Story for the Day

We are sitting in front of a fire; outside, ice covers the trees; snow has fallen. In days past, white was the color of purity; but then minds greater than poetry analyzed such metaphors and determined that white was not a color at all, but the absence of color; that black was the collection of all color; and so white lost its stature and meaning; purity was lost; angels fell from their pedestals, and no one could speak of snow, purity, covered trees or angels flying through the air from clouds casting dark shadows and snowflakes with designs carved from the mind of God.

No, poetry was never to encounter the rational; mathematics was poetry for those who sought certainty in a world of certitudes lost in the beauty of words; but then the fallen nature of man came to mold beauty in the mirror of himself, and from the fallen nature came the hunger for power; and from that hunger for power, beauty was lost forever. White lost its color of purity. Snow no longer fell. God no longer carved each snowflake. Instead, the birth of a juggernaut came to be: science, analytical philosophy, Darwinism, the rise of man, and the loss of poetry. Nietzsche declared, Ecce Homo. Years later, when men lamented the loss of youth, the casting away of innocence, a young boy looked out through a frost-covered window pane and dared to ask, “Is one snowflake different from another?” From that question, poetry was born anew, and angels began to fly with renewed vigor, and God picked up his carving knife and began working again.

Thought for the Day

Have you considered the conceptual/philosophical distinction between acting and living, the difference between a stage and the reality of the life we live, other than the superficial considerations of a scene prepared for a specific purpose as opposed to a world as a “given”? For an actor can never act, nor a life be lived, before first understanding the underlying conceptual distinction between the two. For, consider the following: An actor, to be a truly ‘great’ actor, must assume the character of the one he acts, and in the very act of assuming that character, he lives, breathes, and assumes such a character. The fact that such a life is lived only for a specified span, at a given time, within the confines of a given area, does not distinguish that scene or act as any different from a life lived within a specified span, at a given historical time, within the confines of a greater geographical area.

Is this what Shakespeare meant when he wrote “As You Like It,” with Jaques stating, “All the world’s a stage, and all the men and women merely players; They have their exits and their entrances; And one man in his time plays many parts, His acts being seven stages,” and he goes on to describe each such stage. But it is a play which clearly distinguishes between reality and the stage; for Shakespeare is brilliant in at once clouding the distinction while separating it starkly — for in this great play there is no incest, no deaths, and the only blood spilled has a distanced, fairy-tale quality; it is a play which stresses words above action and matter above words; with a character (Rosalind) who must stop play-acting at some point and reveal herself to Orlando in her own person; and Jaques ends his brilliant speech with the stark reality of old age: “Last scene of all, That ends this strange eventful history, Is second childishness, and mere oblivion, Sans teeth, sans eyes, sans taste, sans every thing.” The reality of sickness, old age, disease, and loss of physical health — all point to the distinction between the stage of acting and the stage of life. Truly, actors must always read Shakespeare, because he epitomizes the combining of life upon a stage — the tragedies, the comedies, the conversations both common and philosophical; with the stage which reflects the philosophical underpinnings of the world around us.

The reason why we have “mere actors” today — in movies, on T.V., and in most plays (exempting, of course, Mr. Stoppard) — is because few read Shakespeare anymore; and fewer still read him with the passionate love that is demanded. Shakespeare brings reality — beyond the mere commonplace — to the stage; projecting the ideas, the historical significance, the unchanging concerns of human tragedies and comedies, upon a world which either ignores or no longer understands such greatness upon the stage. Shakespeare embodies all that Western Civilization has to offer in the embracing of ideas, words, human stories, and historical events. Why did this happen? Because Truth is no longer revered; Shakespeare revered Truth, because he revered language which expressed such Truth.

Further, a person can truly act only if he understands how the world is a stage, and how the stage is a reflection of the world — while at the same time understanding the profound difference between the two.

OPM Decisions of Denial in FERS & CSRS Disability Retirement Case

There are two elements: competency/knowledge, on the one hand, and authority/power on the other. When the two come together, we then have the combination resulting in a reasoned decision. It is indisputable that an Agency has the authority and power to make administrative decisions. On the other hand, if the Agency makes a decision without the proper competency or knowledge, then it can become a problem.

In reviewing a denial letter from the Office of Personnel Management in disability retirement cases, what is most disturbing are the following: First, 90% of the denial letter is based upon a computer template. The references to dates, medical reports & records reviewed, etc., comprise the remainder of the 10%.

Now, that is not to complain that OPM should or must “reinvent the wheel” each time it makes a decision — indeed, the fact that much of the decision is boilerplate, template language is not that disturbing. What is, disturbing, however, is when — under the pretense of competency and knowledge, it makes blatant mis-statements of the law.

Some of the mis-statements are: “The medical documentation does not show that you are totally disabled from performing your job.” There is no requirement under the law that a person needs to be “totally disabled”. Or: “We are unable to make a determination because of the lack of objective medical evidence.” Medical evidence does not need to be “objective” as opposed to a doctor’s reasoned medical opinions. Or: “Fibromyalgia is a condition which waxes and wanes.” OPM is not a medical facility and has no business making medical determinations or declarations.

The authority and power of an Agency must always be used in the context of competency and knowledge, and the Office of Personnel Management must make its decisions based upon the prevailing case laws, statutes and regulations which govern it. It is the job of a disability retirement attorney to point out such misstatements of law.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement: Remember the Details

At each state of attempting to get a Federal disability retirement application approved, it is important to “remember the details”. For example, at the Merit Systems Protection Board level, in conducting a Hearing, remember that if the best medical evidence/testimony you are able to provide is through a health professional other than an “M.D.” (e.g., a therapist, a Nurse Practitioner, a Chiropractor, etc.), always point out the unique credentials of the provider, to include whether in the particular state in which he/she practices, if greater latitude and responsibilities are given to the practitioner.

Thus, it may be that in one state a Nurse Practitioner can exam, diagnose, and prescribe a medication regimen without the direct oversight of a medical doctor, whereas in other states such latitude may not be allowed. This should be pointed out to the Judge, to emphasize greater credibility of the testimony of the practitioner. Further, remember that in Vanieken-Ryals v. OPM (U.S. Court of Appeals for the Federal Circuit, November, 2007), the Court therein reiterated that the medical documentation/evidence required must come from a ‘licensed physician or other appropriate practitioner’, and so long as that medical practitioner utilizes “established diagnostic criteria” and that which is “consistent with generally accepted professional standards”, the testimony cannot be undermined. Use the strengths of the case you have, and emphasize the little details that matter.

Sincerely,

Robert R. McGill, Esquire

When Once the Question, “Why”?

Praditha was a slight boy of ten years; his dark skin betrayed the life he lived; and the hands which reached out to add to the fire revealed hands misshapen from toil and hard work. “Grandfather, when will it rain?” Such a question received a warmth from the old man he so loved; whose long white beard reached just below mid-chest; with a face cut with deep ravines of wisdom; and pock-marks from a childhood ravaged by disease; and yet a youthful glint in his eyes. “Why do you ask?” grunted the old man.

The boy did not expect such a question to his question, for his answer would reveal a motive and intention he did not wish to reveal. But he had learned long ago that no amount of careful consideration would sidestep the wisdom of his Grandfather; nay, it was beyond wisdom; it was an uncanny knowledge that pierced the very soul of his young mind. “I ask to…” but he paused, looking down at the fire, wanting to embrace its warmth, yet to avoid the steady gaze of the man on the other side.

“If it rains, then of course you cannot be expected to work in the fields. You must then go out into the woods to explore, to do what you have been doing on other rainy days.” Praditha continued to look down at the red glow; a sudden spark broke the silence, and tiny pebbles of hot balls crackled and shot towards the boy, who jolted backward. And in that instant when he jerked his head back from the fire, he saw the sly and playful smile of his Grandfather.

For he knew; they both knew. In the world in which they were born, lived, survived, toiled, and finally died, there was little time for play; there was time for a smile; for a thought; for reflection upon rest; but play was a time of waste, except on a day wasted by rain.

The boy had heard of villages where play was commonplace; larger villages where the old ways were lost and children played every day; where such questions of “when” changed to “why”, as in, “Grandfather, why does it rain”? But in his village, such questions were without meaning; the why would come only when games would be played on days even when the rains did not come. But with the emergence of the why came the destruction of a way of life; of daily toil, where son, father and grandfather would awaken with the sun; where the sun would be the gauge of work; where being and the world within which, were never separated, because the questions of why would never emerge to separate the two.

The why of the world, as with the emergence of all such entities, always comes at a cost. “And,” Grandfather added, “when it stops, then we shall work all the harder the next day.” Beyond the fire, the glow of warmth enveloped Praditha. For it was Grandfather who had worked for some seventy years; yet his smile gave off the warmth, as the embers slowly died, and darkness revealed the time of sleep.

Additional Guidance on Disability Retirement Supervisor’s Statement

Some have asked me whether acceptance of a temporary light duty assignment is of concern in a disability retirement application. If you look at SF 3112B (Supervisor’s Statement), Section E(3), the question is whether the employee has “been reassigned to ‘light duty’ or a temporary position?

If the Supervisor answers “No”, then of course there is no issue which would arise which would impact a disability retirement application; if the Supervisor answers “yes”, then it can actually be used as an argument for a disability retirement application, because it can be argued that the fact that the Agency has reassigned the applicant to a temporary “light duty” position is additional evidence of the acknowledgment by the Agency that the applicant could not perform one or more of the essential elements of one’s job, and therefore in such recognition, the Agency provided for a temporary light duty assignment. Acceptance of such an assignment is not a bar to disability retirement, precisely because it is not a “reassignment” to a “vacant” position, as required in the case of Bracey v. OPM.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement & Treatment Compliance Issues

While the issue of ‘causality’ is not one which often comes up in OPM disability retirement cases (by obvious contrast, of course, is the fact that causality, whether it was caused while working, on the way to work, outside of the parameters of work, etc, is often an issue in OWCP/DOL cases), there are certain cases where such an issue may be important to address. Baker v. OPM, 782 F.2d 993 (Fed. Cir. 1986) is actually a case which continues to remain of interest, in that, there, the Court noted that where obesity had a causal impact upon the appellant’s back pain, and since the appellant failed to follow medical instructions to lose weight, therefore the cause of the back pain was not as a primary and direct result of a medical condition, but rather because of non-compliance of reasonable available corrective or ameliorative action.

Thus, there are certain areas where you will be in danger of having your disability retirement application denied: one such area, where the Merit Systems Protection Board has been fairly consistent, is non-compliance of a prescribed medication regimen. In other areas, however, especially where surgery is recommended but where the percentage of success cannot be easily quantified, there is much more leeway. Disability Retirement is an area of law which encompasses a wide range of complex and potential “legal landmines”, and it is often a good idea to seek the counsel of an experienced attorney to help guide your way.

Sincerely,

Robert R. McGill, Esquire