FERS & CSRS Disability Retirement for Federal and USPS Workers: As a Process

It is often a necessity to be reminded that the preparation, formulation, and ultimately the filing of a Federal Disability Retirement application under FERS or CSRS, with the U.S. Office of Personnel Management, is an administrative process.

By “process” is meant that it involves multiple levels of time frames and stages, and is not merely constituted by a single “filing” of paperwork.  It is not a defined “right” to a benefit which is triggered by a certain event — such as age, filing of a form, etc.  Rather, it is a benefit which is determined by an administrative process of eligibility.

One must prove, by a preponderance of the evidence, that one is “eligible” for the benefits.  In order to do that, one must, of course, meet each of the legal and regulatory criteria as set out by statutory authority, regulations propounded by the Office of Personnel Management, and case-law authorities handed down by the Merit Systems Protection Board and the Federal Circuit Court of Appeals.

As such, time frames for issuing determinations are made by the agency granted such authority — the U.S. Office of Personnel Management.  And, further, the process will often necessarily involve multiple stages — the Initial Stage, the Reconsideration Stage, an appeal to the U.S. Office of Personnel Management, then a Petition for Full Review, and if necessary, an appeal to the Federal Circuit Court of Appeals.

Time frames, stages, applicability of the law, meeting each of the statutory requirements — they all constitute a long and complex “process”, and one which must be dealt with whether one agrees with it, wants to, or is somehow unprepared to do so.

Sincerely,

Robert R. McGill, Esquire

Medical Retirement for Federal Workers: The Chance of Winning

To characterize the filing of a Federal Disability Retirement application under FERS or CSRS, from the U.S. Office of Personnel Management, in terms of the percentage chances of “winning” is a natural occurrence.  While not strictly or metaphorically similar to a sports event, or a duel or challenge between two opponents, nevertheless, to obtain an approval is considered a “win” and to be denied throughout the entire administrative process is considered a “loss”.

Thus, attorneys also view their careers in such terms — of placing each case either in the “win” column, or its only polar opposite, the “loss” column.  This is a competitive society; one in which most things are characterized in such a way, and to bemoan the reality of viewing it that way would be a waste of energy, time and focus.

To win, then, is the ultimate goal (obviously), and therefore one must attempt to quantitatively increase one’s chances that the Federal or Postal employee will “win” a Federal Disability Retirement application under FERS or CSRS.  Yet, the approach and methodology of too many Federal and Postal employees who prepare, formulate and compile his or her OPM Disability Retirement application, reflects the very opposite approach.  To “win”, as in every other competitive arena of life, requires preparation, planning and purposeful strategies.

For a Federal Disability Retirement application, it requires proper and effective medical documentation; a narrative stated in “connecting the dots“; and a readiness to reply to the legal challenges which are likely to be forthcoming.  If the Federal or Postal employee is going to characterize a OPM Disability Retirement application in terms of being a competitive activity, then it needs to be approached as such.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Additional Supporting Evidence

In preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, there is nothing to preclude one from attaching multiple supporting documentation in proving one’s eligibility for Federal Disability Retirement benefits.

In doing so, however, it is appropriate to keep in mind that the conceptual paradigm of “supporting” should be just that — it must be to assist, help, or otherwise enhance such evidence which constitutes the central component of one’s Federal Disability Retirement application.

Thus, “supporting” should not be the primary basis of one’s evidence, but rather, that which further enlightens and advances the primary documentary evidence.  For example, statements from co-workers, photographs, and similar supporting evidence can be provided to OPM, but only if –and as — it enhances the primary documentation, which should be comprised of medical documentation from treating doctors, specialists, referral consultative medical providers, etc.  Even ancillary supporting documentation — SSDI approvals, VA assignation of disability ratings, OWCP acceptance, OWCP second-opinion doctor’s reports, etc — should be viewed as “supporting”.

It is important, as an aside, to recognize that the OPM Case Worker does not, and will not, expend hours upon hours reviewing every piece of document one submits, and therefore it is important to streamline and provide an efficient, effective presentation.

Think about it this way as a guiding principle:  If you approach a file which is an inch thick, or one which is 8 inches thick, which do you tackle on a Friday afternoon?

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Government Employees: Language and Reality

In most circumstances of life, the chasm and divide between language and the reality which such language is meant to reflect, is wide and irreconcilable.  The problem is often that language over-states and overpowers reality.

When it comes to a medical condition, however, it is often the case that the opposite is true:  language is inadequate to effectively, properly, or sufficiently describe the severity, pain, extent and scope of the medical condition being suffered.  Language is meant as a tool; a conveyance in order to communicate an X as reflected in the world of Y.

In preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, it is important to close the expansive divide between the reality of one’s medical conditions and the words, ideas and concepts which are utilize in an attempt to communicate the experiential phenomena which one is undergoing.  Suffering; mental lapses; suicidal ideations; lethargy; chronic and diffuse pain; panic attacks; such conceptual paradigms must be sufficiently conveyed by the elasticity of language.

While sympathy and empathy are not required components to evoke in an Applicant’s Statement of Disability, it is a goal to strive for.  Yes, there is the legal criteria to attempt to meet in a Federal Disability Retirement application, and the objective assessment and evaluation of a Federal Disability Retirement application does not require that the Case Worker at OPM have any feelings of sympathy or empathy — but it often helps if the narrative form contains some emotive content of such evocation.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Medical Disability Retirement: The Necessity of Explicit Redundancy

In preparing, formulating and filing for Federal Disability Retirement benefits from the Office of Personnel Management, whether under FERS or CSRS, it is important to submit material, at each and every turn possible and available, which repetitively and redundantly satisfies each of the legal criteria necessary to meet the eligibility requirements as espoused by the Office of Personnel Management.

Whether it is because the Case Worker at the U.S. Office of Personnel Management does not have the time (because of being overworked) to “read between the lines”, extrapolate or otherwise comprehend the implicit meaning of a statement; or the mechanical application of the “7-part” legal criteria is merely performed by comparing and contrasting the listed legal criteria to the substantive contents of the Federal Disability Retirement application — the reasons for the failure to understand the implicit (and sometimes explicit) import of the statements made are irrelevant.

Thus, for example, one would assume that if a medical narrative report states that the medical condition upon which a Federal Disability Retirement application is based, is considered to be a “permanent” medical condition, then one would implicitly understand that such a statement meets the criteria concerning the requirement that a medical condition must last for a minimum of 12 months in order to meet the eligibility criteria under the law.

However, “permanent” does not necessarily mean (apparently) “lasting for a minimum of 12 months”, and whether the interpretation is somehow lost because the words themselves do not perfectly conform, or because there is some nuance of meanings which only OPM is privileged to comprehend, is an irrelevancy.  What is relevant is to meet the legal criteria and the guidelines of the law.  As such, make sure and have the medical provider understand that language used must conform to the letter of the law — literally.

Sincerely,

Robert R. McGill, Esquire

Federal Disability Retirement: Process Argument and Legal Conclusions

Legal conclusions are extraordinary conceptual constructs:  without knowing the process of how one arrived at the conclusion, lawyers and others can utilize it to their flexible extreme without any contextual regard and argue with it on either side of a fence or, if there are more than two sides to a fence, those as well.

That is why, for instance, in a Federal Disability Retirement case before the Office of Personnel Management, whether under FERS or CSRS, one cannot simply provide the Office of Personnel Management with an approval letter from the Social Security Administration showing that SSDI has been approved.

Such evidence, while in and of itself certainly shows that one is “disabled” from gainful employment — does not “prove” that one is eligible for Federal Disability Retirement benefits under FERS or CSRS.  Why?  One would think that a higher level of disability determination would necessarily constitute a showing of all lesser eligibility criteria, but there can be the rare exception, and it is that rare exception which the law allows for in refusing to accept the legal conclusion as evidence and in place of the “process” evidence.

First, it could be that SSDI was filed for based upon different medical conditions than that filed for in the Federal Disability Retirement application.  Or, it could be that the particular kind of job, with all of its essential elements, from which the Federal or Postal worker is filing for Federal Disability Retirement benefits, is the one rare and exceptional work which can be performed, despite being totally disabled from all other jobs in the universe of employment.  As such, the context and “process” of how one got to Point B from Point A is a necessary component in a Federal Disability Retirement application.

One must still submit the medical evidence which shows that the Federal or Postal employee is disabled from performing one or more of the essential elements of one’s job.  While the conclusion of the journey is important, the process of how one got there is still relevant.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Remembering What “Supportive” Means

Over time, one’s memory and historical perspective becomes clouded and obscured.  In preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, there is obviously a long and complex history of changes, amendments and refinements to the aggregate compendium of that which constitutes the totality of “the law” governing Federal Disability Retirement benefits.

Thus, since the initial inception of the enactment of statutory authority granting the U.S. Office of Personnel Management authority to approve Federal Disability Retirement benefits under CSRS (and later under FERS), there has been an evolution of statutory amendments, regulatory clarifications, case-law expansion, contraction and clarifications — the composite of which constitutes “the law” governing Federal Disability Retirement applications whether under FERS or CSRS.

Part of the evolutionary process includes what is termed “supportive” documentation or evidence, such as an Agency’s determination that the Federal or Postal employee cannot be accommodated; the Flight Surgeon’s decertification of an Air Traffic Controller’s medical clearance; a Law Enforcement agency’s conclusions that a Federal Law Enforcement Officer is unable to meet the physical requirements of his or her position; and many other agency determinations which “support” a Federal Disability Retirement application.  But “supportive” does not mean “primary”, and the Federal or Postal worker must always remember that such ancillary evidence must be in addition to the primary evidence submitted in a Federal Disability Retirement application.

Don’t mistake the support evidence as replacing the essential evidentiary component of a Federal Disability Retirement application, whether under FERS or CSRS. The primary evidence must always come first — both by definition, as well as by statutory requirement.

Sincerely,

Robert R. McGill, Esquire

 

Disability Retirement for Federal Workers: Working while Waiting

During the process of preparing, formulating and filing for Federal Disability Retirement benefits from the Office of Personnel Management, whether under FERS or CSRS, the question is sometimes asked as to whether a Federal or Postal employee who is filing, or has filed, can either (a) continue to work in the Federal or Postal job he or she is occupying, or (b) work at another, private-sector job, during the process.

Because Federal Disability Retirement is not a disability annuity based upon “total disability” (unlike Social Security Disability), but in fact encourages Federal and Postal workers to remain productive in the workforce, the fact of continuation of work during the process should not generally have an impact upon a decision rendered by the Office of Personnel Management.

The key, operative word, of course, is “should”.  The Office of Personnel Management will sometimes bring the issue up, and make certain assumptions — as to the similarity between positional duties of one’s Federal/Postal position and the private sector job, or that the Federal Agency or the U.S. Postal Service has “accommodated” the Federal or Postal worker, and therefore that is the reason why continuation in the position has been possible.

Such assumptions obviously need to be addressed, but they are often based upon a presumption founded in error — for, “light duty” or “temporary” duties do not constitute a legally viable “accommodation”, but that is something which OPM has a difficult time understanding.  The fact that the Federal Agency which makes the legal determination on the viability of a Federal Disability Retirement application, has a lack of understanding of “the law” governing the legal criteria, is rather astounding, but true.

Sincerely,

Robert R. McGill, Esquire

Federal Worker Disability Retirement: Pushing for a Decision

In these difficult economic times, when alternate or secondary employment is hard at best, waiting upon the Office of Personnel Management for a decision on one’s Federal Disability Retirement application, whether under FERS or CSRS, can be unsettling.  

There are, of course, multiple ancillary methods of “putting pressure” upon the Case Worker at OPM — contacting a supervisor; repeatedly calling and leaving multiple voicemails; sometimes, contacting a congressman/woman to initiate a “congressional inquiry” into the matter.  Whether, and to what extent, such ancillary methodologies work, is anyone’s guess.  

Hume’s argument concerning causation is probably at work here:  If an approval of a Federal Disability Retirement application is received shortly after pressure is initiated, one can declare that it “worked” — that the effect of an approval followed the causal impact of such pressure.  If a denial of a Federal Disability Retirement application is received shortly after such pressure is initiated, perhaps one may suspect that while the pressure may not have “worked” to one’s liking, nevertheless, the fact that a decision was made shortly after the initiation of such pressure may “prove” that the effect followed the cause.  

Or, as Hume would argue, does the fact that the rooster makes a ruckus shortly before the sun rises, mean that the former caused the latter? One will never know.

Sincerely,

Robert R. McGill, Esquire

Early Retirement for Disabled Federal Workers: Responding to an OPM Denial

“Fairness” is a term which is often thrown about freely, indiscriminately, and without thought, when an individual believes that he or she has been wrongly treated.  But an objective analysis of whether or not a particular type or mode of treatment of an individual is justified or not, should be determined by the criteria which has been previously applied.  

In order to accomplish this, there obviously has to exist a “criteria” to begin with.  The necessary precondition of an application of a criteria, in order to determine “fairness” in a given circumstance, should be self-evident.  Thus, in the world of sports, a charge of “unfair play” should be easily determined by looking at the predetermined rules of the game, whether such rules were properly interpreted and applied, and coming to a conclusion based upon whether such rules were followed.  Where there are no “rules” of the game, however, it becomes more difficult — both in alleging “unfairness”, as well as in determining how to analyze a violation of — of what?  Precisely.  

In responding to a denial of a Federal Disability Retirement application from the Office of Personnel Management, whether under FERS or CSRS, there is obviously the legal criteria of eligibility which one can point to.  But if the Office of Personnel Management “adds” to the legal criteria, or otherwise includes in its denial substantive legal jargon which has no applicability in a Federal Disability Retirement case, what is one to do?  

Some denials received from the Office of Personnel Management are fairly simple and straightforward; others, however, can encompass seemingly complex reasons and rationale rising to the level of complicated incomprehension, bundled in a mass of conundrums which puzzle even a legal expert.

To make matters worse, the author of such a denial is not the one responsible for the next level of review.  Instead, the denial from OPM is kicked over to the “Reconsideration Stage” Case Worker.  This can be both a blessing as well as a curse, of course.  Whether the former or the latter, one is left with the complex conundrum of calamities — an incomprehensible denial which must nevertheless be answered.

Sincerely,

Robert R. McGill, Esquire