It is an accepted fact that there is a “psychological” aspect to almost everything in life, and this is no less true in the field of disability retirement law. The “psychological” aspect is the nexus, or bridge, from the Reconsideration Stage to the Merit Systems Protection Board. From OPM’s viewpoint, this is the last chance to make a decision on a case, before it is taken out of the hands — and therefore “control” — of the Office of Personnel Management. Thus, OPM wants to be able to “justify” that its decision was reasonable, and legally-based and legally sufficient to withstand the scrutiny of an Administrative Judge. From the Applicant’s viewpoint, it is a chance to show that OPM was unreasonable for not approving the case.
While it is true that all cases which come before the MSPB are heard de novo (meaning, anew, without regard to prior decisions by OPM), OPM nevertheless never wants to be viewed as ignoring the law and appearing unreasonable, and the Applicant wants OPM to appear unreasonable in the face of the medical evidence already provided. This is the psychology behind trying to convince OPM to approve a case at the Reconsideration Stage. Thus, at the Reconsideration Stage, it is important to cite applicable law to OPM, to corner them into a position of appearing unreasonable if the disability retirement application is denied. On the other hand, the reasonings and underpinning of foundational bases provided in Reconsideration Decisions are often far more superior and accurate than those handed down at the Initial Stage. In any event, always remember that there is a “psychological” aspect to everything, and it is the duty of an attorney to identify it, use it to the best advantage possible, and cite the appropriate law.
Robert R. McGill, Esquire