OPM Disability Retirement: Thank the Medical Professionals

If not for the doctors, disability retirement would obviously not be a possibility.  Of course, one may make the self-evident statement that being supportive of a Federal Disability Retirement application is simply part of a doctor’s job; and, to some extent, that would be true.  Doctors should indeed be willing to write up supportive medical narrative reports for their patients. 

Nevertheless, it is because of the doctor, the effort expended, the willingness to testify at a Merit Systems Protection Board Hearing, that the Office of Personnel Management even listens, or reverses a prior denial, and grants a disability retirement application.  Especially when a case gets denied twice by the Office of Personnel Management, it becomes crucial to have the cooperation of the treating doctor to testify in an MSPB Hearing.  This is normally done by telephone, thereby making it a minimal imposition upon the doctor’s time.  Indeed, I often only take a total of 30 minutes of the doctor’s time, including preparation and actual testimony, for an MSPB Hearing.  But the very fact that the doctor is willing to testify — to speak to the Administrative Judge directly to give his or her medical opinion — is often enough to convince OPM to change course, and grant the disability retirement benefits. 

Sincerely,

Robert R. McGill

CSRS & FERS Disability Retirement: Viewing the Office of Personnel Management

Agencies are “like” people; they are “organic” organizations (a redundancy?), and as a corporate-like entity, they respond and react as people do:  cerebrally, emotionally, reactively, angrily, etc.  If one views an agency in this way — treating the entity as one would a person — then you will often get the same or similar results as when dealing with your brother, a spouse, or a neighbor.  And, indeed, as a logical approach, this only makes sense, because agencies and organizations are made up of people. 

Thus, when filing an application for Federal Disability Retirement benefits, it is often important to think of “incentives” in approaching the Office of Personnel Management, to make every effort to have a carrot/stick approach in filing a disability retirement application.  The “stick” part of it, of course, is the law — the threat of making sure that OPM knows that you will be willing to go the full course — to the Merit Systems Protection Board, to the Full Board Appeal, to the Federal Circuit Court of Appeals.  If OPM denies your case and they get it reversed at the appellate level, it makes them “look bad”.  That is the stick to hold over them — the force of the law.  The carrot part of it is to streamline it and make it as easy as possible by obtaining a clear and concise medical report.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Can the Agency Accommodate You?

The term “accommodations” continues to be a highly misused one.  There is the general conceptual application, as when an agency attempts to do something to help a Federal or Postal employee by “allowing” for “light duty”, or allowing one to work at a reduced schedule, or to take sick leave, annual leave, or Leave Without Pay.  But such actions (as kindhearted as they might be intended) do not constitute a legal accommodation under disability retirement rules, statutes, laws or case-law. 

To legally accommodate someone must always mean that the agency does something, provides something, or creates something of a permanent nature, such that it allows you to perform the essential elements of your job.  Temporary measures, or allowing you to take time off, does not allow you to perform the essential elements of your job — instead, it merely allows you take time away from being able to do your job.  Remember, on the other hand, that there is nothing wrong with your Agency doing these things to “help you out”.  It simply does not constitute, or rise to the level of, an “accommodation” under the law.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: Summer Doldrums & the Physician’s Statement

I have often pointed out in past blogs and articles that I do not have my clients sign the Physicians Statement (SF 3112C), for multiple and various reasons, not the least of which is that it is a confusing form, and in smaller print than necessary, leaving the impression to the doctor that what is requested is far more complex than what is actually required.  In its place, for my clients, I write a 4 – 5 page letter outlining the type of medical narrative report which I need.  This is the summer months; everyone from OPM representatives to lawyers, to doctors and Federal and Postal employees, take time off to recover from the hard work throughout the rest of the year.  When doctors take off for some “summer fun”, it just means that they have less time to spend on administrative matters — such as writing up a medical narrative report for their patients.  Because of this, it is important to try and simplify the matter as much as possible, and a blanket submission of the SF 3112C without some explanatory guidance, is not the best course of action.  Doctors need guidance, and in this busy world, it is best to streamline the process for them as much as possible.

Sincerely,

Robert R. McGill

OPM Disability Retirement: Summer Waiting

I have written previously about the long and arduous waiting process & period in trying to obtain CSRS & FERS Federal Disability Retirement benefits from the Office of Personnel Management. Remember that, in your calculation in attempting to survive financially, economically, emotionally, medically, physically, mentally — and in all other ways, keep in mind that the summer months from July to August often represent a “dead zone” when many Federal employees take time off for vacation, time for family, and time for relaxation.  While it is understandable that this makes the Federal disability retirement applicant nervous and anxious to be placed “on hold” when such an important decision may be held in abeyance, it is simply a reality which must be taken into account.  Don’t get frustrated; be patient.  The summer months will come and go, and the important point is to keep looking forward to the future.

Sincerely,

Robert R. McGill, Esquire

Tears

“It is indeed a conundrum,” Master Tokuyazamo said in his soft, almost inaudible voice. His was as a whisper; one strained to hear the words, and in the very act of straining, the dichotomy between the word and the sound of the word was often split in half, as the two wings of a butterfly rise to become one, then to part with a fluidity of colors, and as when one’s imagination of what was said, what one thought was said, and what must have been said, often becomes a mystery. His pupils, gathered in a semi-circle, all cross-legged in meditative posture, leaning ever so slightly, wide-eyed and ranging from ages 6 to 15, with an eagerness that made him smile with youthful glee. For, who was the child, the Master or the pupil, the withered hands of an old man or the fumbling feet of a gangly boy? Was it the mind which determined the age, or the weathered hands, leathery and sunburned, of he who planted the rice fields carved in the sculptured steps of the Totoyama district? On a linear spectrum, his life was arriving at the entrance of the exit; he did not view the convergence of being, time and the soulful call of his yearning mind in such an unbending fashion. And, perhaps that was the paradigmatic problem when the Jesuit gai-jin had visited his sanctuary, the Monastery which had been his home, his garden, his peaceful center of solitude which he tended as a gardener cares for the exotic in that moment of bursting revelatory fragrances when the flower opens the fullness of its beauty, only to reach its pinnacle of being, and then to wilt, wither and die; but for that mysteriously delightful, brief moment, and that is how he viewed his monastic temple, where he swept the rock gardens with such care and precision, where each pebble was a droplet in an ocean of singularity, but at the hands of the Zen Master, pebble upon pebble became a work of art. Ah, but what incisiveness, and that sharp mind, and to have reached such heights of knowledge only to be a lowly sweeper of pebbles? Was the servant not the God of the gai-jin? Would it that he was happier as the carpenter’s son, than a sweeper of pebbles in a Zen garden?

But the Jesuit gai-jin had insisted upon doctrine; he pointed to his sacred Book, and translated for him the wise words of his master, who was God and Man all at once. He could not deny the truth, for the words fit beautifully; the logic of God was irrefutable; the parables were insightful and profoundly moving; but in the end, it was the insistence in his voice which marked the rudeness of his teaching. And, moreover, the cross was too rigid, and did not flow as life must. A river winds through the soil and finds the bend of the rocks, smooths the hardness of creation, and whittles away at the rough edges. So must the words of persuasion, and while he could sense the softness of the voice of that God of Palestine, the harsh tone of the gai-jin grated upon him, and the manner in which he grasped at the wooden cross hanging from his neck on a leather chain, his stubby fingers clasped and somehow unable to encircle the horizontal piece of wood which seemed to jut out discordantly in an abrasive, offending manner; it was unlike the waving bends of the ink of Sumi-e, where life flows as a stream of quietude, curving and dancing and adapting to nature’s winding pathways. Was it so personal? Was the dislike of the gai-jin the basis of his refutation? But that enlightenment would defy such pedantic reasons, but being human, oh so human, meant otherwise.

His pupils wanted answers.

“A story!” Saburo, the abandoned boy left at the stone steps leading to the temple gates at the age of 4, shouted with gleeful abandonment.

“Yes, a story!” joined in the chorus of other boys.

Roshi Tokuyazamo played his best to put on a look of censure and reproof; eyebrows furrowed, his right arm cocked stiffly against the flow of art, elbow up with palm against his thigh, he grunted with disapprobation. “Have you all … lost your sense of decorum?” he roared, narrowing his eyes with exaggerated fierceness, jaw jutting outward, his lips pursed. Nevertheless, his voice still was barely audible.

Silence befell the youthful sea of eager looks. Furtive glances askance; quiet, and deathly silence; then, from the depths of the youngest, a giggle, uncontrollable, squeaking upward until it could not be contained; and the single burst of air restrained, broke forth, and then another, and another, and soon the sea of youthful semi-circle roared into a singularity of unrestrained giggling, until some of the older boys who were still unsure of their position as young elders before the Master, as examples to behold in their position as students before the learned and wise one, smiled hesitantly, until the giggles turned to open laughter, the laughter into guffaws of boisterous untidiness in a temple of Zen. The Master cleared his throat, himself unable to contain the wrinkle of his lips. “Well, then,” he said. “Since decorum cannot be attained, perhaps a story must be told!”

Immediate silence befell the youthful pandemonium, as an axe falls, so laughter is shattered, and silence overwhelms. For to hear a story from Master Tokuyazamo was to learn a lifetime of lessons, one which went beyond decorum, beyond laughter, and beyond self.

The Master spoke: In the rocky pathways of the countryside, deep in the valleys of the Koishi Mountains, where the tributary of the Saitomo, Shinshiro and Kotaichi rivers converge, a stranger ventured unknowingly into the valley of the ronin, where bandits roamed the countryside. The stranger was attacked, robbed, stripped of his earthly possessions, then thrown down into a deep pit, the barren bowels of the earth, where he was left to die. For days he cried out, calling for help. It rained. He cupped his hands and, crippled and unable to stand, he whimpered like a dying mongrel, sipping upon the scarce handfuls of rainwater to extend the life that was no longer his to determine.

Master Tokuyazamo looked slowly around the semi-circle of young faces. Each of the faces revealed a stern serenity, a mask of serious concern; of them, he had a heart for Saburo, of that youth who, though never to be learned or wise, would have the heart of a man to feel the pain, and pain of others was often the pathway to enlightenment. This, few would understand.

He continued: From whence the Saitomo River flowed, a religious figure walked. The holy man of the Saitomo Province heard the mongrel’s whimpering, and at the mouth of the pit, he looked down and saw the dog of a man, half alive, famine-stricken with sunken eyes — and their eyes met. But it happened to be upon a day when God had set such a day apart, where human exertion was not allowed, the sacred laws of doctrine prevented the holy man from helping and…

“But, how could that be, Master!” came an interrupting shout from the semi-circle of youth. A loud chorus of “Shhh!” and “Shush!” and “Quiet!” and such reprimands quickly encircled the semi circle.

The holy man walked around and started away, saying to the dying figure below, “I will pray for you.”

Then, almost immediately upon the fading footsteps of the first holy man, from whence the Shinshiro River flowed, another religious figure walked. The holy man of the Shinshiro Province also heard the mongrel’s whimpering …

“But what about the first holy man – he cannot have been that holy to begin with!” blurted out a voice of youthful exuberance with an undisguised harrumph, only to be again shushed and reprimanded.

This holy man from Shinshiro Province viewed the world as merely the dream of a butterfly, and had achieved a state of cognitive and physical presence, or non-presence, as you might say, that only a Master of such Arts could achieve…

Silence. For, in the youthful semi-circle, even the exuberance of impatience inherent, wanting to burst forth, and helplessly unrestrained in the fertile minds of those lacking in years, could nevertheless recognize that this second holy man was a reflection of the temple pond. No chastisement was required, because the self-reflecting pool of thoughts and recognition, and the anticipation of hearing the story lead to a triumphant declaration of the feats and legendary discoveries and conquests at the hand and mind of the Master from Shinshiro Province, awaited with eager and hungry eyes. The Roshi surveyed the faces of inexperience and naivete, and smiled ever so slightly, as appearance paralleled the inaudible, and with wan acceptance, continued:

This second holy man was considered by many to be wise, though wisdom was always of a fleeting nature, as the soft film left behind when a man holds the wings of a butterfly in his hands. Ever the fragile being, the soft fluttering, yet when the predator snatches upon its wings and destroys a large portion, nevertheless the strength of the butterfly can tear itself away, partially destroyed and torn; yet, even then, the butterfly can continue to navigate skillfully for the remainder of its days with the aid of its antennas and adapt to its malformed and crippled essence; for neither the essence nor the being of the butterfly is defined by its wings, but rather the inner strength which propels its beauty, its dominance, and the dreams of those who fathom a world and universe apart from pain and pleasure. And, as the butterfly denotes the essence of this universe, so the Master from Shinshiro Province contained nothing more than the dream of the butterfly; for in the chasm where the suffering of such a man, gaunt with hunger, crying out with pleas for help, for pity, for…love. But if the nothingness is of no greater value than the mongrel, if pain is no more of reality than the one who feels the pain; if dreams converge in a world where that which appears is of no greater substance than that which is, then love cannot be of much consequence. The Master from Shinshiro Province looked down upon the blackness of the pit, and into the eyes of this pitiful, pitiable human mass of insignificance, and despite his wisdom, his age, his enlightened state of being, he could offer no help, because he could not feel the love of pain which the man below experienced. And so he turned his back and walked away…

“Good for him!” came a shout of triumph. The Roshi had his head bent downward, but his head tilted ever so slightly to spy upon the source of the statement. It was not Saburo, and for this he was glad. It was instead the fat boy, Kitaro, who sat with his arms crossed, fists beneath each opposing armpit, head tilted backward with an air of arrogance and triumph. “The man deserves to die for being so stupid! In any event, it will teach him to meditate and accept his fate with grace and dignity!”

Now, with silent footsteps came another holy man – from the flowing Kotaichi River, where is it said that the soft breath of the gods push the warm waters of the river, in such purity of rushing sounds that the animals from all of the surrounding provinces make their way up the extra mile to drink from its banks. Now, this holy man was somewhat peculiar; he wore a cross which hung from his neck –

Without looking, the Roshi could sense the faces of disdain sweep about the semi-circle – but for one.

He was what we call a Krish-chan, a gai-jin. Now, this holy man, upon hearing the whimpers of the dying man, immediately ran to cut some vines off of the trees, weaving the thickest of the wild vines into a triple-weave, and created a rudimentary but sturdy rope, fashioning a loop at the end, and lowered it down to help the man. After patiently prodding, directing, and with a gentle voice of encouragement, he was able to coax the weak and dying man to place the loop around and under each arm, and with that, the holy man pulled him ever so delicately up to the mouth of the pit. As he pulled, however, what he and the dying man were unaware of suddenly turned the circumstances of impending triumph into an unexpected tragedy. But of course, all of you boys know of this, do you not? For to think of life as mere pleasure and joy is to leave the other half undone; and to view the world of circumstances as a trifle of misery and hardships is the ignore the first half as unfinished; and so it is that life must always be a completed circle; and just as the wings of a butterfly do not constitute the essence of its being, so to expect life only as a vision of triumphs is to live only a half-life. In the deep crevice of the black pit was a nest of poisonous snakes, and as the half-man of a mongrel reached to steady his ascent to life, the fangs of fate struck, vipers of deadly venom, shooting death into the veins of the mongrel. He screamed. He jerked back in excruciating pain, pulling the rope-vine away from the grasp of the Krish-chan, and falling with a dull thud back into the blackness of the death-pit, whimpering as only a weakling could muster from the depths of a depraved and ravaged soul. The desperate, resigned and desolate sobbing of the poor, pitiful mongrel echoed from below, from the depths of darkness, with a despair of submission and surrender so profound, that the Krish-chan at first thought that it must, indeed, be another creature – a dog in pain, perhaps, downriver. He quickly realized, however, that the vine he held in his hands had burned and sliced his palms open, and he felt the sting of bleeding, and the momentary disparity and interlude between seeing the blood forming in clotting pools in his cupped hands, facing upwards toward the blazing sun, and the rush of pain which came thereafter to merge and coalesce into the knowledge that he had lost the one he was attempting to save. The sun was slowly fading into the unknown of the other world, that world between twilight and the ethereal red dusk of the mountain provinces. It is said that the tributary deep in the Koishi Mountains was where the goddess of beauty wept because, in a moment of anger, she looked down into the depths of the still waters and saw the darkness of her own heart, and realized that beauty is indeed but a fleeting figment; and in that instance the essence of beauty became shattered, man became revealed, and the knowledge that man was merely mortal became an undeniable truth. Ah, but that the pool of blood forming in the gai-jin’s hands could bring such clarity as the brightness of the red mountain dust in the dusk of the Koishi Mountains! Are we such saps that we believe that Zen is the only way to truth? Bah!

There was, indeed, curiosity in the faces of youth – even in the titled head of Kitaro. He stole a glance towards Saburo – were they eyes of tears? He could not tell. Whether of tears or merely of lost thoughts, or whether he merely wished that the boy would feel such pathos revealing wisdom in such tender years, he could not discern. He continued:

And so the gai-jin was lost.

Harrumph! came the huffiness from the direction of Kitaro. The Roshi pretended not to notice. In the blackness of the pit below, as the sun was setting and the gods of shadows appeared in a realm of mirroring Kabuki movements, where figures danced in the periphery of one’s imagination simultaneously as fear and foreboding clash in a war of the real, the dreaded, and the trickling sweat of fear, the gai-jin could smell the sweat of his body, mixed with the blood on his hands, and as he peered downward, he could barely make out the figure of the whimpering man. And, indeed, the man was crouched in a grotesque curl of fetal hugging, but whether on his back with his legs up, or on his knees tucked beneath, he could not tell, but the shadows of darkness playing tricks of skeletal outlines, blurring the boundaries between form and substance, as a cross might bear a crucified man but lost in the starkness of the wooden pillars. The sobbing heaves of the dying man bounced within the echo chamber of the rocky pit, and as the venom coursed through the veins of this mongrel, the Krish-chan looked down. Without a sound, he crouched close to the mouth of the pit, and slid down the deep throat of the seemingly bottomless chasm of darkness. He was lithe and skillful enough to land away from the crippled body, now rasping for life. He could smell the stench of impending death. He knelt beside the dying man, and cradled the limp body in his arms. “Holy man,” the dying mongrel rasped, “what are you doing? There is no rope, no way for you to return…”

I am here to comfort you, said the holy gai-jin.

What kind of a man are you? rasped the dying mongrel.

I am merely an ordinary man, who has an extraordinary Lord. As my Lord washed the feet of sinners, so I am here to give you comfort during your last moments of life in this world. For the comfort I may give to you this moment does not begin to compare with the suffering and sacrifice of my Lord, who died because of the abundance of His Love.

Silence. It is always the unspoken word which reveals the essence of being. For, it is words which create a conceptual, parallel universe, that which serves as the skin of the lizard; but for the elegance of a butterfly, whose silent folding wings leave but a residue of the warm breath of gods, Saburo was silently sobbing; but on the other side, to the triumph of the Roshi, it was Kitaro who had turned aside to wipe a single tear which had found the tributary of pores, as the rushing waters of the Kotaichi River grew louder and the soft flutter of a butterfly’s dream faded into the distant echoes of man’s soul, deep in thought, in prayer, and in silence.