| Home |
Articles | FERS & CSRS Disability Retirement: Striking the Right Balance
|
FERS & CSRS Disability Retirement:
Striking the Right Balance
Robert R. McGill
The tree had fallen many years ago, and served well to bridge the land
divided by the rushing river. Over the years, it received the compliment
of utility -- from the raccoon, the fox, the wild boar, to squirrels and
countless other animals. But, alas, as wood rots over time, the log began
to disintegrate. Who would be the last to use the path of dilapidation, of
course, was anyone's guess. Whether by precise scientific calculation, or
by instinct, the path of use disappeared -- until another tree fell in the quiet
of night, when no one but the seeing eyes of the owl witnessed the bridging of
the lands.
- From Fables Long Lost
Laws serve both as restrictive devices, as well as refining the boundaries of
acceptable argumentation. Thus, where a statute or Court opinion through a
case has "opened up" the doors for certain evidentiary admissibility where
previously such submissions were precluded, the lawyer who argued for such
greater flexibility has done his or her job well. For, ultimately, it is
the job of the attorney, through argument, logic, persuasion and interpretive
creativity, to test the boundaries of statutes, rules and regulations in
advocating the position of his or her client.
Whether the practice of law is nearer to science, or to art, is certainly a
debatable question. If to science, then flexibility and creativity are
lost; if to art, then logic and validity are compromised. Whatever the
answer, in determining the applicability of a legal opinion, the "art" side of
practicing law must come into play when deciding the type, extent, and volume of
supporting medical and other documentation which must be submitted in an
application for Federal Disability Retirement benefits.
In attempting to obtain Federal Disability Retirement benefits under FERS or
CSRS, certain discretionary decisions must be made throughout the process.
The extent of medical documentation to be submitted along with a Federal
Disability Retirement application (Standard Forms 2801, along with Schedules A,
B & C for CSRS individuals; SF 3107, along with Schedules A, B & C for
FERS individuals; and SF 3112A, Applicant's Statement of Disability for both
FERS & CSRS -- are the "minimally required" forms to be submitted) is a
matter to be decided based upon multiple factors. In the end, the guiding
legal principle to be followed is that one must prove, by a preponderance of the
evidence, that one has met the eligibility criteria for Federal Disability
Retirement benefits.
Beyond meeting the basic eligibility criteria, of course, are the "legal
tools" which should be accessed: The Bruner Presumption; arguments on
Accommodation using the Bracey standard; the Trevan rule concerning Social
Security approvals; the Vanieken-Ryals v. OPM and the false distinction
used by OPM between "objective" medical evidence versus "subjective" medical
evidence -- and many others, the significance and utility of which have been
previously discussed in other articles. The point here is that, with the
plethora, complexity and almost infinite volume of legal, medical, and factual
documentation which can be gathered as supporting attachments to a Federal
Disability Retirement application, how does one strike the "right balance"
between underproving, proving, and overproving one's case?
In the modern age, of course, the parallelism is with the information found
on the Internet. One needs only to begin with a basic Google search on any
subject, to come to the conclusion that finding information about a certain
subject is never the problem; rather, the problem is, once the information is
tapped into, which information can and should be used? Thus, in a Federal
Disability Retirement application, on the one extreme would be to attach any and
all medical records (no matter if it comprises 10,000+ pages) to the
application; and on the other extreme, to attach a prescription note from the
doctor stating, "X is hereby disabled". Somewhere in between comprises the
"right balance".
The "world of law" is an ever-expanding universe of legal precedents creating
greater flexibility and boundaries determined by more recent interpretations and
legal holdings which both clarify and reset the formal buttons of law.
This was certainly the case in the recent holding set forth by the Merit Systems
Protection Board in the case of Simpkins v. Office of Personnel Management, 2010
MSPB 52, DC-844E-09-0623-I-1, decided on March 18, 2010. There, the
three Judge Administrative Board held that the Merit Systems Protection Board
and the Office of Personnel Management "must consider an award of benefits by
the DVA (Department of Veterans Affairs) based on the same medical conditions as
the appellant's disability retirement application, although this evidence may be
outweighed by other evidence." This is both an interesting case, and
impactful upon Federal and Postal employees who have filed for Federal
Disability Retirement benefits under FERS or CSRS, and who are, coincidentally,
veterans.
For, the case of Simpkins tends to "coordinate" the findings of various
Federal Agencies. Thus, for example, Trevans v. OPM, 69 F.3d 520
(Fed. Cir. 1995) mandated that OPM and the Board must review, along with
other medical evidence, a Social Security Disability approval -- and this makes
sense. Ultimately, where one Federal Agency determines that a Federal or
Postal worker is deemed as "disabled", some sort of reciprocity of
acknowledgement between agencies should occur. Trevans thus stands for the
proposition that, because eligibility for Social Security Disability benefits
requires a higher standard of "total disability", such considerations should at
a minimum be acknowledged as persuasive evidence in a FERS Federal Disability
Retirement case (I exclude CSRS only because, in most such cases, CSRS
individuals would not be eligible, and are not required to file for, SSDI
benefits). Simpkins takes the step taken in Trevans one step further
-- by acknowledging that disability determinations by other Federal Agencies (in
this case, the Department of Veterans Affairs) should also have a persuasive
impact upon Federal Disability Retirement determinations. In this manner,
the "world of law" has been expanded, and the applicant who files for Federal
Disability Retirement benefits under FERS or CSRS is certainly the beneficiary
of such expansion.
The question remains, however, as to whether to use the determination of the
SSA or DVA, and that is a discretionary judgment by an applicant or the attorney
representing the applicant in a Federal Disability Retirement case. This
is where a careful reading of the opinion in Simpkins must be engaged; for the
three Judge Administrative Board did not simply state that a DVA rating must be
"considered" -- they further stated that (A) consideration should occur if the
award of benefits was "based on the same medical conditions as the appellant's
disability retirement application" and (B) such evidence "may be outweighed by
other evidence." What does "same" mean? Does it require strict
identity? Or, can there be sufficient similarity of the underlying medical
evidence? Further, what kind of "other evidence" can outweigh the rating
ascribed by the Department of Veteran's Affairs? These are all questions
which must be answered within the context of attempting to strike the "right
balance" in submitting the proper evidence in winning a Federal Disability
Retirement annuity, both in qualitative and quantitative means.
Ultimately, the question of striking the right evidentiary balance in
proving, by a preponderance of the evidence, that one is entitled to Federal
Disability Retirement benefits should be based upon a full review of the
factual, medical, and legal arsenal of information gathered. There has to
be a careful scrutiny, however, in determining the extent, volume and quality of
the evidence to be submitted. The "bridging" between the land of medical
documentation, and the land of sufficient legal proof, should be left to the
discretion of an attorney; for, in the end, eligibility for Federal Disability
Retirement benefits under FERS or CSRS is a legal issue. Ask any Federal
or Postal worker who thought that it was merely an administrative issue of
filing for a benefit, and got denied at the Initial Application Stage of the
process.
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 CSRS
and FERS Disability Retirement Website.
|
Overview - CSRS
