AT OPM, WINNING OR LOSING DISABILITY RETIREMENT HAS ALMOST NOTHING TO DO WITH THE LAW AND ALMOST EVERYTHING TO DO WITH WHICH SIDE OF THE BED THE OPM ADJUDICATOR GOT UP ON.
The law provides one single way to decide whether or not you are entitled to disability retirement. It is known as “preponderance of the evidence.” It is a special test that the United States Code, the Federal Code of Regulations and thousands of Merit Systems Protection Board cases, say is the only legal test.
In 26 years representing clients in OPM disability retirement cases, I have never seen one single OPM decision which even used the term, preponderance of the evidence or without using the term, employed the test.
Instead, every single case I have seen which was decided by OPM’s disability retirement adjudicators, were decided on the adjudicators’ own private test, the adjudicators own private whim and fancy of whether you should win or lose. In other words, your disability retirement case will be decided not on what the law requires but on what OPM personnel want to do.
Here is how they get away with this. All OPM decisions are made behind closed doors and away from public scrutiny. That is not so surprising. After all we can’t go into their offices and look over their shoulders as they decide cases.
What is so surprising is that OPM has no system by which someone else reviews the decisions. Adjudicators, assigned to your case decide it and no one checks whether they got it right.
There is a seeming exception in a few cases and that is when OPM contract physicians get to review cases. But in that instance, no one checks the contract physicians’ decisions and the OPM adjudicators simply rubber-stamp that decision.
Without a system of checking decision-making OPM adjudicators do whatever they want and what they want is not to use the preponderance of the evidence test, since in most instances they don’t have a clue as to how to use it and if they did, it might not give them the result they want.
I just made a terrible indictment based on the relatively few cases I litigate. Obviously, a lawyer sees only a small percentage of cases. My conclusion is extrapolated from that small percentage. So there may be thousands of cases in which this does not happen.
I invite OPM to let me know if I am wrong and why, by posting to this blog, so that everyone can see the folly of my ways.
We have a real problem with Physician’s Statements from doctors who are too busy to spend time writing them and unwilling to go out on a limb to say it like it really is. So you have to work around this.
When it comes to doctors, you have to…
Following up on my earlier post about getting fired for misconduct:
If you are fired for misconduct, that does not mean your agency can wash its hands of you and not cooperate with your claim for Disability Retirement. Your agency is still required…
Can my disability retirement entitle me to additional payment (for nursing services, wheelchairs, etc.)?
ANSWER: No. There are no additional payments available from disability retirement. However, disability retirement is not a bar to your pursuing any other entitlements that may be available, such as from a private insurance policy, Social Security, or the like. However, you are not permitted to collect workers' compensation (except in unusual cases).
What Are OPM's "Official" Criteria For Determining If You Have A Winning Case?
Below are OPM's stated criteria for winning FERS Disability Retirement Cases. Now, what does this gobbledygook mean? There are thousands of cases defining what these criteria mean, and new cases redefine the criteria all the time. Thus, these criteria are anything but straightforward. The ultimate point here is that you need someone with a knowledge of the case law which interprets these criteria, knowledge which you likely don't have, but a good lawyer should have.
To decide if your disability claim is allowable, OPM considers the documentary evidence you, your agency, and your physician provide. Your claim can be allowed only if the evidence establishes that you meet all of the following criteria:
A deficiency in service with respect to performance, conduct or attendance, or, in the absence of any actual service deficiency, a showing that your medical condition is incompatible with other useful service or retention in the position.
A medical condition, which is defined as a health impairment resulting from a disease or injury, including a psychiatric disease.
A relationship between the service deficiency and the medical condition such that the medical condition has caused the service deficiency.
The disability must be expected to last at least one year.
You became disabled while serving under the Federal Employees Retirement System.
The inability of your employing agency to make reasonable accommodation to your medical condition.
The absence of another available position, within the employing agency and commuting area, at the same grade or pay level and tenure, for which you are qualified for reassignment. OPM will not pay for any medical examination or procedure needed to provide the necessary documentation.
Do I need to have a job- related disease or injury in order to qualify for disability retirement?
ANSWER: No. Disability retirement compensates you regardless of either the nature or the cause of the disability. Nor does it matter where the disability was incurred, whether at the desk or on the dance floor. Workers' compensation is a different program that compensates employees for disabilities which are exclusively job-related.
How long do I have to work for the government in order to be eligible for disability retirement?
ANSWER: That depends on the retirement system to which you belong. FERS employees are required to be enrolled in their retirement system for a minimum of 18 months to be eligible for disability retirement. CSRS employees must be enrolled a minimum of five years in their retirement system to be eligible.
I have represented Federal government employees and Postal workers seeking OPM Disability Retirement for a long time. I also represent them in agency leave problems such as AWOL, FMLA, LWOP, etc. Leave problems often come along with being sick and disabled. I have stuck to this area of the law for more than 30 years of the 50 years I have been a lawyer.