Medical Retirement (for US Federal Employees): Administering Treatment versus Administrative Functions

Doctors rarely have any problems with administering treatment based upon clinical encounters and subjective narratives from their patients; yet, when it comes to providing a medical report and performing similar administrative functions, the sudden pause, hesitation, and sometimes outright refusal, is rather puzzling, if not disconcerting.

Such trepidation from the doctor can obviously result in a difficult wall for purposes of preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS.

For, much of medical evaluation, diagnosis, prognosis and prescribing of treatment encompasses receipt of subjective responses from the patient:  where the pain is present; the nature and extent of the pain; the history and chronicity of manifested symptoms; even functional capacity evaluations must necessarily be an observation of the subjective actions & reactions of the participant.  Of course, there are often distinguishable “objective” factors — swelling; carcinogenic versus benign tumors; broken bones, etc.

On the other hand, even MRIs and other diagnostic tools reveal only that X exists — not that X results in symptom Y.  An example would be a bulging disc — while the abnormality itself may show up on an MRI, whether the individual experiences any pain from the abnormality may differ from subject to subject.

This is why, despite the willingness of a doctor to treat based upon most factors being “subjective” in nature, it becomes a puzzle why the same doctor shows an unwillingness to write a report stating that, because of the medical conditions for which patient M is being treated, one must necessarily conclude that he or she cannot perform essential elements X, Y and Z of his or her job.

It is the jump from treatment-to-disability-determination which is often problematic for the treating doctor.  All of a sudden, the excuses flow:  ”I am not trained to make such determinations”; “There is no objective basis for your pain” (then why have you been treating me for over a decade and prescribing high levels of narcotic pain medications?); “I can’t say whether you can or cannot do your job”; and many other excuses.

The switch from administering treatment, to treating administrative matters, is one fraught with potential obstacles.  How one approaches the treating doctor will often determine whether such obstacles can be overcome — and whether one’s Federal Disability Retirement application can be successfully formulated.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Workers: Pain and the Fallacy of Objectivity

Pain by definition is “subjective”, if by it one means that the experiential verification of the condition is uniquely possessed by the “I”, or the subject of the experience.  By contrast, that which is deemed “objective” is presumably validated by more than the possessor of the experiential condition — i.e., by third parties; by testing for the validity and verification of an event through means other than the personal narrative of a singular subject.  Yet, if verification of an experience is accepted merely by sheer volume of a collective consensus, then most scientific revolutions in advanced discoveries would never have survived.

In Federal Disability Retirement law, it is often the argument of the U.S. Office of Personnel Management that the Federal or Postal applicant has failed to provide “objective” medical evidence in presenting his or her case.  The narrative of having a condition of “chronic pain”, or “severe pain” — being “subjective” by definition — is not deemed “objective“, and therefore cannot be the valid basis alone for a Federal Disability Retirement case (or so the argument by OPM is often presented).  Even the results of an MRI will not necessarily satisfy the scrutiny of OPM; for, ultimately, an MRI can only reveal an observable abnormality — not that a person experiences “pain”.

Fortunately, there are a number of cases in law which rebut OPM in their attempt to bifurcate between “objective” and “subjective”, and such legal tools should always be cited and applied in any Federal or Postal Disability Retirement application.

While pain may indeed be subjective by definition, the objectivity of a Federal Disability Retirement application should never be based upon what OPM deems as sufficient; rather, it is the law and the long history of legal guidance by the courts which should mandate how OPM acts.  Indeed, if we let OPM’s subjective determinations rule the day, we would all be left in an existential state of pain — one which would then result in a collective consensus which may be deemed objective in nature.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement for Federal and USPS Workers: Legal Tools

Few disciplines and classes of artisans create their own tools.  Musicians do not fashion their own instruments; accountants do not produce calculators or computers; painters do not manufacture their own brushes.  The blacksmith does, however, form and mold his own ironworks.

Similarly, the lawyer formulates the tools upon which he crafts his arguments; for, as most Judges are lawyers themselves, and the vast majority of legislators are also attorneys, so the statutes which are issued, and the judicial opinions which are rendered, are analogously “created” by those who are members of the class identified as “lawyers”.  Once created, it is how the tools are used which makes all the difference.

In Federal Disability Retirement law, the multiple tools available must be utilized for the very purpose of their making.  Thus, application of the Bruner Presumption must be invoked where appropriate, and “stretched” to their logical extension wherever possible; the “Trevan” rule concerning SSDI approvals should be pointed out whenever it has been approved during the process of waiting for a decision on a Federal Disability Retirement application; and the restatement of the applicable legal criteria in Henderson v. OPM should be emphasized when OPM attempts to misinterpret the applicable statutory criteria in being eligible for Federal Disability Retirement as requiring a 1-to-1 ratio between medical conditions and positional duties; and multiple other legal tools.

The issue of “where” a tool was manufactured, unless poorly constructed, is rarely one of importance or relevance; rather, it is how the tool is applied which is the issue of greater import and significance.  For it is precisely the “how” and the efficacy of the utilization of a tool which results in the intended consequences of such use.

For the blacksmith, a well-fitting horseshoe; for the accountant, a tax savings; for the artist, a masterpiece; for the lawyer, a victory.

Sincerely,

Robert R. McGill, Esquire

Federal Worker Disability Retirement: Algorithms & Human Peculiarities

In maneuvering through the process of filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, there are potentially multiple stages that one may encounter:  The First Stage of the process — the initial filing; if denied, one has a right to have the denial “reconsidered” by filing a Request for Reconsideration within thirty (30) days of the denial; if denied by OPM a second time, then one has a right to file an appeal to the U.S. Merit Systems Protection Board, before an Administrative Judge.

There are, beyond the three stages identified, additional appellate stages of the process, including a Petition for Full Review before a 3-Judge panel of the MSPB, as well as an appeal to the Federal Circuit Court of Appeals.

At each stage of the process, the Federal Disability Retirement application is reviewed and evaluated for sufficiency of proof and satisfaction of the statutory criteria for eligibility; and, moreover, a different person looks at the application at each stage of the bureaucratic process.

Thus, there is no singular algorithm — no application of a computer model which is identical across the board — in the evaluation of one’s Federal Disability Retirement application.  Instead, a different person reviews and evaluates the Federal Disability Retirement application at each stage.  This is probably a positive approach, and one which would be deemed “fair” by any objective standard.  For, while an application of a standard algorithm may be deemed objectively impersonal and unbiased, whereas human beings, in their inherently fallible nature may indeed possess biases and inclinations; nevertheless, it is the peculiarities of human imperfections which are still the trusted traits for procedural determinations.

That is why there is such a hue and cry over the increasing use of video replays and electronic line judges in sports; for some reason, we still trust in the human perspective, as opposed to the cold hardware of computers.  Perhaps, in our collective childhoods, we all became paranoid from watching HAL 9000 in Kubrick’s 2001:  A Space Odyssey.  A shivering thought.

Sincerely,

Robert R. McGill, Esquire

Medical Retirement Benefits for US Government Employees: Misinformation

The problem with a society which provides unlimited information is that the traditional controls and mechanisms known for verification and validation of accuracy become diluted or altogether abandoned.  Plagiarism has become a pervasive problem; as vastness of information exponentially explodes, so the chances of being identified for unauthorized copying becomes infinitely lesser, while those who “play the odds” increase in boldness and in sheer volume.

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 a procedural requirement that — sometime during the process of filing with the Office of Personnel Management (OPM) — the Federal or Postal employee must show that he or she has filed for Social Security Disability Insurance (SSDI) with the Social Security Administration.  But it is the “when” which have become enveloped within a convoluted complexity of misinformation.

Various Human Resource Offices are insisting (in error) that SSDI must be filed before an application to OPM can be submitted.  Such misinformation may preclude a Federal or Postal employee contemplating filing for Federal Disability Retirement to meet the 1-year Statute of Limitations in filing for Federal Disability Retirement benefits (after separation from Federal Service), or for other Federal or Postal employees who are still employed, if only because the process of SSDI can be an equally, if not more so, of a daunting administrative process as filing for Federal Disability Retirement.  Further, in attempting to file online for SSDI, there is the question as to whether one is still employed, and if so, SSDI will not allow the online applicant to proceed any further, precisely because such an applicant would be immediately disqualified, anyway.

The fact and correct information is as follows:  At some point in the process of filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, the Federal or Postal employee needs to file for SSDI, and show OPM proof of such filing.  From OPM’s perspective, upon an approval of a Federal Disability Retirement application, they need to make sure that the Federal or Postal Retirement annuitant is or is not eligible for SSDI, for offset-provisions of benefits between SSDI and FERS.  Thus, it is ultimately merely a payment/compensation issue.  Filing for SSDI is not in reality a prerequisite for filing for Federal Disability Retirement benefits, but merely a check upon a coordination of payment benefits if both are approved.

In this vast universe of information, one must expect a correlative dissemination of misinformation; like the black hole in the greater universe of thriving galaxies and dying planetary systems, one can be sucked into the void of ignorance and suffer irreparable consequences as a result.  That is why Captain Kirk needed to be periodically beamed up — if only to make sure that the molecular reconstitution was properly performed in order to continue on in life.

Sincerely,

Robert R. McGill, Esquire

Federal Employee Medical Retirement: The Clarion Call that Never Comes

Medical conditions are often subtle in their subversive impact — a slow, progressively deteriorating manifestation, characterized by pain, depletion of energy and stamina, and with manifestations of symptoms which may not be immediately noticeable with a passing glance.

Most of us meet and greet each other with hardly a glance; of “hello-how-are-yous” as polite niceties which are never meant to be seriously responded to; and in the course of such brief human contact, would not know — nor care to be informed of the details — of how a person truly “is” in the context of his or her life, medical condition, or well-being.

For the Federal or Postal employee who suffers from a medical condition such that the medical condition prevents one from performing one or more of the essential elements of one’s job, being ignored at work by one’s peers, coworkers and supervisors may have become a daily and expected occurrence.

In Medieval times, a clarion call represented a clear and loud trumpeting announcing an event, a call to action, or perhaps the arrival of someone of significance, relevance and importance.  For the Federal or Postal employee who may have to consider filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, an expectation of an analogous call may never come, should not be waited upon, and likely will not occur.

Quietude is the pervasive norm in a society which is impersonal and unable to address each other with compassion or empathy.  Don’t expect a clarion call to be the focal point in deciding to act upon one’s medical condition; it is a call which will likely never be trumpeted, nor heard even if made.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Technical Application of Terms

Wittgenstein’s contribution to Western Philosophy was twofold:  On the one hand, his insight into the role of language and how much (if not all, according to him) of philosophy’s substantive problems and complexities could be unraveled through the analytical dismantling of linguistic confusions, and secondly, the idea that philosophy as an academic discipline should not be given greater stature than any other — in other words, he believed that philosophy was a waning and anachronistic field which would eventually wither on the vines of history, and properly so.

While the undersigned disagrees with the latter assessment, it is the former contribution concerning “language games” and their import to society, daily living, and even to the technical world of legal jargon, which is of interest and relevance.  Lawyers necessarily have a “language game” of their own.  Within the peculiar universe of legal terms, the technical application of such “legalese” has direct and dire consequences if not understood properly and applied narrowly.

In the world of Federal Disability Retirement law, the term “accommodations” is often and profusely applied by agencies and Human Resources Personnel, but more often than not, in a loose and inappropriate manner.  Agencies bandy about the term, to wit:  ”Mr. X. was accommodated by allowing for temporary light duty“; “We provided him with an accommodation by letting him take liberal sick leave and LWOP”; “Ms. Y was accommodated with instructions not to lift over her medical restrictions”; and other such implied applications of the term.

Which of the previously-cited statements constitute a technically correct use of the term “accommodation” within the context of Federal Disability Retirement?

Answer:  None of them.

Language games have inherently peculiar traits and rules of application; within the parameters of Federal Disability Retirement, too often the rules of usage are not complied with.  The consequences of non-compliance, unfortunately, is that Federal and Postal employees actually believe that they are being “accommodated”, when in fact they are not.

Further, believing that one is being accommodated by an agency may lead to the mistaken belief that one is ineligible for Federal Disability Retirement, when in fact one has always been eligible precisely because the agency cannot or has failed to provide a legally viable accommodation.  Look into the proper use of terms, and the technically correct application of terms.

In the end, Wittgenstein was right:  Language games reveal more about the competence of those who play them, than about the lack of precision exhibited by human behavior.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Government Employees: Legal Arguments

Legal arguments represent a peculiar form of persuasive argumentation; by appealing to statutory authority, precedents as set by prior court cases and administrative legal opinions, as well as decisions rendered in previous decisions — the foundation of a legal argument rests upon the validity of that which occurred prior to one’s own case.

That is why, in making a legal argument, lawyers argue “by analogy” — via similarity of factual context, as a logical proposition:  X resulted in Y; the factual circumstances in A are similar to X; therefore, A should similarly result in Y.  It is not, in terms of pure syllogistic logic, a valid one to make; for the dissimilarities between A and X may well determine the outcome as to Y.

Further, familiarity with the underlying reasoning of a legal opinion is essential to making a valid legal argument.  That is why non-lawyers who attempt to cite case-law and legal authorities as a basis for their Federal Disability Retirement often fail, and fail miserably:  while it may be the right case-law to cite, the analogy may not fit the context.  In preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, it is not only important to create the nexus between one’s medical condition and the positional duties of the Federal or Postal job; moreover, it is essential to make the logical and legal argument in a persuasive, effective manner.

According to an Aristotelian approach, man is indeed a rational animal, and rationality is effectively pursued through a logical methodology; but what is not stated in such an approach, is that rationality and logic do not constitute the entirety of the universe of human persuasion; legal argumentation is merely one facet of the society within which we must live; in the context of a Federal Disability Retirement application, it may play a major part; and that is why citing the right case, making the proper analogy, and creating the logical nexus between facts and “the law”, is essential to a successful outcome in a Federal Disability Retirement application, whether under FERS or CSRS.

Sincerely,

Robert R. McGill, Esquire

Postal and Federal Disability Retirement: A Sudden Awareness

One often muddles through life, so long as nothing extraordinary occurs.

A medical condition may begin to impact the Federal or Postal employee, perhaps in a peripheral, non-threatening manner, at first; then, over time, a series of events occurs; perhaps, like the domino effect we witness in a causal calamity of sequential occurrences, to wit:  the medical condition; a second condition, this time requiring a new medication regimen; side effects; further manifestations of symptoms; a new diagnosis; missing more work than usual; sidelong glances from supervisors and coworkers; and before one realizes the full import of what has happened, one suddenly becomes aware that no longer is one considered that “star employee” by the agency, but a malingerer, a problem-child, and one who is teated in a fashion as in the old remnants of leper colonies.

When such a time erupts, and at a moment of such awareness, it is time to consider preparing, formulating and filing for Federal disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS.

While not offering the perfect solution, it does allow for the Federal or Postal employee suffering from a medical condition, a way out of an otherwise untenable position:  a time for recuperation; a level of financial security; a potential for engaging a second vocation and earning additional money above and beyond the disability annuity.  That sudden awareness is an indicator; in a similar manner to the revelation of symptoms, which is a signal of the body trying to warn a person of an impending medical crisis, so the awareness that one’s peers, coworkers and supervisors are viewing you in a different light is a triggering mechanism which should be heeded.

Sincerely,

Robert R. McGill, Esquire

Medical Retirement Benefits for US Government Employees: An Aristotelian Approach

Aristotle’s Nicomachean Ethics has been the primary foundation for the Western paradigm of proper behavior in philosophy.  Quite distinct from his obtuse Metaphysics, the ethical framework of Aristotle takes a pragmatic, almost Confucian approach to correct behavior — balancing context, temperament, timing and correct behavior in formulating a modulated encompassment of how one should act.

As with all things in life, there must be a “balance” — and a recognition that time and relative context of affairs must be taken into consideration before one should act.  In preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether one is under FERS or CSRS, one must similarly recognize that there is an insight into the balance of life before one can proceed with any action, whether it is an administrative action before the U.S. Office of Personnel Management, or before one’s own agency.

A Federal Disability Retirement application must be “proven”; as such, there is a distinction to be made between that which one “experiences”, and that which one can “prove”.

In such a context, sometimes a medical retirement packet may take some time in order to fully develop and evolve.  Doctors may not be able to be approached immediately; instead, at the right time, and in the right manner, they may be willing to provide the necessary medical and professional support in order to make one’s Federal Disability Retirement case successful and productive.

The pragmatic approach which Aristotle used in his ethics is still relevant today:  at the right time, in the proper context, and taking into consideration the temperament of others.  In this way, success can be attained by possessing an insight and wisdom into the world of human affairs.  This was the approach of Aristotle; and so it was with Confucius.

Sincerely,

Robert R. McGill, Esquire