CSRS & FERS Disability: End of Year

The New Year is upcoming. For those who are anxiously awaiting a decision on their Federal Disability Retirement applications, remember that this is a continuing process. Thus, whether or not the application gets approved or denied prior to the coming New Year, the process of then having the Agency provide the necessary payroll information in order for interim payments to begin, will still take some time. Unfortunately, the Office of Personnel Management is a bureaucracy. Within each bureacracy, as with all such gigantic entities, there are individuals who are competent in what they do; others, less so. Once a disability retirement application has been approved, the best thing which can be done to expedite payment on an approved claim, is to be persistent (on a daily basis, and some times on an hourly basis); be cordial and professional with each person you speak with, but be firm; get the name, telephone number, and write down any “promises” which an OPM person makes or proposes to make; then get a firm date as to when the promise will be fulfilled. Also, it is helpful, if possible, to get a supervisor’s direct number. Remember, good manners and courtesy will get you a long way; “befriending” an individual will get you even further; and gaining a sympathetic ear will get you the farthest. Be persistent, patient, and a pain-in-the-behind — all at once.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: The Time to File

A question often asked is, when is it the right time to file for Disability Retirement? Must you wait until one has been disabled for over a year? Do you have to file for Social Security first, before filing for OPM Disability Retirement? Should the Agency be notified at the beginning of the process, or some time later down the road? What is the best time to approach my doctor about getting his or her support for disability retirement? These are all “timing” questions — each important in its own right, as are all such timing questions.

Since the processing from start to finish, to obtain disability retirement benefits, may take 6 – 8, sometimes 10 months, it must be timed financially — is there enough sick leave, annual leave; should donated leave be requested? Once LWOP is taken, should one remain on LWOP throughout the entire process? As to whether one must wait for a year of being “disabled” before one can file — the answer is “no”. So long as the doctor believes that the medical disability will last for at least a year (within reasonable medical probability), one has the proper medical basis to file for disability retirement. As to filing for Social Security, the Office of Personnel Management actually only needs to see the receipt, showing that one has filed for SSD, at the time of approval of the disability retirement application. And how about notifying the Agency?

This is a question which should be decided after discussion of several factors, with one’s attorney, who may provide for proper legal advice, the potential consequences of informing the Agency, etc. Ultimately, timing questions are a matter of particular importance — particular to the situation and circumstances of each individual case. With that in mind, it is often a good idea to have the counsel of an experienced attorney in the area of Federal Disability Retirement.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: Christmas Season

Christmas is upcoming. The Office of Personnel Management, along with many other Federal Agencies, is beginning to “shut down” for the Holiday Season. OPM will be making many decisions concerning pending disability retirement applications. For those who receive a denial, obviously a negative decision coming during the Holidays is unwelcoming news; for those who receive an approval, the reaction is normally that it is great news and a needed Christmas present. But a negative decision — a denial from OPM — needs to be put into its proper perspective. Yes, it is an unfortunate bit of news coming at a bad time; but those who file for disability retirement benefits, must always look upon the process as one involving 4 steps: The initial application step; if denied, the Reconsideration step; if denied a second time, an appeal to the Merit Systems Protection Board; if denied by the Administrative Judge at the MSPB, an appeal to the full Board via a Petition for Review (PFR) — and even a fifth step, to the Federal Circuit Court. Remember, Disability Retirement is a “process”; the fact that it coincides with the Holiday Season does not change the long process which it involves.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: Reaction of the Agency

I am often asked whether or not, at the beginning stages of the process of filing for disability retirement (when medical narrative reports, records, & other supporting information is initially being gathered), whether it is a good idea to notify the Supervisor and/or Agency of the intent to file for disability retirement benefits. That all depends upon multiple factors. Often, the employee still desires to work. Because of the medical disabilities, and the continuing impact of the employee’s medical inability to perform one or more of the essential elements of the job, there is often the potential danger of an adverse Agency reaction — of using the statement of the employee to restrict or send the employee home, using the employee’s declaration of intention as an excuse that it was the employee’s own admission which resulted in such Agency action.

On the other hand, there are Agencies and Supervisors who, acknowledging the employee’s long tenure of loyalty, will “work” with the employee to provide some sort of temporary duties and accommodating employment stipulations. Such temporary measures are rarely considered to be “legally sufficient accommodations” under disability retirement laws, and therefore would have no impact upon any “accommodation issues” when the time of filing actually occurs. In the end, the timing and manner of informing the Agency and the direct supervisor must have the input of the employee — who knows his/her agency, and the potential reactions therefrom.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Using the Law

The growing body of law is a pliable, ever-changing process, and where appropriate, it is the implied duty of the attorney to apply arguments and persuade by analogy. Sometimes, actions by agencies which, in one particular context, may be deemed as a negative factor, yet in the context of filing for disability retirement, it can be turned around and applied as “proof-positive” that, indeed, it only further shows that one’s medical condition has impacted one’s ability to perform the essential elements of one’s job.

Thus, while an employee may be placed upon a PIP (“Performance Improvement Plan”) or placed on LWOP and subsequently terminated and separated from federal service based upon unacceptable attendance (and in such termination cases, perhaps the Bruner Presumption would not be applied in a technical sense), it is appropriate to argue to the Office of Personnel Management, and further, to the Judge at the Merit Systems Protection Board, that while the technical application of the Bruner Presumption may not apply, nevertheless, such Agency actions are indicators of the acknowledgment and concession, that the employee suffered from a medical condition, that the medical condition indeed impacted his or her ability to perform the essential elements of the job, and that is why unacceptable attendance and/or a PIP plan was initiated. Negative agency actions, in the context of applying for disability retirement, must be interpreted and argued in the best light possible, in each instance.

Sincerely,

Robert R. McGill, Esquire

Kentaiji Winds, the Lizard, and the Ontological Preemption of Storytelling

In the fourth year of the Kagemusha Shogunate, six years since the Tatamorii massacre when the Kazekuo Clan and the Daizoku family committed seppuku upon the death of their Master, a single man arose as the undisputed Master of the Kofuku clan of samurai. His name was whispered with awe and fear. Children in the countryside would play out the legends which swept and changed, like the kentaiji winds from the north that brought the sweet fragrances from the volcanic pits, mixing the bitter taste of ashes, hot spring waters, deep chasms of the heated underworlds, mixed with the cherry blossoms along the Zen Monastery of Kyozuku – as each roll of the winds picked up new mixtures of fragrances and changed in its essence, so the stories of the brave feats of Sazuro – the master swordsman – grew with each breath of the gods.

Legend has it that Sazuro, on a morning filled with the ashen fragrances of the kentaiji winds, in the dew mist of sunrise when the lizard pauses with its mouth parted to allow the rising sun to warm its blood, its transparent eyelids half shading its dilated pupils, sat before his garden, tended with care and patience, swept where each rock and stone rested upon the previous one, and the one before, combed meticulously to form a whole, as only a zen master could embrace; for zen is not to try, but to do, and yet in the act of doing, to understand, and embrace the void of his surroundings. Cross-legged, eyes closed, Sazuro breathed the air of winds; his mind embraced nothingness; his ears heard darkness; his eyes saw silence. Suddenly, from a hundred yards above, along the ridge of the surrounding mountains, the arrow came with the swiftness of the volcanic winds of gods, aiming with lightening precision at the heart of Sazuro. His teacup in hand, his eyes closed, his head slightly tilted, in the silence of darkness, with the sun rising with the pink tint and the dew of morning evaporating as the lizard began to limber under the rising heat, Sazuro flicked his wrist and caught the arrow just inches from his heart. The lizard opened its eyes. Sazuro began running; with such effortless strides, he ran barefoot up the side of the mountain, eyeing the ridge from whence the arrow had come, his sword in one hand, the arrow in the other. Some say that the kentaiji winds stopped blowing because the speed of Sazuro’s rush to meet his attacker created a counterwind; still others claimed that the lizard and man were one, that as Sazuro ran up the rocky mountain, the lizard had disappeared. As he reached the top, the archer suddenly realized that the volcanic fragrances of the kentaiji winds were now replaced with the throbbing of his own heart, the smell of his own sweat, and the mixture of one who had tried but failed; fear enveloped the archer’s mind. But the trap had been set, and the corners of the archer’s lips curled slightly with mischief; the second, hidden archer in the treetop; the two ronin samurai behind the large boulder to his left; and the archer himself with an arrow ready to shoot upon the figure of Sazuro over the ridge. But the kentaiji winds shifted, and Sazuro smelled the sweat from the archer, the garlic enjoyed the night before by the hidden archer in the treetop; the unwashed scent of the ronin samurai – the winds warned Sazuro of each, and the dangers hidden; from whence the dangers came; and how many. Or, perhaps, as some have said, the lizard knew the countryside, and each fly and insect which moved within its boundaries. For the lizard, too, was nowhere to be seen near the rock garden.

For the Zen Master, the encounter with Being is more than stepping upon a thorn in a half-sleep. Though the yell of pain, the trickle of blood, the wakefulness of sudden encounter, crashes us headlong into the realization that the world around us harms, titillates, roughs up and soothes, it is so with each of us; and not merely for the Zen Master. The ronin samurai, masterless by definition, and thus ronin, without identity, would surely die. Legend has it that Sazuro, with one swift movement, decapitated both of their heads, and the body of one took two steps before the second head landed in the cradling arms of the first. Whether consciousness was lost before the body separated from spirit, or spirit recognized the horror of being headless and thus soulless, we shall never fathom to know. The tail of the lizard left a streak of wetness upon the sun-baked, whitewashed boulder which, for a time, had hidden their presence from Sazuro, and the lizard, or both, or one. Nothingness was left for the two ronin; without an identity, without their heads, they evaporated, as the morning dew that morning, as the kentaiji winds began to shift again.

Umberto Eco, in his work, Kant and the Platypus, notes that in the primordial state of man, whether in the deep meditative abyss of a zen master, or that hypothetical time of man pre-language, “being is not a philosophical problem, any more than water is a philosophical problem for fish.” But can such an encounter ever occur? For man is by nature, inherent in his very rationality, wrapped within the definitional essence of Aristotle’s ascription of rationality as his very essence – a storyteller. A storyteller is a purveyor of words, put together to form ideas, for creations of conceptual models, in order to compose and describe a symphony of the human condition. Whether man was or was not ever in that primordial state, the essence of the storyteller impedes any such naked encounter with Being. Yes, self-awareness is an attribute of man; yes, the differentiation between I and thou, the consciousness of self, the awareness of one’s self apart from the other; the non-verbal realization of being; but, always and foremost, we bring with us the need to tell the story. Wrapped into the essence of man is a swirling precondition of historicity; that man comes not from a vacuum, but with a story. The baby who comes into the world possesses a name before she is named; she is the daughter of two who came together in love. And the history of that story is an infinite history of being.

The best trial attorneys are the best storytellers. Trial attorneys do not merely convey or portray “facts” to jurors; they tell stories – stories of crimes and misdemeanors, of passionate advocacy; of injuries so horrific as to make dull minds in a jury box impassioned and outraged, to lengths of irrationality such that the awarding of monetary compensation somehow makes up for the storied outrage. Suspend the fact that money is an insufficient substitute for loss of limb or life; the storyteller convinces us all that compensatory damages sufficiently provide a viable alternative to mental anguish. Go figure. Yet, the narrative told, the human drama described, the conflict relived, and the encounter between I and thou, until a community of empathy is solidified, where the jurors begin – through the story – to see it as we against the defendant. “We the jury find for the plaintiff, and award damages in the amount of ____”

And, as legends grow, Sazuro’s feats of courage and bravery never strayed far from believability. There are legends, and then myths and self-perpetuated, vain-conceited portrayals of bravado. Sazuro’s reputation needed no exaggeration. The hidden archer in the tree was able to shoot an arrow in the general direction of Sazuro; the very branches which he had hoped would shade him from revelation and retain him within the void of darkness, was that very obstacle which prevented him from attacking. The master samurai disappeared behind the boulders; the lizard slithered unnoticed between crevices and followed the paths of nature; and suddenly the sword of Sazuro, the one which whispered death when unsheathed, twirled effortlessly end over end and struck the hidden archer through his neck. With gurgling sounds like a river about to drain with a whirlpool of suctions, the lizard paused, waited, and when the lifeless thump of the body fell into the tall grass below, Sazuro retrieved his sword, and wiped the blood, the saliva, and the waste of human soil, upon the robe of the dead villain.

For, consider the master storyteller, Anton Chekhov, in his short story, Grief (translator’s subtitle: “To Whom Shall I Tell My Grief,”), where the cab-driver, Iona Potapov, within a span of 6 pages, tells the story of human need; of a son’s death; a tale of tragedy, and of human indifference. And in the end, he turns to his horse, and speaks the mournful song of every human desire: “That’s how it is, my old horse. There’s no more Kuzma Ionitch. He has left us to live, and he went off pop. Now let’s say, you had a foal, you were that foal’s mother, and suddenly, let’s say, that foal went and left you to live after him. It would be sad, wouldn’t it?” Sadder still if Iona was left incapable of telling his story. For the very ontological encounter that he and all of us have, is one which tells a story. To be human is to tell a story of one’s humanness; for we are neither inanimate objects, indifferent to the weathering storms of our surroundings, anymore than we are Pavlov’s experimental subjects exhibiting conditional reflexes or revealing transmarginal inhibitions, reacting or shutting down in response to our surroundings. For, Nothingness is not just the absence of Being; it is, more profoundly, the existence of Silence. And so the Zen Master attempts to reveal to his novices the path to enlightenment, to shed one from the confusion of one’s self; to dive into the abyss of Nothingness, a cauldron within a maze of conundrums, only to know that in the art of trying, one may lose forever the soul of his being. But the true zen master knows – lives – the essence of man as the storyteller.

Sazuro was a warrior. His zen training was a means to escape the natural fear of death; being a warrior defined the essence of Sazuro. For a warrior, it was the penultimate act to return the weapon meant for his death, to the one who so attempted to kill him. Sazuro, with arrow still in hand, stood before the archer. The eyes stared; it is a frightening sight to watch a man’s eyes, when those eyes show more than mere fear; for fear may be an uplifting emotion, one which allows for survival, and to be able to fight for another day; but fear mixed with the certainty of oblivion, when the mind knows that the body cannot respond to the adversary who stands before him – such fear results in the loss of soul of a man. A warrior’s first duty is to protect his lord; the second, to protect himself; and for the warrior samurai, if he fails the former, he must affirmatively fail the latter, and commit seppuku. Today, Sazuro stood before his enemy because the enemy desired to kill his lord; to kill his lord, he needed to kill Sazuro. Both Sazuro and the archer knew this. Legend has it that as Sazuro raised the hand which held the arrow which, but for the swiftness of the lizard in the misty dew of morning, aimed but an inch from his heart, and the hand which beheld the abyss of death beyond the valley of life, reached and grasped, stopped and froze, the pointed arrow; Sazuro raised the hand, and before he could act, to return the arrow to its rightful owner, the archer trembled, oozed blood from his pores, and convulsed in a weighty heap of quivering death. The legend of Sazuro – of death in silence, of vanquished enemies without raising a sword, would spread throughout the Kagemusha Province. And the children, playing in the dusty streets in towns and cities, would act out the legend; and the only true fights which would erupt noisily, would be the shrill protestations of the child who was chosen to be the archer.

Heidegger, in Being in Time, wrote: “When tradition thus becomes master, it does so in such a way that what it ‘transmits’ is made so inaccessible, proximally and for the most part, that it rather becomes concealed. Tradition takes what has come down to us and delivers it over to self-evidence; it blocks our access to those primordial ‘sources’ from which the categories and concepts handed down to us have been in part quite genuinely drawn.” Yes, but what Heidegger did not understand – or fully comprehend – is that the blocking of such access was not a negative event to be corrected; it is, after all, the very being of our human-ness.

For, just as the lizard was seen the next morning raising its shiny white underbelly to the rising sun, so Sazuro meditated in silence before the crystal white stones of his rock garden. The kentaiji winds blew warmly that morning, bringing forth the soft fragrances of volcanic ashes, cherry blossoms, and the silent encounter with Being. But whether Sazuro was aware of the presence of the lizard, or the lizard felt the fearsome reputation of Sazuro, we shall never know. Only the storyteller can shed light upon that.