FERS & CSRS Disability retirement: End of Summer and Postal VER

Summer is almost at an end. The Postal Service, through the auspices of the Office of Personnel Management, is offering Voluntary Early Retirement (VER). For many, this is a positive thing; the decision to take the VER should be a financial decision. An analysis comparing the monetary return should be made between what an employee would receive under the VER and under disability retirement; if the financial difference is great, then obviously the employee should consider filing for disability retirement after the VER has been approved.

Remember that the employee would have one (1) year to file for disability retirement benefits, after the individual has been separated from service. Steps should be taken now, however, before accepting/filing for the VER, to establish the medical condition and disability prior to separation from service. This can be done by discussing the medical condition with one’s treating doctor, before the VER is applied for. Such early steps will help ensure the success of a future filing for disability retirement benefits — because the employee must establish that the medical condition impacted one’s ability to perform the essential elements of one’s job prior to separation from Federal Service.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement: When & How to Act

When people call me to ask if they need legal representation in filing for disability retirement benefits under FERS or CSRS, I try and provide as “objective” an opinion on the matter as possible. I represent hundreds of people in filing for, and obtaining, disability retirement benefits; it is my specialty, and it is how I make a living. At the same time, however, I believe that I can be completely honest in providing guidance as to whether an individual should obtain legal representation, or needs to obtain representation.

For instance, for individuals who have already sent in their disability retirement packets to OPM (via the Agency for those still on the rolls; directly to Boyers, PA for those who have been separated from service for 31 days or more), I normally advise the applicant to wait — wait until a decision has been rendered, and hopefully the individual will not have to expend the funds for attorneys fees, and an approval will be in the mail. On the other hand, every now and then, an applicant who is waiting for a decision from the Office of Personnel Management, will describe the content and substantive materials comprising the disability retirement packet, and certain statements — during a telephone consultation with me — concerning what is stated in the applicant’s Statement of Disability, will give rise to concern, and in those instances, it may be wise to either withdraw the application, or immediately take steps to supplement the disability retirement packet.

Each FERS or CSRS disability retirement packet is unique, because each individual & individual’s medical condition is unique. That’s what makes the practice of law in the field of representing Federal and Postal disability retirement applicants so interesting, and so professionally satisfying.

Sincerely,

Robert R. McGill, Esquire

Fourth Parable and Lessons: Job Owned, but He Was Not Owned

One cannot, of course, improve upon the Book of Job; how Job’s wealth was vast and plentiful; where he was surrounded by his wife, seven sons and three daughters; the company of his friends, a reputation as a man who was blameless and upright; and in an instant, everything was lost.  Yet, when his wife said to him, “Do you still hold fast to your integrity?  Curse God and die!”

But he said to her, “You speak as one of the foolish women speaks.  Shall we indeed accept good from God, and shall we not accept adversity?”  In all this Job did not sin with his lips.  Job 2:9-10.

It was Job who had great wealth, vast possessions; but upon losing his material wealth, he remained steadfast in his faith and joy.  For Job owned, but was not owned.  We mistake sometimes, and think that by not owning, we show virtue; but virtue is the ability to remain faithful upon a test; if the test is forever avoided, one may never know whether your virtue was real, or merely the butterfly’s dream.

Lessons from these four parables:

We must always be able to discern between the real and the absurd; to see beyond words; for words must match deeds; words must not merely be a playground of conceptual potentialities, though such conceptual frameworks sometimes have their value and place in the world of humanity.  Yes, a mud puddle could potentially drown a child, but the reality of such an event is remote, and must be viewed as such.  The test of a man may one day come; one must always be prepared for such a test.  And so the sword of a samurai must be ready to be unsheathed; but ever remaining in its sheath, if never used; yet, ready to be used, when called upon.  And virtue cannot be true where no test is ever encountered; un-ness is not a virtue when it is embraced; the virtue of un-ness is in the having, not in the vanity of viewing the Koishu Gardens, and thinking that by not owning, you have grasped the serenity of life.

FERS & CSRS Disability Retirement: What It Means to Have the “Burden of Proof”

Remember that the applicant who is requesting disability retirement benefits from the Office of Personnel Management always has the burden of proving, by a preponderance of the evidence, that he or she is entitled and eligible for disability retirement benefits.  Even if the Agency proposes and effectuates a removal based upon one’s medical inability to perform the essential elements of one’s job (thereby invoking the “Bruner Presumption”); nevertheless, the burden of persuasion always remains with the applicant.

Never assume anything; yes, the Bruner Presumption is nice to have, but don’t ever rely upon it to have your disability retirement benefits handed to you, because it won’t be.  The Bruner Presumption “can be rebutted if adequate evidence is identified in the record to establish that the appellant actually is not entitled to disability retirement; even with the rebuttable presumption, the appellant retains the burden of persuasion at all times to establish his entitlement to disability retirement” (See Morton v. Office of Personnel Management, 88 M.S.P.R. 691 (2001). Remember:  you always have the burden to prove your entitlement to disability retirement benefits; you must prove it; you must work tirelessly to show it.

Sincerely,

Robert R. McGill, Esquire

Third Parable: Kitaro and the Blind Beggar Boy

Kitaro was a Monk of the Fifth Order; he was ranked by the Society of Elders to be “other-worldly”.  He had lived through the Purge of the Daiku Shogunate; he had survived through the Winter of Three Famines.  He was known throughout the Kinshu Province as The Wise One.  Wisdom was spoken without words; strength was displayed through a stare; Kitaro was visited by princes and royalties from the world over; he owned nothing – but a teapot and two teacups.

On this beautiful morning, with the sparrows chirping in the blossom of the radiant rock garden of Koishu Gardens, where the gravel had been carefully swept in symmetrical flowing waters around the moss-covered boulders, Kitaro was about to sit down for his morning tea.

The morning had seen many beggars wandering about, asking the Monastery for some rice.  One such beggar had been a child of ten who was blind from birth.  What irritated Kitaro – well, perhaps ‘irritated’ was too strong a word, for he had shown no such emotion – was that the boy was, in his opinion, slovenly as well as being blind.  A man can shut out the world with total darkness, Kitaro had thought to himself; but the world still sees such a man.

He prepared to sit down for a cup of tea; he could smell the sweet aroma of the boiling tea in the teapot; he stood just a foot away from the table upon which he sat each morning; and as he customarily did, he turned to the Koishu Gardens to survey the meditative serenity, so that when he would sit, he need not turn to the garden for further refreshment; his mind’s eye would already hold the butterfly’s dream, to enjoy along with the taste of his morning tea.

As he surveyed the beauty of the garden’s lack, he marveled at how beauty is not in the abundance, but in the un-ness; that life was not to be discovered in possessions, but rather in the joy of less-ness; and these life-lessons he had learned well, for he owned nothing – but for the teapot and the two cups, of course – and his joy was not found in material wealth, but rather the simple chirp of a sparrow landing upon the twig of a decaying tree, unbeknownst to the world, as decay is merely the lifespring of age, both of the soul, as well as of the body.

The material world had no hold upon Kitaro, and Kitaro had long ago renounced the materiality of the world around him.  By owning nothing – except for the teapot and the two cups – matter could not matter to him.  As he surveyed the vast desolation of the beauty of the Koishu Gardens, the right side of his lips curled ever so slightly, as if to scoff at the world around him; for the butterfly’s dream was the world he embraced; the material world had no hold upon him; the serenity of un-ness was the world he sat on top of; the rampant greed, and world of capitalism, the vulgarity of consumerism, and the unhappiness of the surrounding universe – he had conquered it all.

Kitaro embraced the serenity of the moment; the moment was as a grain of sand, its quiet beauty as uncomplicated as his own soul; the smallness as significant, as relevant, as existential importance, as man himself.  Kitaro felt no emotion; felt only oneness with the grain of sand, with the peace of the Koishu Gardens.

Suddenly, the serenity of the Koishu Gardens was shattered by a loud crash.  Kitaro turned.  Before him, just a foot away, was the stupid blind beggar boy.  Beside the stupid blind beggar boy were the remnants of what used to be Kitaro’s teapot and two cups, the sole possession of the Monk of the Fifth Order.  “Bakka!” Kitaro shouted, his face turning a crimson radiance.  “Bakka!”  The Koishu Gardens, with their serenity of un-ness, remained unmoved.  The upheaval of the world around never witnessed this episode.  The sudden heaving; the blind fury directed at the beggar boy who was blind from birth, but who committed the unforgivable sin of being stupid, and showing that stupidity by shattering the sole material possession of the Monk of the Fifth Order, revealing how such a small matter, indeed, mattered to Kitaro.

FERS & CSRS Disability Retirement: The “Nexus” Between the Reconsideration Stage and the Merit Systems Protection Board

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.

Sincerely,

Robert R. McGill, Esquire