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FERS & CSRS Federal Disability Retirement: Credible Testimony
Robert R. McGill
How does one attain truth? Can truth be defined? When Pilate
asked the question, "What is Truth?" did he hesitate to hear the answer?
While his body turned away, did he in that momentary lapse of making his fateful
decision, pause and hope for an answer? Is there a cohesiveness and
correspondence between the subjective world and the objective, noumenal
world? Is Truth there to be discovered, or to be created? Why is a
man who is truthful a few times considered credible, while the one who lies once
is doubted?
-- from Questions on Truth and Being
Credibility, while often a correlative component, is a concept distinct from
Truth. Witnesses often fail to recognize this distinction, and get
themselves into trouble in court, or in legal submissions -- or in filing an
application for Federal Disability Retirement benefits under FERS or
CSRS. The problem with honest people is that they believe that, by
stating something honestly, they will also appear credible, and as such, the
Office of Personnel Management will automatically approve an application for
Federal Disability Retirement benefits.
But it is the job of the Office of Personnel Management to scrutinize each
application for Federal Disability Retirement benefits, and to approve such
applications which prove, by a preponderance of the evidence, three basic
components: (A) a Federal or Postal employee under FERS or CSRS has a
medical condition; (B) the medical condition prevents him or her from performing
one or more of the essential elements of one's job; and (C) that the
Agency is unable to accommodate the individual or, alternatively, to reassign
the individual to a position in the same pay or grade. Overriding the
application of the legal criteria, however, is the job of ascertaining the
credibility and integrity of the application itself.
How is credibility ascertained? At the most basic level, prima facie
exaggeration of a claim is often the foundational "red flag" which can bring
into question the integrity of a Federal Disability Retirement
application. Where there is a dissonance between the medical documentation
describing the clinical basis of one's medical condition, and the description by
the applicant as to the nature, extent and severity of the medical condition, a
question of credibility may arise. Yes, the former is based upon a
clinical examination by a Third Party, while the latter is based upon the
subjective, personal experiences of the Applicant. Therefore, the latter
may often include colorful and expansive adjectives describing the experiential
universe of pain and discomfort. However, where the dissonance between the
former and latter results in a spectrum of incredulity, a question of
credibility arises.
This is precisely why the Office of Personnel Management attempts to
bifurcate between "objective" medical evidence as opposed to "subjective"
medical evidence. The Federal Circuit Court case of Vanieken-Ryals v. OPM,
508 F.3d 1034 (Fed. Cir. 2007) effectively quashed OPM's adherence to the
subjective/objective medical evidence distinction, by pointing out that there
exists no "statute or applicable regulation of which we are aware [which]
imposes such a requirement [that "objective" evidence is "required to prove
disability"]". The Court in Vanieken-Ryals went on to state
unequivocally: "In fact, applicable law suggests the opposite rule.
OPM's regulations define the type of 'medical documentation' required to
establish disability…There is no hint of any objective/subjective distinction,
and the regulation clearly indicates that any evidence -- 'subjective' or
otherwise -- utilizing 'established diagnostic criteria' and consistent with
'generally accepted professional standards' is eligible for
consideration." Thus, "subjective evidence" -- evidence such as the
Applicant's own statement of disability -- is certainly eligible for
consideration in a Federal Disability Retirement application. However, the
problem occurs when there arises self-contradictory evidence between different
aspects of a submission -- such as disagreement between a medical report and the
claim of the applicant; countervailing statements by the Agency or Supervisor;
and other potential areas of conflicts.
Despite the clear refutation and attempted boundaries imposed by the United
States Court of Appeals for the Federal Circuit in delimiting the conceptual
distinction between "objective" evidence and "subjective" evidence, the Office
of Personnel Management still continues to favor what they deem to be
"objective" medical evidence. Their argument is one based upon the need to
ascertain the credibility of the "subjective" evidence, by contrasting and
comparing it to the "objective" medical evidence. That is why, in
reviewing a Federal Disability Retirement application under FERS or CSRS, the
Office of Personnel Management will often inquire as to whether a "Functional
Capacity Evaluation" was administered (as if the dozens of clinical examinations
by the treating doctor somehow doesn't measure up to a single 45-minute FCE), or
whether "psychological tests" were done (again, as if the psychiatrist or the
psychologist who had multiple encounters with the patient are not trained to
sufficiently perform clinical evaluations).
Ultimately, credibility is a matter of combining compelling evidence with
content and context which are believable and carefully circumscribed with the
foundational direction of Truth. Questions of credibility can arise from
multiple sources of dissonance or with the uncontrolled, excessive use of
multiple adjectives. Further, another source of "red flags" can originate
from the principle as stated by Gertrude, Queen of Denmark and mother of Hamlet,
who said, "The lady doth protest too much, methinks." In other words,
don't become defensive too quickly even if you believe that there are weak
points in your Federal Disability Retirement application. Let the medical
evidence speak for itself. Let your Applicant's Statement of Disability
provide the explanatory context to the medical evidence which is being
attached.
As a final note on credibility, it is
instructive to review what the Merit Systems Protection Board outlined in Rapp
v. OPM, Docket No. AT-844E-05-0056-M-1, decided on May 19, 2008. There,
the Board stated that, "To resolve credibility issues, the trier of fact must
identify the factual questions in dispute, summarize the evidence on each
disputed question, state which version he believes, and explain in detail why he
found the chosen version more credible, considering such factors as: (1)
The witness's opportunity and capacity to observe the event or act in question;
(2) the witness's character; (3) any prior inconsistent statement by the
witness; (4) a witness's bias, or lack of bias; (5) the contradiction of the
witness's version of events by other evidence or its consistency with other
evidence; (6) the inherent improbability of the witness's version of events; and
(7) the witness's demeanor." [Citations omitted] Note that numbers
3, 5 and 6 of the factors have to do with coherence and consistency -- meaning,
essentially, that the narrative must lack self-contradiction or dissonance with
other evidence.
One must remember that when a Federal or Postal employee files a Federal
Disability Retirement application under FERS or CSRS, that the applicant is
introducing him or herself for the first time to a stranger, based upon a "paper
submission". The people who evaluate and review each Federal Disability
Retirement packet do not "know" the individual, and no reputation precedes the
evaluation process. The burden of proof is always upon the individual
applicant. It is difficult enough for a person who is suffering from one,
or multiple, medical conditions, to describe in detail, in the form of the
personal "I" pronoun, the nature, extent, and severity of the medical condition,
and how that condition impacts one's inability to perform one or more of the
essential elements of one's job. In preparing such an application, it is
always important to have a perspective of objectivity -- of being able to review
all of the different and multitudinous elements which comprise a Federal
Disability Retirement submission -- and determine its coherence and
consistency. This is often difficult to do without the assistance of an
attorney.
Credibility of a Federal Disability Retirement application is always an
overarching element. While Truth must always be the guiding compass in any
administrative or legal submission, coherence and consistency, resulting in
credibility, must always be evaluated and safeguarded. For, it is
credibility which determines the character of a person, and the reputation of an
individual is always important to maintain in any endeavor. All of the
elements which comprise a complete, coherent, and compelling story of a Federal
or Postal employee who dedicated his or her life to working in the Federal
Sector, who became unable, because of a medical condition, to continue in his or
her career, should result in the retention of a semblance of economic security
by obtaining the benefit of a Federal Disability Retirement annuity -- along
with one's credibility.
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
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