FERS Disability

Last Updated on November 1, 2022 by FERS Disability Attorney

There are various stages of the administrative process designated and defined as “Federal Disability Retirement” — the initial application stage of the process, where one must attempt to prove by a preponderance of the evidence that one is eligible for FERS Disability Retirement benefits.

If disapproved and denied, then the Reconsideration Stage of the process (where one may submit additional medical and other documentary evidence to persuade the Office of Personnel Management to reverse themselves).  Then, an appeal to the U.S. Merit Systems Protection Board, where the Federal or Postal applicant’s Disability Retirement application is taken out of the hands of OPM and transferred to an Administrative Judge, who will hear the case anew, without regard to what OPM has decided in the past.  Then a further appeal to the Full Board of the MSPB in the event that the Administrative Judge issues an Initial Decision which affirms and upholds OPM’s denial of the case; and a further appeal to the Federal Court of Appeals for the Federal Circuit.

Throughout this process, and especially in the administrative stages before the Office of Personnel Management, one should make a distinction between “sounding good” and “being right”.  Hopefully, the Federal or Postal employee who has filed for Federal Disability Retirement benefits from the U.S. Office of Personnel Management is both right and sounding good. But there is a distinction to be made.

For example, OPM will often — in their denial letter — “sound good” but be completely wrong on the law.  They will cite medical textbooks which skew the legal standard of review; creep into the discussion of a denial letter such terms as “no significant disability rating to speak of,” or that you don’t suffer from a disability which “incapacitates” you.  It all “sounds good”, but it is not true precisely because it is not the applicable standard of law to be applied.

At the initial stages of the process, OPM can get away with such nonsense, because most people don’t recognize the untrue and inapplicable standard of law being applied.  In the later stages of the process, however, when an Administrative Judge hears a case, it becomes important not only to “sound good”, but to also apply the right legal criteria.

Appearance versus reality — it is the argument of Western Civilization from the pre-Socratics onward.  As Alfred North Whitehead once observed, all of philosophy was already written by Plato and footnoted by Aristotle.  That statement both sounds good, and is indeed right on point.

Sincerely,

Robert R. McGill, Esquire