Medical Retirement Benefits for US Government Employees: The Game of Go

The game of Go involves planning, strategy, finesse, a sense of when to aggressively pursue, and a lesson of when to withdraw.  It is a game originating from China, thousands of years old, yet identical in play and rules today.  It is a game of daily living; and, indeed, even the tactile component of feeling the soft smoothness of each stone as you place them on the surface of the playing board, along with the geometric beauty of the patterns which your opponent complements as you lay your handiwork — all with the attribute of two basic colors:  black and white.

One can always make too much of an analogy between sports and life; fiction and reality; a mere game, and a process.  Games ultimately are what they are:  a play which, in the end, has no significance beyond the entertainment of the moment.  But some games help to sharpen one’s sense of daily living.

The metaphor and analogy to be applied between the game of Go and practicing law, including preparing, formulating and filing on behalf of Federal and Postal employees to obtain Federal Disability Retirement benefits from the U.S. Office of Personnel Management, is the need to understand the process; to present the evidence in a bold and unabashed manner; and to understand the “opponent” and what the opposition represents and will likely do.

Preempting what the U.S. Office of Personnel Management is likely to do in response to one’s handiwork, is an essential part of both the game of Go and of any practice of law.  That is why a legal strategy is important and relevant in the preparation of a Federal Disability Retirement application — for, like the game of Go, unless you make the proper connections between the medical evidence, the law, one’s positional duties, and one’s statement of disability, you will be surrounded by your opponent’s tactile placement of experienced handiwork, and find that all of your efforts have come to naught.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Alternatives and the Sense of Guilt

In the course of speaking with thousands of Federal and Postal employees over the years, with those who are contemplating filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, both under FERS & CSRS, two prevailing themes often overshadow the discourse:  the sense that there are few alternatives left because of the impact of one’s medical condition upon one’s ability/inability to continue to pursue the intended career-course of one’s life; and secondly, a sense of guilt (or sometimes interpreted as shame) that such a course of action triggers.

The former response (that there are limited alternatives remaining) can often be resolved by a change of perspective:  To accept one’s medical condition, while difficult, is a reality which must be embraced, and in doing so, to be open to a change in vocation and previously-set view of where one wants to go in life.

The latter — of having a sense of guilt or shame for considering the course of filing for Federal Disability Retirement benefits — is often a result of misunderstanding the option of Federal Disability Retirement.  For, Federal Disability Retirement under FERS or CSRS is merely part of one’s compensation package which one signed onto when you became a Federal or Postal employee.  It is not an acceptance of defeat; it is not a resignation from one’s goals; rather, it is an avenue to embrace a course of rehabilitative stage of life in order to be able to recover sufficiently to pursue a different vocation and a different course of action in one’s life.

To remain steadfast and have a sense of fidelity is indeed an honorable thing; but to remain steadfast on a train bound for disaster, is merely a stubborn trait of foolhardiness.

Sincerely,

Robert R. McGill, Esquire

Medical Retirement for Federal Workers: The Tie that Binds

Often, it is an intangible “other” which can never quite be located or defined.

In philosophy, and perhaps in life generally, one should always approach a subject with the view that, if one is unable to define it, then one has failed to understand it, or to purport to possess any knowledge about “it”.  To understand is to define it; to define it, is to circumscribe the parameters of the substantiality of an object, and to “possess” it by knowing its essence.

In formulating an effective Federal Disability Retirement application and submitting it for approval with the U.S. Office of Personnel Management, it is important to not only have each of the details in their proper place — of the substantiating medical documentation which are relevant and compelling enough to awaken the senses (especially for that bored OPM caseworker who must sift through hundreds, if not thousands, of case files over the course of any given year); the statement of disability of the applicant; any legal citations and arguments to be made, etc. — but further, to have a comprehensive, overarching “theme” to accentuate the uniqueness of one’s case.

It is that invisible thread, that “tie that binds” a case, which must always be sought after in preparing, formulating, and filing an effective Federal Disability Retirement application.  Once that tie is recognized and identified, then the Federal or Postal Disability application is ready to be submitted.

Like an ending to any short story worthy of reading or publication, or that special “something” between a man and a woman, it is the ethereal tie that binds which makes all the difference.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Government Employees: Logical Fallacies

The problem with logical fallacies is that the people who make them rarely recognize such errancy (otherwise they wouldn’t repeatedly make them), and further, are often the same people who refuse to recognize them even if it is kindly pointed out.

For example:  In a Federal Disability Retirement case, when the doctor’s report clearly and unequivocally points out that the Federal employee’s medical condition is “permanent”, one would logically infer from such a statement that the condition therefore will last a minimum of 12 months (the legal requirement in a FERS or CSRS Federal Disability Retirement case), and therefore would satisfy the legal requirement concerning that particular issue.

However, the U.S. Office of Personnel Management will often fail to make such an inference, and claim that the legal requirement that one’s medical condition must “last a minimum of 12 months” has not been satisfied.

Now, one essentially has three (3) choices in responding to OPM’s claim at the Reconsideration Stage of the process (or, if made a second time with a denial at the Reconsideration Stage, then to the Administrative Judge at the MSPB):  (1)  Ignore the logical fallacy, (2) Argue that OPM has made the logical fallacy and failed to make the correct inference, or (3) Have the issue restated in any updated medical documentation.

Of the 3, the last is probably the preferable, if only because one should expect that any failure to recognize such an obvious inference will likely reoccur again within the same organization (the U.S. Office of Personnel Management), and therefore clarity of statement (or restatement) would be the most effective course of action.

Sincerely,

Robert R. McGill, Esquire

Postal and Federal Disability Retirement: The Efficacy of an Argument

If a security system is never triggered, can one conclude that it has been effective?  Is the failure of a system more telling than its lack of use?  Can the negation of a fact be used to prove its existence and the validity of a theoretical construct?  Can one argue, See — X did not occur; therefore Y must have occurred?  In terms of pure propositional logic and its internal system of validity, one can conclude that certain logical constructs are on their face invalid and contain fallacies.

This was one of Wittgenstein’s points concerning human language games:  the very self-contained artifice of the universe of meaning possesses no reflective correspondence to the physical world; and, in today’s parallel universe of the Internet, Facebook, Twitter, emails, etc., the technological artifice which encapsulates so much of our lives only serves to exponentially magnify such lack of corresponding significance.

In making legal arguments in a Federal Disability Retirement application, whether under FERS or CSRS, it is often important to understand the context within which the legal argument is being made.  One never knows whether, and to what extent, any particular legal argument is effective; and sometimes all that can be made is the pretext of the argument, and to leave the substantive impact for future application.

For example, does the fact that a person has received a “proposed removal” have the same impact as one who has in fact been removed for his or her medical inability to perform one’s job?  Or, similarly, does a person who receives a VA rating determination of “unemployability” have the same impact as one who is allocated with a 90% disability rating, arrived at through various lesser ratings and combinations thereof?

The effectiveness of any argument will depend upon the level of persuasion employed; the level of persuasion will be contingent upon the validity of the sequential connections of often independent logical statements; and the force of a conclusion will be determined by the strength of its weakest link.  If an argument of negation must be employed, take care to do so by linking it to an undeniable fact.

Sincerely, Robert R. McGill, Esquire

Disability Retirement for Federal Government Employees: Someone Else’s Argument

Have you ever sat with company at a dinner table, and engaged in a conversation where it appears as if you are continuing someone else’s conversation?  Or your presence is merely a substitute for an extension of a previous debate or discussion?  Where a topic is brought up, and immediately a barrage of critical attacks — of arguments you have never made, and of statements you don’t recall disseminating (and where this is only 5 minutes into the salad and you’ve barely tasted the first glass of wine)?

The problem with unfinished business is that the transference of what one wanted to say is normally unloaded upon the wrong subject.  Conversations, debates, forums of intellectual exercises in linguistic battles — it is a rare person who has been able to convey the full force of one’s collective thoughts and beliefs on the matter, and it is more often the case that one leaves with the regretful remorse of, “I wish I had brought that point up…”  But rarely do second chances present themselves in a satisfactory follow-up forum; unless you are the unfortunate object for an unexpected dinner invitation.

In responding to a denial of a Federal Disability Retirement application with the U.S. Office of Personnel Management, whether under FERS or CSRS, the applicant — through his or her Federal Disability Retirement attorney — needs to understand that the person who issues the denial will not be the same person who will review any additional submissions or legal arguments at the Reconsideration Stage.

It will be reviewed, in legal parlance, de novo.  As such, while the basis of the denial as issued by the Caseworker at OPM at the First Level should be taken into consideration, one should approach the case in light of the following question: To what extent will the Reconsideration Branch care as to the original basis of the denial of the first caseworker?  If it is being reviewed de novo, the approach should be to go over all of the elements — and to reinforce and amend those weak points, some of which may overlap what the first caseworker pointed out, others which may not.

It may not be the best approach to argue to a dinner guest who wasn’t present at the first round of arguments; the points you are trying to make may not be heard because the bell has already rung, and the fighter in the second round has been replaced with someone upon whom you have never previously landed a punch.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Medical Disability Retirement: Ockham’s Razor

Ockham’s Razor is a principle of economy; in its various forms and historically evolved attributes, the formulation of lex parsimoniae involves the idea that, where there are multiple competing theories and paradigms in explaining a phenomena, issue, or working hypothesis, one should always choose the least complex delineation — the reason being, superfluous and extraneous material generally lead to complications which rarely add to the foundational essence of the paradigm.  To put it in an alternate form:  Keep it simple.

Thus, 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 always important to follow the principle underlying Ockham’s Razor:  Keep to the core and essence of the case; focus upon the nexus between one’s positional duties and the medical condition which one suffers from; weave a consistent theme; check for inconsistencies; and always maintain the simplicity of the case, while avoiding and disregarding extraneous factual issues which, while they may be personally of importance or of special aggravation, should be left out because they unnecessarily complicate matters.

FERS & CSRS Disability retirement and the obtaining of an approval is the goal to focus upon; all else should fall by the wayside, cut loose by the sharp blade of Ockham’s razor.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Medical Disability Retirement: “What If” Scenarios

The problem with “what if” scenarios is that they rely upon fear.  What if I file for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, and the agency then removes me?  What if I file for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, and OWCP decides to send me to a Second-Opinion doctor and begins the process of trying to get me off of their rolls?

Fear and the anticipation of unknown future events is often the trigger-mechanism to prevent a person from acting.  The fallacy of making decisions based upon such fear factors, however, is an obvious one:  The agency can begin the process of removal with or without the Federal or Postal employee filing for Federal Disability Retirement (because of one’s medical conditions, his or her attendance, overuse of sick leave, less than full performance of duties, etc., is normally quite obvious to the agency already, anyway); OWCP can send the Federal or Postal employee to a second-opinion doctor or cut off benefits arbitrarily with or without the Federal employee filing for Federal Disability Retirement benefits; and in general terms, “what if” scenarios can occur even if the event in question is never pursued.

Fear is the factor which bullies, totalitarian regimes, and Federal agencies and the U.S. Postal Service relies upon.  Filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management is merely the great equalizer against the fear factor.  That which can happen regardless of a triggering event, will occur anyway; so the logical conclusion should be to decide to file for Federal or Postal Disability Retirement benefits in order to acquire the “safety-net” against the future possibility (and probability) of adverse actions which the Agency is already likely contemplating.

Sincerely,

Robert R. McGill, Esquire

Federal Disability Retirement: Approaching the Entrance to OPM’s Thought Process

The attempt to predict an opponent’s approach in an endeavor — whether in competitive sports; in debate; in an adversarial forum — is a practice which can have favorable results, or one which ends with disastrous consequences.  For the prediction itself must be based upon known factors, such as the applicable standards which the opponent will rely upon, relevant elements which will be utilized, and human, unpredictable quirks which seem to always come into play.

In approaching an opponent, it is always a good idea to study the opposition; but too much reliance upon attempting to out-maneuver the opposition can have the negative impact of taking away from valuable preparation-time one may need in order to prevail.

In preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, many Federal and Postal applicants attempt to analyze the questions posed on the Standard Forms (SF 3107 series for FERS employees; SF 2801 series for CSRS employees; SF 3112 series for both FERS & CSRS employees) perhaps too deeply, in attempting to “understand” the opponent — the U.S. Office of Personnel Management.

Yes, the questions must be analyzed; yes, there is an implicit trickiness to many of the questions (especially on SF 3112A); and, yes, a cautious approach must be taken in answering the questions.  But such caution should never detract from spending the necessary time in preparing the crux and foundation of one’s Federal Disability Retirement application — that of formulating the logical nexus between one’s medical condition and the positional duties which one can no longer perform.

Ultimately, the substance of one’s Federal Disability Retirement application must be given the greatest of focus and effort:  attempting to approach the opponent’s thought processes — in this case, that of the “collective” efforts of multiple individuals at the U.S. Office of Personnel Management — may be an act of futility; better to spend the needed hours solidifying one’s own case than to try and understand an incomprehensible entity.

Sincerely,

Robert R. McGill, Esquire

Medical Retirement (for US Federal Employees): Administering Treatment versus Administrative Functions

Doctors rarely have any problems with administering treatment based upon clinical encounters and subjective narratives from their patients; yet, when it comes to providing a medical report and performing similar administrative functions, the sudden pause, hesitation, and sometimes outright refusal, is rather puzzling, if not disconcerting.

Such trepidation from the doctor can obviously result in a difficult wall for purposes of preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS.

For, much of medical evaluation, diagnosis, prognosis and prescribing of treatment encompasses receipt of subjective responses from the patient:  where the pain is present; the nature and extent of the pain; the history and chronicity of manifested symptoms; even functional capacity evaluations must necessarily be an observation of the subjective actions & reactions of the participant.  Of course, there are often distinguishable “objective” factors — swelling; carcinogenic versus benign tumors; broken bones, etc.

On the other hand, even MRIs and other diagnostic tools reveal only that X exists — not that X results in symptom Y.  An example would be a bulging disc — while the abnormality itself may show up on an MRI, whether the individual experiences any pain from the abnormality may differ from subject to subject.

This is why, despite the willingness of a doctor to treat based upon most factors being “subjective” in nature, it becomes a puzzle why the same doctor shows an unwillingness to write a report stating that, because of the medical conditions for which patient M is being treated, one must necessarily conclude that he or she cannot perform essential elements X, Y and Z of his or her job.

It is the jump from treatment-to-disability-determination which is often problematic for the treating doctor.  All of a sudden, the excuses flow:  “I am not trained to make such determinations”; “There is no objective basis for your pain” (then why have you been treating me for over a decade and prescribing high levels of narcotic pain medications?); “I can’t say whether you can or cannot do your job”; and many other excuses.

The switch from administering treatment, to treating administrative matters, is one fraught with potential obstacles.  How one approaches the treating doctor will often determine whether such obstacles can be overcome — and whether one’s Federal Disability Retirement application can be successfully formulated.

Sincerely,

Robert R. McGill, Esquire