Federal Disability Retirement: The Rarity of the “Clean” Case

“Clean” cases are those which need no further elucidation. Like events and documents which speak for themselves, the clean case in a Federal Disability Retirement application, as in other sectors of legal encounters and adversarial processes, requires little, if any, explanatory addendum.

It is a rarity for two primary reasons:  First, because life itself defies a linear, uninterrupted sequence of events which follows along the parallel universe of administrative rules and regulations, and second (and probably more importantly and certainly problematically) because most people are unable to distinguish between an objectively clean case, and one which — because of one’s personal and subjective involvement in one’s own case — merely appears to be less embroiled than others with potential problems.

The Federal or Postal Worker who is preparing one’s own Federal or Postal Disability Retirement application, is the same person who suffers from the pain or psychiatric illness which is the foundation and basis of one’s claim.  As such, because the private world of medical disability is the identical consciousness which must prepare, formulate and present one’s Federal Disability Retirement application, whether under FERS or CSRS, to the U.S. Office of Personnel Management, it is difficult to make an objective, unbiased assessment of one’s own case.

The one who “feels the pain”, believes that one’s own pain is in and of itself persuasive to others as to the extent and severity of that pain.  That is why the truly “clean” case is a rarity; it exists mostly in the minds of those who believe in their own suffering.  The rest of the world, however, has little empathy for the suffering of others, and the systematic, bureaucratic volume of denials in Federal Disability Retirement applications is a testament to the harsh reality of the world in which we occupy.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: The Non-nexus

Meeting an adequacy test may constitute sufficiency for some purposes, but not for others.  Thus, it may be enough in completing an FMLA form to have a diagnosis, along with answers to other questions on WH-380-E.  But mere identification of a medical condition via a diagnosis, along with a description of symptomatologies will not be enough to meet the sufficiency test in a Federal Disability Retirement application.

People often assume that having a medical condition in and of itself sufficiently explains the severity of one’s condition, and any implied “blank spaces” can be filled in by the mere existence of such a medical condition.  But Federal Disability Retirement, whether under FERS or CSRS, filed through, reviewed by, and approved or disapproved by the U.S. Office of Personnel Management, must be proven by a preponderance of the evidence that the medical condition itself prevents the Federal or Postal employee from performing one or more of the essential elements of one’s positional duties.

As such, the identification and description of a medical condition fails to comply with the adequacy standards in proving eligibility for Federal Disability Retirement benefits.  One must establish, through the conduit of a medical professional, the “nexus” or “connection” between one’s identified medical condition and the inability to perform one or more of the essential elements of one’s job.

The weight of the proof is upon the Federal or Postal applicant.

The foundation of such evidence begins with the identified medical condition, but in and of itself, it is a non-nexus — until it is squarely placed in the context of one’s official position and the duties required by one’s duties.  Thus, the non-nexus become the nexus-point when combined with the identification and description of one’s positional duties.

It is this realization of the step-by-step sequence of proof which constitutes adequacy and sufficiency of evidence, and one of which the Federal or Postal applicant for OPM Disability Retirement benefits must be aware.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Government Employees: The Essence of the Case

Ultimately, the “essence” of a thing is defined by a multitude of characteristics; but when a query is made as to what X “is”, as opposed to what it is “not”, the attempt to describe X is almost always rendered inadequate or deficient.  It is not enough to say that X is “not A, B or C”, for it may be equally true that Y is also not A, B or C, and yet X is not identical to Y.  

When an individual asks the unanswerable question, How does one successfully apply for Federal Disability Retirement benefits from the U.S. Office of Personnel Management? — the answer cannot be formulated by delineating a list of don’ts (although that may be helpful in a great majority of cases).  Rather, the reason why such a question is untenable, aside from being too generalized a question, is that each particular case requires a different and unique set of answers.  

Yes, there are general applicability standards which one must follow (i.e., sufficient medical documentation; knowledge of the relevant laws; an understanding of the legal concepts involved, etc.).  Yes, there are standard forms to complete (SF 3107 series FERS employees; SF 2801 series for CSRS employees; SF 3112 series for both FERS & CSRS employees) — but how they are completed, and the information provided, must be carefully formulated.  How one puts together a Federal Disability Retirement case is just as important in getting at the essence of a Federal Disability Retirement case, than trying to figure out the different components which make up a case.  

The “essence” of a thing is a sought-after jewel which has been an ongoing event throughout Western Philosophy, from Plato and Aristotle, to Heidegger and Husserl; it has only been in recent years that such a search has merely turned into a Wittgensteinian language game; and with the U.S. Office of Personnel Management, perhaps it is proper that it has become so.

Sincerely,

Robert R. McGill, Esquire

Federal Disability Retirement: The Viability of the Case

In preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, the initial question for the Federal or Postal employee who is contemplating such an endeavor — i.e., he or she is in the “preparation” state of the administrative process — is whether or not one has a “viable” case.

Viability of a Federal Disability Retirement case is based upon the supportive input of a treating doctor — whether it is one’s Primary Care Physician, Orthopaedic Specialist, Neurologist, Psychiatrist, etc. Because Federal Disability Retirement is not an entitlement, but rather a benefit which must be proven by a preponderance of the evidence, as such, one must approach the preparation and formulation of the case based upon factors pointing towards the viability of “winning”. There is never a guarantee that a Federal or Postal employee will be approved for a Federal Disability Retirement application.  Each case must be evaluated in light of the uniqueness of the facts, circumstances, and relevant positional requirements involved.

As part of any such review and analysis of a case, one must look at the extent of support one can expect from the treating doctor.  As such, a case will often require some further development; of persuasion on the part of the doctor that all reasonable modalities of treatment have been engaged in; that the condition will reasonably last for a minimum of 12 months (which can be part of the prognosis of the patient); and that it meets the legal standard in accordance with OPM, the MSPB and the statutory authorities which govern such standards — that, essentially, the medical conditions are inconsistent with the particular type of job which the Federal or Postal employee must perform.

Viability is determined by multiple factors — medical, legal, and the rational nexus between one’s medical condition and the particular kind of job one is required to perform.  It must be evaluated with a knowledge of all three — the law, the medical condition, and the unique, intimate connection to the Federal or Postal position.

Sincerely,

Robert R. McGill, Esquire

Federal Disability Retirement: Prospective Affirmation versus Retrospective Correction

Moving forward with the right tools is generally more effective than looking back and trying to correct deficiencies; thus, the age-old adage of being penny wise, pound foolish applies; and 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 make a determination early on to clearly assess the strength of a case, the needs required to optimize such strengths, and to obtain assistance where necessary.

As to an objective assessment of a case:  one is normally not the best evaluator in analyzing the strength or weakness of one’s own Federal Disability retirement case.  This is because of a self-evident principle operating in each such Federal Disability Retirement case:  the subject who suffers from the medical condition cannot objectively evaluate from a third-party’s perspective the viability of a case in terms of proving by a preponderance of the evidence the coherence and compelling nature of the evidence to be presented.

Most believe that his or her case is a “slam-dunk”; few in actual reality ever are.  To get denied by OPM at the First Stage; then at the Reconsideration Stage; then to go pro se before the Merit Systems Protection Board; then to obtain a lawyer — while it is good to get a lawyer at any stage of the process — is it wise to attempt a retrospective correction of one’s mistakes?  At what stage does it become too late?  Where in the process does “correction” override “mistakes”?  Compare that to a prospective affirmation of one’s inadequacies — that it is difficult, if not impossible, to objectively evaluate one’s own case; that an effective compilation and presentation of a Federal Disability Retirement case is necessary in order to win in a Federal Disability Retirement case; and that providing a legal citationin support of one’s case is an essential element of a compelling case:  combining it all, it would seem that being wise for the pound is preferable than being foolish for the penny (to make an inverse adage applicable).

Sincerely,

Robert R. McGill, Esquire

Postal and Federal Disability Retirement: The Easy Case

Life presents conundrums; puzzles exist to be solved, but few attempt to understand the foundational precepts which need to be discovered and applied; ergo, Aristotle remains an esoteric author of antiquity, to be rediscovered and in whom delight approaches an enduring mystery.  In every endeavor of that vast designation identified as “life”, difficulties abound, challenges confront, and obstacles confound.  One hears about the “easy” life, how X has it so “comfortable”, and the proverbial, “if only I…”

In preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, one often hears about the “easy” case — it proves itself; the evidence is so overwhelming that…

Take the following hypothetical:  X has an OWCP case approved; Second opinion and referee doctors all state that X cannot return to performing one or more of the essential elements of one’s job; additionally, SSDI has been granted; and on top of everything else, the agency has removed X from the Federal or Postal rolls, based upon one’s “Medical Inability to perform the essential elements of his/her job.”

As Federal Disability Retirement cases go, this may constitute and possess elements which most would consider a “sure thing”.  Easy case?  What is missing?  As to the first question, the answer is a resounding, “No”.  As to the second question, those who have inquired as to the “first principles” in Aristotelian fashion, will be able to discover the answer, and this author need not state thejavascript:; obvious.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Often, the Option Was Always Open

In preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, the question on Standard Form 3112A which asks for the “approximate date” of when a Federal or Postal employee became disabled from performing one or more of the essential elements of one’s job can sometimes be rather tricky.

For, quite often, it is not the medical condition itself which drives a Federal or Postal employee to file for a Federal Disability Retirement annuity; rather, it may be external circumstances entirely foreign to the medical condition itself (i.e., actions of the Supervisor, the Agency; changes in work schedules; reinstating other assignments and positional requirements, etc.).

In many cases, the fact is that the Federal or Postal worker may have been eligible to apply for, and successfully obtain, a Federal Disability Retirement annuity for several years — it is just that he or she never exercised the option or right to do so, because the Agency or the U.S. Postal Service allowed for light duty, temporary duty assignments, modified duties, etc. — in other words, a loose network of ad hoc duties aggregately termed as an “accommodation”, but clearly not what would constitute a legally-sufficient accommodation under the law and under the Bracey definition.  But the option to exercise the eligibility in a Federal Disability Retirement application may have been there for many years, and so the question on SF 3112A may actually require a response indicating many years and months prior to the completion and dating of the form itself.

The fact that a medical condition prevents one from performing one or more of the essential elements of one’s job is the qualifying factor in a Federal Disability Retirement application; when to exercise the option to obtain a Federal Disability Retirement annuity is a separate issue; and as to the latter, the compelling force may well be issues external to a medical condition.

Sincerely,

Robert R. McGill, Esquire