FERS & CSRS Disability Retirement: The Reasonableness of the Governing Law

Without getting into too many comparisons, the laws governing disability retirement benefits are, upon reflection, actually quite reasonable.  Think about it this way:  yes, it doesn’t pay a great amount, but at the same time, you are encouraged to go out and be productive in some other employment capacity, and are able to make up to 80% of what your former job pays currently.

Unlike the stringent and onerous OWCP/DOL laws, you are not subjected to arbitrary, so-called “independent” medical examinations by doctors who make a substantial portion of their livelihood on rendering such “independent” second, third, and fourth opinions; your application is based upon what your own treating doctor says — not by some doctor who is a specialist in “disability ratings” or “disability determinations”.

This latter criteria is actually for the benefit of the applicant, when you stop and think about it.  For, if the law allowed for disability retirement applications to be determined by doctor’s opinions who are “disability specialists”, and not by your own treating doctor, then what would happen is that the entire disability retirement process would become a war between doctors and so-called specialists, overshadowing the one who should count the most — the treating doctor.

Instead, as the reasonableness of the present law stands, the weight of the medical determination is based upon the applicant’s longstanding treating doctor — and that is the way it should be.  For it is only a doctor who has enjoyed many years of an intimate doctor-patient relationship who should be granted the special weight and status that is accorded in disability retirement laws:  the special status of one who can make a viable, respectable determination of one’s employment capabilities, based upon the medical conditions he or she suffers from.  All in all, the disability retirement laws are governed by a criteria of reasonableness.

Sincerely,

Robert R. McGill, Esquire

Federal Disability Retirement: Patience Is the Key

There is a cyclical pattern which can be identified with the passing of time, and the Office of Personnel Management is no different from other Federal Agencies, departments, or personnel “make-up”.  Summer is here; with the season of vacations and time with families, combined with an already back-logged line of cases and overworked, understaffed personnel, expect delays in receiving a decision on a disability retirement application.  Patience is the key, and Federal and Postal workers have learned by the very nature of working for the Federal Service, how to be patient.

At the same time, being dependent upon an approval of a disability retirement application is worrisome, especially where finances are tight, and the future is uncertain.  Pestering an OPM representative rarely helps to move a case along, and indeed, may even bring about a negative result.  Remember that OPM representatives are simply doing their jobs; do not unnecessarily take up their time by calling them about the status of your particular case.  It has been said that patience is a virtue; by that account, Federal and Postal workers who have filed for disability retirement must be the most virtuous of human beings, for they have endured not only the years of loyal work to the Federal Service, but beyond, while waiting for a decision from the Office of Personnel Management.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement: The Proper Paradigm

Whether we like to admit it or not, we all operate, in all segments of our lives, from a certain “paradigm” (reference Thomas Kuhn, Structures of Scientific Revolutions) or “world-view”. When it comes to Federal Disability Retirements, the majority of Federal and Postal workers who comes to me have a pre-formed, generally negative attitude about the chances of getting it. This is because they have heard too many horror stories; or they have had horrendous experiences with OWCP filings, or EEOC complaints, or other experiences which they then relate to how the disability retirement process must be.

Yet, all Federal and Postal employees must understand that the process of Federal Disability Retirement has many, many inherent advantages which make it different from other processes. For instance, the Merit System Protection Board has often observed, with respect to disability retirement, that it is distinguishable from other processes, because it is not — strictly speaking — an adversarial process between an agency and an employee; rather, the MSPB sees it simply as a single issue — that of an employee’s entitlement to disability retirement.

Further, the role of the Office of Personnel Management, while seemingly one of making things overly difficult for the individual, in reality has a very difficult time in ultimately justifying a denial. Why? Because they do not have a right to have a doctor of their own to examine the applicant/patient (note the difference with OWCP, where you can be sent to second, third, and sometimes fourth medical opinions by doctors chosen by DOL and paid by DOL). Thus, it is almost as if OPM must disprove a case filed by an applicant. Finally, it is difficult to attack a treating doctor of an applicant, unless there is something seriously wrong with the credentials or competence of the treating doctor. All in all, disability retirement for Federal and Postal Workers is a fair process — one which is a valuable benefit for the Federal and Postal Employee.

Sincerely,

Robert R. McGill, Esquire

Virtue and Being

What does it mean to define something? At a minimum, it means to set it apart from others; for if x is to be defined, it must be defined as distinguished from y; otherwise, it remains subsumed and indistinguishable; for if in discussing x, you are unable to make heads or tails out of whether I am discussing either x or y, I have failed to set a boundary around the word, the subject, or concept about which I am discussing. I have failed to define my terms.

When taking on a partner in a business venture; accepting employment with a company or firm; interviewing a potential job candidate; considering a friendship; considering marriage; do we ever ask the question, Does he/she possess virtue? Or, What virtues (pluralizing the concept) does he/she possess? Is he/she virtuous (i.e., does that person’s essence or personhood contain the characteristics of virtue)? Are such questions so culturally irrelevant and anachronistic that they are no longer considered (is it similar to asking, how far must I travel before I fall off the edge of the earth?) Culturally, of course, it is interesting in this Post-modern Age that our language is dominated by purely emotive-injected adrenaline. Do I like him/do I love him/does he excite me/does he care for me? Virtue is without meaning; not because it cannot be defined, for certainly anyone can turn to a dictionary and verbalize the definition; rather, it has no meaning because it has no cultural relevance; it is a vacuous concept; it has fallen off the edge of the earth.

But can a truth exist without a mind to embrace it? Can virtue escape the historical relativity to which it has been relegated? And, moreover, how does one attain virtue? How can virtue retain a significance when the concept itself has been subsumed into relative vacuity? In Book II, Chapter 1, (1103b 21, following), Nicomachean Ethics, Aristotle provides the key:

After noting that “moral virtue comes about as a result of habit,” he states: Thus, in one word, states of character arise out of like activities. This is why the activities we exhibit must be of a certain kind; it is because the states of character correspond to the differences between these. It makes no small difference, then, whether we form habits of one kind or of another from our very youth; it makes a very great difference, or rather all the difference.

Thus, the conceptual vacuity of a concept like virtue need not remain so; truth unembraced and unacknowledged need not be perennially forgotten in the temple of meaninglessness; Aristotle’s point is that virtue, properly understood, has nothing to do with conceptual existence or non-existence; it has to do with the habit of acting in such manner as the consistency of actions brings about a state of character – of being virtuous. Just as one becomes a murderer by murdering; one is dishonest by acting dishonestly; so, one becomes virtuous by acting in a virtuous manner. Simplicity is often the subtle voice of profundity, and Aristotle is the master craftsman. In the cultural void of modern day; where chivalry, manners, being a ‘gentleman’; indignation at moral inappropriateness; embarrassment at lewd conduct; one may still define virtue, simply by being virtuous. And that is certainly how it should be – for words are cheap; a man can claim to be virtuous but act in ways which clearly define him differently; yet, consider the opposite: a man who acts virtuous, remains virtuous despite private thoughts to the contrary, for virtue is not defined by thoughts; it is defined by actions.

And so it is; we may recapture virtue, by being so. Let those who speak meaninglessness sound the hollow sounds of vacuity; those of substance, let his actions reveal the true Being of Virtue.

FERS & CSRS Disability Retirement: The Packet

It is often a good idea to understand the process of Federal Disability retirement, in order to effectuate the best approach in winning a case. Remember, for instance, that in all likelihood, the Applicant will not be speaking with the Benefits Specialist at the Office of Personnel Management; even if you call them (and I never recommend calling too often, for there is the “irritant” factor, which may — thinking in purely pragmatic terms — result in a First Stage Denial of your case), you will be a faceless entity, and merely one case in a long line of cases for the OPM representative to review and decide upon.

Thus, the key is to prepare your packet well — to not place superfluous medical evidence into the pile; to not just make a complete copy of your medical records (OPM is not interested in medical records dating back more than 2 years, at most, and in most cases, should only go back 1 year) and send it in, hoping that the sheer thickness of your file will convince and persuade OPM that your case is “serious”; instead, to make your packet neat, essential, and to the point. Think about it in pragmatic terms: If you have a project to tackle, and you have a choice to tackle the one with little or no effort, or that “other one” that is a headache and will consume your entire day, which one entices you?

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: The Purpose of Case Law Citation

Is it necessary for a Federal Disability Retirement Applicant to cite relevant case-laws and statutory authority when filing for disability retirement? Or, should the medical evidence be sufficient? Certainly, there is no statutory requirement that “the law” be referenced when filing for disability retirement. And, further, it is normally not a good idea for a non-lawyer Federal or Postal employee to refer to case-law or relevant statutory authority, if only because non-lawyers often mis-state the law, or misinterpret relevant case-law authority.

The primary purpose why I refer to, and cite relevant statutory authority and case law, even at the initial administrative stage of filing for disability retirement on behalf of a Federal or Postal employee (normally, I will prepare a lengthy legal memorandum for each case), is because I want to preempt any mis-statement of law to the benefits specialist reviewing the application packet. It is important at each stage of the process to point out the relevant law, the applicable case-law, the judicial opinions which have addressed the multiple issues which can deter or potentially derail a disability retirement application. While the benefits specialist at the Initial Stage of the process may not be fully aware of the applicable laws, it is the job of the Attorney to point out the law, and demand that the Office of Personnel Management conform to the relevant, current judicial constraints which should be adhered to.

Sincerely,

Robert R. McGill, Esquire