Federal Disability Lawyer & Attorney : Jeffery P. McLane Law Firm : Philadelphia, Pennsylvania PA

     Most potential clients ask me whether one should try to file for an OPM disability retirement without an attorney first, and then get a lawyer involved at either the reconsideration stage or for the MSPB appeal. I do not know a one-size-fits-all answer to that question but I believe I have found a fact pattern from a fairly recent case that illustrates the potential hazards of self-representation. Please read the following paragraph with the assumption that the only legal issue in play regarding the disability retirement is our old friend – the worker’s inability to perform the duties of his position.

·         A carrier for the U.S. Postal Service filed for disability benefits prior to his last day in pay status based on heart problems, bleeding ulcers, emphysema, Reiter’s Syndrome, migraines, colon problems, depression, bipolar disorder and panic attacks. The worker submitted documentation from his physician indicating that his eventual return to any work because of multiple problems was “doubtful.” The appellant record also includes evidence showing that the SSA found he met the medical requirements for Social Security benefits

     One additional factor should be considered before drawing a conclusion concerning this employee’s entitlement. The worker expressed concern that he might harm himself or others if he were to continue in his position. In Widmer v. OPM, 103 MSPR 363 (2006), the Board found in favor of disability benefits in a case involving fear expressed by co-workers. (Not an exact match with the facts in this case, but Widmer did spark debate in this matter.)

     So, did the carrier win his appeal for disability retirement benefits before the full Board? No. In a 2-1 decision, the Board found no reversible error on the part of the administrative judge (AJ) despite the SSA disability benefit award and the compelling argument in Member Sapin’s dissent that all prerequisites to a Federal disability retirement case had been satisfied. The Board denied the appellant’s application on the grounds that he did not show an inability to perform the duties of his position. 

     Here is what a Federal disability lawyer would have done differently at each stage of this process to avoid these denials:

1.      Initial OPM Application - Establish a relationship with the treating physician(s) from the outset. Explain the differences between OPM disability retirement procedures and SSA, OWCP and other types of applications the doctor(s) has prepared in the past. Assist the doctor(s) in preparation and editing of narrative so that a nexus between the medical conditions and the inability to perform essential job functions would be apparent to the OPM benefits specialist. This process can sometimes take 60 days

2.      OPM Reconsideration Stage – Request extension. Immediately review OPM decision for details of underlying reasons for denial. Focus reconsideration reply on those issues (test results, side effects of medications, additional narratives from specialists, etc.)

3.      MSPB Appeal – This should be treated just as any other MSPB appeal, that is, full-scale litigation. Create clear record with all evidence preserved for appeal. In above case, settlement would have been discussed with agency lawyer in light of strength of case

4.      Full Board Appeal – Highlight legal error such as failure to weigh subjective medical evidence, award of SSA benefits in appeal to the Board

5.      U.S. Court of Appeals for the Federal Circuit – last and final hope for reversing legal error. Focus on precedent cited in dissenting opinion in hopes of winning appeal

     The question of whether to hire a professional or to do it oneself is no different in OPM disability law than in home improvement. The complexity of the project could lead to catastrophe, however. 

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     The general eligibility provisions for disability retirement under the Civil Service Retirement System (CSRS) and the Federal Employees Retirement System (FERS) are outlined at Title 5 of the United States Code. To qualify for a disability retirement, Federal employees must have served for a minimum amount of time (different minimum time periods, depending on the retirement system) and no longer be able to effectively perform his or her duties at the current grade or pay level without accommodation due to a medical condition that will continue for more than one year.

     Disability retirement applications are processed and adjudicated by the Office of Personnel Management (OPM); the applicant may request a reconsideration of a negative first level decision by OPM as well. The Merit Systems Protection Board (MSPB, or the Board) has jurisdiction over appeals of OPM decisions. The Board set down the basics for appeals to its body in Chavez v. OPM, 6 MSPB 343 (1981). The Board is not limited to a review of the record before OPM so the proper scope of review at the MSPB is de novo. This decision also established that it is the employee who bears the burden of persuasion by a preponderance of the evidence from an adverse OPM decision.

     The Court of Appeals for the Federal Circuit shifted the burden of production to the government in cases where the employee has been separated for physical inability to perform his duties and no accommodation could be made. In Bruner v. OPM, 996 F.2d 290 (Fed. Cir. 1993), the court held that the employee has met his prima facie burden of proof through separation by disability (note that the employee still must establish entitlement by a preponderance of the evidence).

     In the absence of the so-called “Bruner Presumption,” otherwise sick or injured workers who are on staff and perform at satisfactory levels present difficult issues for disability attorneys, or those proceeding pro se, if these injuries or diseases prevent the workers from performing one or more of the essential elements of the job descriptions and other disability criteria are met. I have been involved in cases in which late career top performers filed for disability benefits as a result of conditions that precluded them from performing certain essential elements of job descriptions but did not affect performance, conduct or attendance.  The agencies did not initiate separation but could not accommodate in the positions.  OPM is not accustomed to this type of application but ultimately each applicant was successful.

     OPM disability applications are pursued by a full spectrum of employees - from those removed because of a condition to those continuing to perform in spite of it. 

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