Federal and Postal Disability Retirement: Periodic Clarifications

Periodically, despite multiple prior blogs addressing certain issues, it becomes clear that confusions continue to abound, and a clarification is in order.

In many ways, such necessity for periodic clarifications only emphasizes the inherent complexities in Federal Disability Retirement law, despite the foundational simplicity of what needs to be proven.

Indeed, while the substantive law requires the primary basis of proving, by a preponderance of the evidence, the nexus between one’s official positional duties, and the medical conditions which prevent one from performing one or more of the essential elements of one’s job; nevertheless, there are numerous procedural issues and hurdles which must concurrently be met in order to qualify for Federal Disability Retirement benefits.

Thus, for instance:  the Federal or Postal employee must file an application for Federal Disability Retirement benefits within one (1) year of being separated from Federal Service — not 1 year from the date of being placed on LWOP, or from the “date of injury”, etc.

Further, SSDI must be filed by FERS employees, but of course Social Security will not even consider a filing for purposes of evaluating eligibility until a person has stopped working — nevertheless, for FERS Disability Retirement purposes, all that is necessary is a receipt showing that one has filed for Social Security Disability benefits.

And one more: never wait for one’s agency to act in a Disability Retirement case; such waiting merely constitutes an act of futility, and one which almost always results with an adverse effect upon the Federal or Postal employee.

Sincerely,

Robert R. McGill, Esquire

 

FERS & CSRS Disability Retirement for Federal and USPS Workers: Standards

The existence of a standard constitutes an irrelevancy if the application of it is based upon an unknowable, incalculable methodology.  Standards represent a paradigm which, if implemented, provide for stability and consistency, precisely because one can rely upon the same application in all instances, and indeed, that is what is often defined as “fairness”.

Thus, in sports — if the referee makes all calls based upon a known standard, there is very little to argue with respect to the “rules”; one may, of course, challenge the interpretation of the “facts” and charge that the referee is blind and did not see the play as reality reflected; but no one can argue the minutiae of the standard itself.  In society, and in a civilization governed by rules and accepted procedures of administration, if a standard is disagreed upon, then a democratic method of change is normally considered an appropriate methodology of redefining the lines previously demarcated by the “old” standard.

In preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, it is assumed that the standard which would constitute “fair play” will be one of “preponderance of the evidence”, but the actual implementation of such a legal standard will necessarily depend upon whether the Case Worker at OPM actually understands what that standard means.

It is, ultimately, a low civil “bar” to meet; and when a denial is rendered, the language contained within the denial will often reveal the extent of comprehension on the part of the OPM Case Worker.  Pointing a misapplication of the standard is sometimes a useful tool in taking the Federal Disability Retirement case to the next level — the Reconsideration Stage of the process — but unduly focusing upon the mistakes of the previous Case Worker is often a waste of time.

Balance is the key; application of the correct standard is vital to the working efficiency of a bureaucracy; pointing out a misapplication is why attorneys exist.  They are, ultimately, technicians of written standards.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement for Federal and USPS Workers: Proof, Assertion, and the Conceptual Distinction

In preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, it is necessary — first and foremost — to understand that the benefit of Federal Disability Retirement is not an “entitlement” under any definition of the word; there is no automatic triggering mechanism by which a Federal or Postal employee becomes a Federal Disability Annuitant, unless one proves, by a preponderance of the evidence, that one has met all of the eligibility requirements necessary to obtain the benefit. 

Further, while the standard of proof established by statute is a relatively low one in comparison to others (i.e., “preponderance of the evidence” merely requires that the truth of X is more likely than not, as opposed to other, more onerous standard of proof, such as “beyond a reasonable doubt” or “clear and convincing”, etc.), nevertheless, the mere assertion of a statement of facts will not qualify the Federal or Postal employee for Federal Disability Retirement benefits.

A standard — or “burden of proof” — means exactly that:   One must prove it, and proof requires more than the mere assertion that X is so.  Specifically, in an OPM Disability Retirement application, one must prove that one is medically unable to perform one or more of the essential elements of one’s Federal or Postal position, and in order to meet that burden, medical documentation of a sufficient and persuasive nature must be submitted along with a Federal Disability Retirement application, which includes many Standard governmental forms.

Knowing and recognizing the conceptual distinction between asserting X and proving X is an important first step in preparing, formulating, and successfully filing for OPM Disability Retirement benefits.

Sincerely,

Robert R. McGill, Esquire

Federal Disability Retirement: The Viability of the Case

In preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, the initial question for the Federal or Postal employee who is contemplating such an endeavor — i.e., he or she is in the “preparation” state of the administrative process — is whether or not one has a “viable” case.

Viability of a Federal Disability Retirement case is based upon the supportive input of a treating doctor — whether it is one’s Primary Care Physician, Orthopaedic Specialist, Neurologist, Psychiatrist, etc. Because Federal Disability Retirement is not an entitlement, but rather a benefit which must be proven by a preponderance of the evidence, as such, one must approach the preparation and formulation of the case based upon factors pointing towards the viability of “winning”. There is never a guarantee that a Federal or Postal employee will be approved for a Federal Disability Retirement application.  Each case must be evaluated in light of the uniqueness of the facts, circumstances, and relevant positional requirements involved.

As part of any such review and analysis of a case, one must look at the extent of support one can expect from the treating doctor.  As such, a case will often require some further development; of persuasion on the part of the doctor that all reasonable modalities of treatment have been engaged in; that the condition will reasonably last for a minimum of 12 months (which can be part of the prognosis of the patient); and that it meets the legal standard in accordance with OPM, the MSPB and the statutory authorities which govern such standards — that, essentially, the medical conditions are inconsistent with the particular type of job which the Federal or Postal employee must perform.

Viability is determined by multiple factors — medical, legal, and the rational nexus between one’s medical condition and the particular kind of job one is required to perform.  It must be evaluated with a knowledge of all three — the law, the medical condition, and the unique, intimate connection to the Federal or Postal position.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Medical Disability Retirement: Obtaining, Maintaining and Preserving

Just as preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management is an administrative process — as opposed to an “entitlement” where a simple act of filing or meeting an automatic requirement makes one eligible and entitled — where one must prove by a preponderance of the evidence that the Federal or Postal employee meets all of the legal criteria for eligibility; similarly, once the Federal or Postal employee obtains the Federal Disability Retirement benefits, it is a “process” which one must be prepared to embrace, in order to maintain the continuing viability of one’s Federal Disability Retirement benefits, and further, in order to preserve the right to retain and continue to receive the Federal Disability Retirement benefits.

That is why it is important to understand the entirety of the administrative process — not only in obtaining the benefit itself, but to ensure future compliance with the statutes, regulations and case-law.  While legal and on-line resources are certainly available and abound with information, ultimately those very resources must be applied; and in order to apply them, they must be interpreted by someone who understands the entirety of the administrative process.  “Trial and error” is often not the best approach in preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, if only because the “error” may outweigh the benefit of the trial itself.

As such, it is advisable to consult with an OPM Disability Retirement attorney  who can guide one through the administrative process — not only at its inception, but in its continuing maintenance and retention of this benefit called, Federal Disability Retirement.

Sincerely,

Robert R. McGill, Esquire
OPM Medical Disability Retirement Attorney

 

Federal and Postal Disability Retirement: The Importance of Knowing “the Law”

The old dictum that “ignorance of the law is not an excuse” for violating the law, applies just as well in a Federal Disability Retirement application — unless, of course, the entity which fails to recognize the substance of the law, its applicability, and its extended content and consequences happens to be the U.S. Office of Personnel Management.  

Let me expand somewhat.  

In order to qualify for Federal Disability Retirement benefits under either FERS or CSRS, one must prove by a preponderance of the evidence that one is entitled to the benefits.  Such proof of “preponderance of the evidence” must be in compliance with the applicable statutes, regulations, legal criteria, case-law (as handed down by the Merit Systems Protection Board decisions, as well as by the Federal Circuit Court of Appeals).  However, when the entity which constitutes itself as the intermediate arbiter of all Federal Disability Retirement applications (it is merely “intermediate”, as opposed to “final”, because there is the review process by the Merit Systems Protection Board and the Federal Circuit Court of Appeals) itself fails to apply the applicable law, there exists an inherent problem.  

OPM is designated to decide cases based upon the applicable law.  Yet, in its denials, it will often apply criteria which has absolutely no basis in “the law”.  

All the more reason why, in preparing, formulating and filing for Federal Disability Retirement benefits, it is important for the Federal or Postal worker seeking to obtain Federal Disability Retirement benefits, whether under FERS or CSRS, to know and understand the law — its substance, applicability, and consequential reverberations upon the multiple aspects of issues involved in a Federal Disability Retirement application.

Sincerely,

Robert R. McGill, Esquire

Federal Disability Retirement: The Necessity of Recognition

For all of the Federal and Postal employees who are contemplating preparing, formulating or filing for Federal Disability Retirement benefits either under FERS or CSRS, it is important to recognize first, the complexity of the administrative process; second, that Federal Disability Retirement benefits are not a guaranteed outcome — it is not an “entitlement” in the sense that a Federal or Postal employee can automatically qualify for the benefit — but is part of the Federal compensation package for being a Federal or Postal employee, but one which must be proven by a preponderance of the evidence in order to qualify; and third, that the challenge of proving one’s eligibility must be met in a sequential, logical, and methodological manner such that the presentation made to the Office of Personnel Management is coherent, concise and comprehensible.  

Preparation for the long administrative process  is a prerequisite; proper formulation of one’s packet must be carefully attended to; and timely filing in order to meet the statutory guidelines is a necessity.  All in all, meeting the entirety of the administrative process is a complex legal maneuver which should be considered with care, foresight, and deliberation.  Do not take anything for granted.  Seek proper and useful information; then be “effective” as opposed to “efficient” — although, obviously encapsulating both qualities concurrently would be the best of all worlds.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Government Employees: A Bridge Too Far

The step-by-step process which the Federal or Postal employee must engage in for purposes of formulating an effective Federal Disability Retirement application under FERS or CSRS, is defined by the bridge, or “nexus”, which one must formulate, connecting the two separate entities:  on the one side are the medical issues; on the other, one’s positional duties which one has been engaging in and successfully performing all these many years for one’s agency or the U.S. Postal Service.  

The job of the potential Federal Disability Retirement applicant is to bring the two separate and distinct entities together, by preparing and formulating a connecting “bridge” or “nexus” between the two.  This is because one of the most important evidentiary showings that one must prove, by meeting the legal standard of “preponderance of the evidence“, is that the Federal or Postal employee is no longer able to perform one or more of the essential elements of one’s official positional duties.  

The problem with any such bridge which must be constructed and carefully formulated, however, is that many Federal Disability Retirement applicants put forth too much information, to the extent that some information may in fact defeat or otherwise damage the connection, by providing information which may be irrelevant (less damaging, but creates peripheral problems and confusion), of ancillary legal issues (may be more damaging, depending upon whether the Federal Disability Retirement applicant has brought in work-related issues which may point to a description of “situational disability”); or, provide information on certain medical conditions which contradict other information provided (again, often more damaging to a case).  

It is always important to provide enough information to the Office of Personnel Management to meet the burden of proof, of a preponderance of the evidence, in preparing, formulating and filing a Federal Disability Retirement application; too much information will sometimes be damaging; too much of the wrong kind of information may be very damaging.  As the title of the well-known book implies, one must be careful not to construct a “bridge too far”.

Sincerely,

Robert R. McGill, Esquire

Federal Disability Retirement: OPM’s Standard of Proof

In reviewing a Federal Disability Retirement application under CSRS or FERS, the mandate of burden is determined both by statute and regulation, and the Merit Systems Protection Board reiterates the burden of proof in each of its decisions — that of proving one’s case by a “Preponderance of the Evidence“.  

This is a relatively low standard of proof — of showing that one is eligible and entitled to Federal Disability Retirement benefits under FERS or CSRS based upon a showing that, with all of the evidence considered, it is more likely than not that the Federal or Postal employee has shown that he or she cannot perform, because of one or more medical conditions, one or more of the essential elements of one’s job.  

There is often a question as to whether this same standard of evidentiary showing applies to the Office of Personnel Management, and this question is posed because of the statements made in many of the denial letters (which then prompts a necessary request for Reconsideration, or an administrative appeal to the 2nd Stage of the process; or, if denied at the 2nd Stage — the Reconsideration Stage — then an appeal to the Merit Systems Protection Board) issued by the Office of Personnel Management, to wit:  The evidence you submitted did not show a “compelling” reason why you could not…; The medical evidence did not show that you had to be “excluded from the workplace completely”; and other statements which seems to require a higher showing than that of “preponderance of the evidence“. 

OPM is supposed to follow the same standard of proof — that of preponderance of the evidence.  Sometimes, they need to be reminded of it.  

However, inasmuch as the safety mechanism for review of an improper standard is an appeal to the Merit Systems Protection Board, such a reminder often must take the form of an appeal.  Without the appeal basis, the Office of Personnel Management can ignore the relevant statutory burden of proof.  But then, that would not be the first time that an agency acted in a non-compliant manner.

Sincerely,

Robert R. McGill, Esquire

Federal and Postal Disability Retirement: Applying the Legal Standard

In preparing, formulating and filing a Federal Disability Retirement application with the Office of Personnel Management, it is important to understand the legal criteria of “preponderance of the evidence”, to attempt to meet the legal criteria; to state and argue that the legal criteria has been met, and to reiterate and show how the legal criteria has been met.

Thus, as the Office of Personnel Management is a bureaucracy with multiple levels replete with clerical and administrative staff, it is important to present, to show, to reiterate, and to affirm:  the point to get across must be established in a succinct, effective, efficient manner, but it must be firmly established.

“Preponderance of the evidence” can be quite subjective, but within the context of such subjectivity, it encompasses the conceptual analogies of:  X is more likely than not; the quantitative weight of the evidence shows that the burden of proof has been met; the qualitative whole has proven that one is entitled to Federal Disability Retirement benefits; the compendium of evidence, both medical and supporting, shows that Mr. Y’s medical condition does indeed prevent him from performing one or more of the essential elements of his job; and similar conclusions to be reached as a result of the entirety of the evidence presented.

Of these analogies noted (which is not meant to be an exhaustive list, but merely an attempt to illustrate the meaning of the concept of “preponderance of the evidence”), the one which is most dangerous for people to embrace, is the “quantitative weight” of evidence.  For, ultimately, gathering a thick stack of medical documentation is the easiest way to put together a Federal Disability Retirement application, but the least effective.  And in the end, it is effectiveness which we seek, and not ease of completion.

Sincerely,

Robert R. McGill, Attorney