Last Updated on July 9, 2011 by FERS Disability Attorney
In preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS, one is required to meet the legal sufficiency of the eligibility criteria as set forth by statute, expanded by regulations and clarified by cases which have come before Administrative Judges at the Merit Systems Protection Board.
Whether one meets the legal sufficiency test in the presentation of medical and other supporting evidence, is the area of disputable territory, which is why the entirety of the administrative process has been put in place. From the perspective of the Office of Personnel Management, they are mandated to review each case and make a determination as to legal sufficiency. Often, however, they are not concerned with, ignore, or otherwise remain oblivious to, the legal standard of proof, of whether the applicable criteria has been met by a standard of “preponderance of the evidence”. Indeed, in many denial letters, they have instead indicated a much high standard of review, including whether the evidence is “compelling”, or whether the medical condition “prevents the Federal or Postal employee from coming to work altogether”.
Unfortunately, the first two (2) stages of the process — the initial application stage, then the Reconsideration Stage — is reviewed by the Office of Personnel Management, with the potential for mis-application of the proper burden of proof.
Legal sufficiency is not a standard which is applied until it enters into the “legal arena” — that of the Merit Systems Protection Board before an Administrative Judge. Because of this, it is often a good idea to cite legal opinions in order to “apprise” the Office of Personnel Management of the applicable legal criteria, and to remind them of what extent of evidence meets the legal sufficiency test.
Sincerely,
Robert R. McGill, Esquire