Daily Archives: November 11, 2022

FERS Medical Retirement: Veterans Day 2022

It is a day — A National Holiday — honoring all veterans of the United States Armed Forces, as well as those killed in this country’s wars throughout the years.   Its origins are based upon the first anniversary of the 1918 armistice which resulted in the cessation of hostilities in WWI — that “Great War” that was meant to end all wars.   Any reading of history should have taught a lesson to all — of the horrors of war and the trauma upon a country for at least a generation.  It is well that we all have short memories, lest those memories would remind us and prompt us to pause before embarking into another war.

For those who have served and still serve today, Veterans Day is a special day set aside to celebrate, to remember, to honor.  This last word — “honor” — has become an outdated, almost foreign concept these days.  To honor is to serve, and to be honored is to have served.  It is to esteem and show respect.  Very little of that concept seems to have survived in recent years.

A recent WSJ Editorial pointed out that less than 25% of Americans ages 18 – 25 are even eligible for serving in the Armed Forces, either because of obesity or having a criminal history.  That is a sad commentary on the state of our population and what it portends for the future defense of this country.   Regardless — for this special day of November 11, 2022, let’s take the time to honor all veterans, whether with a salute, a “hoop-and-hurrah”, or raising a cold glass of beer for a fellow veteran in honor of his or her service.

Sincerely,

Robert R. McGill
Lawyer exclusively representing Federal and Postal employees to secure their Federal Disability Retirement benefits under FERS from the U.S. Office of Personnel Management.

 

FERS Disability Law: The MSPB and Consistency of Argumentation

Is it even important, anymore?  Lawyers, of course, are notorious for making alternate arguments, presenting to a Judge or a Jury different explanations, alternative legal theories and justifications, often within the span of a single sentence, and even sometimes contradicting each other.

It is only when the contradiction occurs within the confines of a single theory that the Judge may say, “Wait, counsel — hoooooold on there!  Are you trying to argue X and Not-X at the same time?”  The answer by the clever lawyer: “No, your honor, I am merely pointing out that X could be, and Not-X is also credible, leaving my client to appear not only as an innocent bystander but, moreover, a not-guilty one as well!”

In some forums, that may hold; but in a Federal Disability Retirement case, the only way that inconsistency of argumentation works is when an OPM Medical Specialist says so.  OPM denies cases systematically without any regard to consistency of argumentation.  This is because there is no accountability at the U.S. Office of Personnel Management.  They can review a case, deny it, and it is out of the hands of the Medical Specialist who made the decision.

Then, at the Reconsideration Stage, a completely different Medical Specialist will make a brand new determination, based upon his or her own perspective and viewpoint, and it need not have any consistency of argumentation with the previous decision.

Fortunately, however, when it goes before an Administrative Judge at the U.S. Merit Systems Protection Board, Consistency of Argumentation becomes an important factor.  For, that is one of the primary basis upon which an MSPB Federal Disability Retirement case is lost — when consistency of argumentation based upon the evidence becomes questionable.

Inconsistency is the downfall of most cases at the MSPB; consistency — even with less than adequate evidence of a compelling nature — will often overcome much, and win the case.  The one thing that Administrative Law Judges at the MSPB dislike above all else: Inconsistency in testimony, Inconsistency in evidence, and Inconsistency in the closing argument of an attorney.

Sincerely,

Robert R. McGill
Lawyer exclusively representing Federal and Postal employees to secure their Federal Disability Retirement benefits under FERS from the U.S. Office of Personnel Management.