Preponderance of Evidence

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.

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