Disability Retirement for Federal Workers: The Legal Responses

There is of course the old adage that “good fences make good neighbors“.  It is meant to magnify the importance of demarcations, and how societal mores, rules, and accepted dictates of common etiquette provide for social boundaries without which the breakdown of common decency occurs.

Fences and boundaries not only contain; they provide markings which restrain others.  The white powder placed on a football field; the painted lines on a basketball court; the pitcher’s mound from which the pitcher must throw the ball; these are all accepted boundaries — symbols of containment as well as of restraining devices to the “others”.

In a Federal Disability Retirement application to the U.S. Office of Personnel Management, whether under FERS or CSRS, imagine what the outcome would be for the Federal or Postal Worker if all that existed were the originating statutes governing the criteria for a Federal Disability Retirement application.  Imagine a world in which OPM was the sole arbiter of its own statutes — of having the right to interpret the dictates of its own mandates.

Look at the recent case of Stephenson v. OPM, in which OPM interpreted the statutes of another agency (the Social Security Administration) and decided that an offset of SSDI benefits against a FERS Disability annuity could still be perpetrated even though no actual receipt of funds was received.

Laws are like fences and boundaries; they are to be used both as a shield, as well as a sword.  Use of legal arguments not only restrains a Federal Agency from acting and stepping out “too far”; they can also be used to attack and force a retreat.  But remember that, just as the fence-building should be left to the carpenter, so the sword should be used by a warrior.  In today’s parlance, don’t think that anyone and everyone can be a courtroom lawyer.

Sincerely,

Robert R. McGill, Esquire

Federal Worker Disability Retirement: The Unresponsive Agency

The complaints abound, and continue to exponentially increase; the U.S. Office of Personnel Management is way behind on its evaluation, review and decision-making process for all characters of retirements, disability retirements included.

It is a given that filing for Federal or Postal Disability Retirement, whether under FERS or CSRS, with the U.S. Office of Personnel Management, must necessarily have an expectation of a time-consuming administrative process, precisely because of the encounter with a Federal bureaucracy.  But it seems that each year — nay, each month and week — the delays continue to expand.

At each step of the way, OPM has become more and more unresponsive, and with new cases coming in, the length of time at every stage, and “between” stages, has been extended.  The process itself contains inherent milestones of delay: from filing the entire disability retirement application to a facility in Boyers, Pennsylvania, which merely annotates the receipt of the case and inputs the case into the computer system; to thereafter sending the disability retirement application, with all of its evidentiary submissions and attachments down to Washington, D.C., where it must first await assignment to a caseworker; then, upon assignment, for the caseworker to even get to the applicant’s submission for review and evaluation.  Then, of course, there is the possibility that the entire packet will be selected to be sent out for review by a contract doctor.

The delays are beyond the control of the applicant, his or her OPM Disability attorney, or the agency for whom the applicant worked.  It is, ultimately, an administrative process which can be tedious, time-consuming, and fraught with delays and extended periods of silence.

Patience may well be a virtue, but the unresponsive manner in which the U.S. Office of Personnel Management has handled the delays, fails to engender much confidence in a system which should be most responsive to those in greater need.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: The Autobiographical Slice

Every story is unique.  Uniqueness is a characteristic of each human life story, precisely because there are no two sets of facts which are identical.  Assuming that parallel universes do not exist, the autobiographical details of each human story defines a distinctive and identifiably different set of sequential life experiences as to any given human narrative.  But uniqueness does not mean relevance, or even imply significance or of great interest.  The reason why the minutiae of the personal lives of the “rich and famous” are of such titillating interest is not because they are unique; rather, it is because they are distinctively different — in a voyeuristic sort of way.

In preparing a Federal Disability Retirement application for the U.S. Office of Personnel Management, the autobiographical details should, for the most part, be left out.  As this author has often referenced Anton Chekhov’s famous short story entitled, “Grief”, it is a given that everyone wants to share the human narrative of one’s story, and more than that, to share it abundantly.  But it is the slice of one’s life, in a meaningful, relevant manner, which must be streamlined in order to ensure relevance and a focused audience — the very attention of the caseworker from the U.S. Office of Personnel Management, which must be provided.

Federal Disability Retirement is a specific submission; it is not the time to convey the unique story of one’s autobiographical details beginning in years past; rather, it must awaken the empathy of the reader — OPM — by the very hypnotic force of the medical conditions as they relate to one’s inability to perform the essential elements of one’s job.

The human story in a Federal Disability Retirement case must be a compelling one, indeed, but within the context of uniqueness distinctively different from the boring autobiographies of mundane stars.

Sincerely,

Robert R. McGill, Esquire

Federal and Postal Disability Retirement: The Left and Right Hands

Having two hands in and of itself does not guarantee cooperation of effort or a manifestation of symphonic coordination.  If the two hands (or more) are contributed by two or more people, without a central cognitive control center, there can be an undermining of efforts precisely because each hand is attempting to engage in an activity independent of the other.

Thus it is with the attempt by an injured or disabled Federal employee or Postal worker to formulate a Federal Disability Retirement application through the U.S. Office of Personnel Management, whether under FERS or CSRS; and, similarly, the identical concept of cooperative efforts applies to the agencies themselves, if seen as entities with “hands”.

The problem, of course, is that OPM is a separate agency from the Federal or Postal entity through which the Federal or Postal employee submits an application.  While the Federal Agency may believe that certain actions definitively settle an issue regarding Federal Disability Retirement, the U.S. Office of Personnel Management is neither bound by, nor even required to acknowledge, the validity of any such determination.

Thus, for example, a particular agency may search for a way to “accommodate” a Federal Worker’s medical conditions, and may assert that they cannot provide a reasonable accommodation.  OPM may look at that and declare that the mere fact that an agency says so, does not mean that the Federal Worker cannot still engage in “useful or efficient” service.

Contradiction?  Inherent confusion?  Or misunderstanding of the law?

It is like the man with the bionic arm:  until the arm can become in sync with the mind of the operator, it is the same as if one only has one arm.  Ultimately, such questions are a “matter of law”, and OPM is almost always wrong with respect to the law.  It is up to the applicant, or his/her attorney, to point it out, and to make sure that the two hands become coordinated in arriving at an approval of a Federal or Postal Disability Retirement application.

Sincerely,

Robert R. McGill, Esquire

Federal Employee Medical Retirement: The Last-Minute Application

If one fails to file for Federal Disability Retirement benefits from the U.S. Office of Personnel Management (i.e., the Statute of Limitations for all Federal and Postal employees in filing a Federal Disability Retirement application, whether under FERS or CSRS, is 1-year from the time of separation from Federal Service) within the time prescribed, then one cannot make any legal arguments or supplement one’s case — precisely because the Federal or Postal (former) employee has failed to meet the minimum statutory deadline.

However, once filed, the case can be supplemented and “added to”; additional evidentiary documentation may be submitted; but amendment to the Federal Disability Retirement application will be severely limited, because you cannot withdraw the application in order to change it — if the withdrawal is effectuated after the 1-year Statute of Limitations passes.  This is because the Federal or Postal Disability Retirement applicant is restricted by the rules governing SF 3112A, where one cannot “add to” the list of diagnosed medical conditions once it is received by OPM (although there are ways to characterize such identified conditions to somewhat circumvent the restrictions).

Sometimes, because of the medical condition itself, or for unforeseen circumstances which are beyond the physical, emotional or cognitive control of the potential applicant for Federal Disability Retirement, such procrastination is simply a fact which must be dealt with.  Whether the day before the 1-year cut-off, or 10 months before, once filed, at least the Federal or Postal employee will have the opportunity to make legal arguments, and for the most part, the ability to supplement his or her case.

It is only if it is NOT filed on a timely basis, that such additional activity will then be precluded.  Thus, the obvious rule:  File before the deadline.

Sincerely,

Robert R. McGill, Esquire

Medical Retirement for Federal Workers: The Circle of Questions and Answers

The tragedies befall frequently enough to make some correlative conclusions; of the athlete who fell short of the finish line; of the one who wanted to just make it one last time, only to become severely injured prior to completing the task; and others who become debilitated within the last 50 yards, or within the parameters of being “within reach” of the end.  This is likened to the Federal or Postal employee who has only a couple of years before full retirement.

Inasmuch as Federal Disability Retirement takes on average 8 – 10 months to obtain (from the start of the process of gathering the medical reports, records, etc., until a decision from the U.S. Office of Personnel Management), the question often becomes whether it is worthwhile filing for Federal Disability Retirement when one has come so close to the finish line.

Each case must be assessed and evaluated with the particular facts peculiar and unique to it; but questions of intelligent assessment should be applied, in order to reach an algorithm of rational conclusions:  When I reach the end (or, “if I…”), will my health be preserved enough such that I can enjoy retirement?  Is the reason why I am contemplating Federal Disability Retirement now, because I have in fact already reached the crucial flashpoint where I am no longer able to continue performing the essential elements of my job?  Is there a possibility that I will not in fact be able to endure the remaining X-number of years left before I reach full retirement?

Questions prompt answers; answers, even if preliminary and tentative, begin the process of further questioning; and so the circle of questions and answers begin to guide and resolve the issues which trouble the soul.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Government Employees: The Nexus

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 the nexus — the connections which are made between any two or more issues, concepts, evidence, etc. — which raises a Federal Disability Retirement application to meet the standard of required proof under the law. Such connections to be made are vital, and determine the success or failure of a Federal Disability Retirement application.

We have all encountered eccentric individuals in our lifetimes — whether of the proverbial “batty-aunt” who talks incessantly about things which nobody understands; or the “flighty friend” who can talk a mile-a-minute about a thousand disconnected issues all in one breath; or perhaps it is a chance-meeting with a stranger who, after a long conversation, one realizes didn’t make a bit of sense in anything that was said.  In conversation, one can engage in such language games which have little to no correspondence to reality, and not have to pay a price for such engagement.

In the world of Federal Disability Retirement, failing to make the necessary connections will most certainly lead to a denial of a Federal Disability Retirement application.  Thus, the persuasive connection between one’s positional duties and the medical conditions; the argumentative connection between the prevailing law and one’s factual statements; the impacting connection between the medical reports and the entirety of the submitted case; and multiple other connections — each must be carefully crafted.

In a world where we come upon a “noumenal” world (as Kant would state), and where our cognitive categories organize the disparate world we discover, establishing the necessary nexus between X, Y & Z is something which the Federal Disability Retirement applicant should never overlook.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement for Federal and USPS Workers: Timing

Once the decision has been made to prepare, formulate, and file for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, the Federal or Postal Worker will often want to “time” the event of filing with the agency.

While this is certainly “do-able”, one must take into account that there is very little control, if any, as to the ultimate timing event:  The U.S. Office of Personnel Management is backlogged at every stage of the process — at the intake point in Boyers, Pennsylvania; in assigning a Case Worker to begin “handling” the claim (whatever that may mean); to actually reviewing, analyzing and evaluating the submitted Federal Disability Retirement packet; to making an actual decision, rendering the decision, and mailing out the decision-letter itself.

Thus, whether for personal or professional reasons — some (or most) Federal Workers are so dedicated as to have a desire to complete projects, make sure that certain responsibilities are delegated properly, etc. —  it is perfectly acceptable for Federal Disability Retirement packets which are prepared and ready to be filed, to be temporarily held or suspended for a timing reason, so long as medical reports and records do not become stale.

Further, in some cases it may take a period of months in order to develop the case fully, where the treating physician may need to order additional tests, try other palliative means of treatment, etc.

Whatever the reasons may be, there is nothing wrong with attempting to “time” the submission with the agency, so long as the Federal or Postal Worker understands that there is no such thing as timing the event with the U.S. Office of Personnel Management.

Sincerely,

Robert R. McGill, Esquire

Postal and Federal Disability Retirement: The Career-ending Event

One often reads and hears about a traumatic injury which suddenly and unpredictably ends the career of a certain sports figure.  Such stories evoke sentiments of empathy, for the potential which was never entirely fulfilled, and for the personal tragedy which befalls the individual, the family, and those who admired the talent which failed to reveal its fullness.  

But in everyday life, such tragedies occur in less spectacular ways; perhaps not as sudden and unexpected incidents or injuries as to bifurcate between the day before and the day after; rather, through a chronicity of time, over months and years of struggling, until a day comes when one must admit to one’s self that the chosen career-path must be reevaluated.  

The trauma of the life-changing event is no less significant to the Federal or Postal Worker than to a star NBA, NFL or NHL player.  For the Federal or Postal worker who has worked diligently, if not quietly and unassumingly, in the chosen career path — a recognition that his or her medical condition will no longer allow continuation in the vocation, has the identical reverberations as those more notably identified, in terms of financial, economic, personal and professional significance, relevance and impact.  

In fact, sometimes even more so — because one never witnesses the long and arduous struggle for the months and years prior to making the decision to file for Federal Disability Retirement benefits, through the “quiet years” of using Sick Leave sparingly; of trying to maintain a semblance of competence and work-completion in the face of medical conditions which are never told, never spoken of, and never acknowledged.  

Filing for Federal Disability Retirement benefits, whether under FERS or CSRS, from the U.S. Office of Personnel management, is tantamount to that “traumatic injury”; it’s just that such an event is rarely, if ever, written about.

Sincerely,

Robert R. McGill, Esquire

Medical Retirement Benefits for US Government Employees: Insufficiency Test

The validity of allegation that there is an insufficiency of X is partly determined by an objective standard, and partly (if not mostly) derived from a judgment as to the nexus between X and the standard to be applied.

In Federal Disability Retirement cases the basis of most Federal Disability Retirement denials is that there is an insufficiency of proof, whether as to issues of light duty or accommodation, medical opinion, medical documentation; questions about deficiency of service; and multiple other specified areas — but all will ultimately be determined to have a “lack” of something such that it fails to meet a “sufficiency” test.  But sufficiency can only be determined by comparing what exists (i.e., what has been previously submitted to the Office of Personnel Management) to what the legal standard of proof requires.

Further, since the overriding legal standard is based upon a “preponderance of the evidence”, which requires that something be ‘more likely than not’, the narrow gap between human involvement in the judgement of sufficiency, and a truly objective basis for such insufficiency, is susceptible to human error.  Because of this, appearance of quantity in addition to quality is often what is required.

As decisions by OPM are rendered by a wide range of people whose judgment, competence and approach in evaluating a case differ greatly, it is unfortunately necessary to take into consideration the foibles of human error.  Until a precise algorithm is invented which applies fairly and accurately in all cases across the board, we must continue to deal with human beings, the their errors of judgment.

Sincerely,

Robert R. McGill
FERS Disability Lawyer