the strong.  It is because of this that Federal Disability Retirement is an important benefit that remains accessible and available, and should be considered by postal employees with disabilities in this world where the robot cannot yet replace the human Postal worker in the efficient processing and delivery of our mail.

 

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 Federal Disability Retirement website.

 

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.

Sincerely,

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.