The Law Requires That In Deciding Whether Or Not You Are Entitled To Disability Retirement, OPM Must "Weigh" The Evidence, As It Would On A Scale. If The Evidence In Your Favor Weighs More Than The Evidence Not In Your Favor, You Win And Visa Versa.
While the “scale of justice” analogy is the only legal way to decide a disability retirement case, OPM never uses that legal way.
Instead, OPM hunts and pecks through evidence, seeking out anything which appears to discredit the applicant. No matter how much documentation is in the applicants’ favor, the discrediting evidence is then used to deny disability retirement.
Thus, winning cases end up as losing cases.
For anyone interested in whether their case has been decided legally, it is critical that they understand the correct legal standard, known as “preponderance of the evidence.”
You need a "preponderance of the evidence" in your favor to win. Otherwise, you lose. The regulatory or legal definition for "preponderance of the evidence," is this:
"The degree of relevant evidence that a reasonable person, considering the record as a whole, would accept as sufficient to find that a contested fact is more likely to be true than untrue. 5 C. F.R. 1201.56 (b)
Perhaps, thousands of cases deal with this and it can be explained in numerous ways.
As a law professor, I taught it to my students somewhat like this:
Forget the modern scale on which you weigh yourself. Instead, picture the old fashioned "scale of justice," emblazoned on many courtroom walls. The scale has two trays hanging at equal heights from a horizontal arm. Put a weight on one tray and it moves down while the other moves up.
In deciding a disability retirement case, evidence for the applicant should be put on one tray. Evidence against the applicant should put on the other tray. Whichever side of the scale hangs lower has the weightier evidence and wins. The other side loses.
There is another critical factor in weighing the evidence. The regulation above allows only relevant evidence to be weighed on that scale.
Relevant evidence is evidence, which could reasonably affect the outcome. If you have a "service deficiency," as required by law, that is, a deficiency in attendance, performance, or conduct, that service deficiency is relevant evidence and should weigh in your favor (although the law sometimes makes mince meat in defining service deficiencies). If you have red hair, that is irrelevant evidence, and cannot be put on the scale at all. It simply has no weight whatsoever.
Unfortunately, my analogy of the scale of justice falls apart if you get cheated, as when some OPM bureaucrat tampers with the evidence and leaves some off one side of the scale or purposeful puts a tad more on the other side of the scale.
When OPM keeps relevant evidence off of the scale or weighs irrelevant evidence, or does both, it violates the law. This is not some theoretical violation. This violation translates into one, which strips applicants of future income, health benefits, and the like.
Rules Of The Game
- All relevant evidence must be weighed.
- Irrelevant evidence cannot be weighed--because it has no weight.
Tampering With The Scale
In many cases, OPM simply ignores relevant evidence favorable to the applicant and dredges up tidbits of irrelevant information (that you have red hair), to justify its denial. Thus, favorable relevant evidence is wiped out by being kept off of the scale.
Sometimes the evidence provided by applicants, their physicians and supervisors is wrongfully discredited. Sometimes the applicants, their physicians or supervisor's are discredited. Sometimes eyes are closed to the existence of favorable relevant evidence.
However it is accomplished, favorable relevant evidence is not considered in arriving at the decision. Without favorable relevant evidence, an applicant cannot win disability retirement. That is because an applicant has the legal burden to provide relevant evidence in his or her favor.
Sometimes, OPM searches though an applicants' file for irrelevant information, which appears to discredit the applicant or the case. Here the search is for an excuse, that OPM can hang its hat on, to deny disability retirement, but in fact, since it is irrelevant, it is no excuse at all.
However they do it, they always fail to use the legal test of “preponderance of the evidence.”
No matter the technique, the goal is always the same; to make sure that the applicant doesn't win disability retirement.
I don't know the reasons for OPM's illegal behavior. I do know, from a multitude of cases over many years of law practice, that it occurs time and time again.
The preponderance of the evidence test is both a standard by which disability retirement cases are to be decided and a safeguard that they will not be decided by the whim and fancy of some OPM bureaucrat, operating out of a back room. OPM bureaucrats who violate the law in case after case turn this standard and safeguard topsy-turvy.
In My Opinion
Sanctions must be levied against OPM supervisors and subordinates who violate this law and wrongfully strip disability retirement applicants of this right.
Such misbehavior should result in reassignment, suspension and firing of OPM adjudicators, just as would similar misbehavior by other government employees.
If OPM personnel aren't conversant with the law, teach it to them. If they can't or won't learn it, get rid of them.
While it is up to OPM how this is accomplished, it is up to us to make sure that it is.
