Federal & Postal Medical Retirement: The language of law

Wittgenstein recognized that there exists various forms of languages within a community of a shared language — with words everyone understood, sentences all were familiar with, but the usage and meaning of which were unique to a particular group or set of individuals.  Such comity of meanings and esoteric application of language were designated as “language games”.  Information Technology groups have their own set of insulated meanings; advertising agents, insurance companies, and children who form an exclusive club may formulate within-community code words exclusive to the group alone, and alien to all around.

What, then, is the language of law?  Certainly, analogy and hypothetical models of similar situations and transactions are a part of it; and the methodology of argumentation is to show the familiarity of classes of subject-matter issues and identical-sounding situations which penetrate the judge’s capacity to accept and anticipate precedent-setting citations of prior acts.  Why the language game of the legal arena accepts as a primary basis of interaction similar-sounding prior fact-scenarios is often a mystery to “outsiders” (i.e., non-lawyers), and confounds with frustration the enormous expenditure of time and money in engaging such circuitous narratives of persuasive argumentation.

What about my case?  What difference does it make whether or not a decades-old case applies in an analogical manner to the facts at hand?  But that is precisely the point of the language of law; for, it is consistency of application and perpetuation of stability which makes for reverence for “the law”.  Arbitrariness and malleability creates suspicion of motives, and justice requires the fair constancy of applying “the law”.

This is important to understand in all arenas of the “language game of law”, and for Federal employees and U.S. Postal workers who may need to entertain the potentiality for filing for Federal Disability Retirement benefits through the U.S. Office of Personnel Management, whether the Federal employee or U.S. Postal Worker is under FERS, CSRS or CSRS Offset, the entrance into “Administrative Law” (which is what filing for Federal Disability Retirement benefits through OPM falls under) is no different.

Precedent-setting cases develop over decades and epochs of lifetimes; and whether the OPM Disability Retirement applicant is aware of it or not, the compendium of rules, regulations and decision-setting conclusions are all guided by, constricted within, and influenced throughout, by prior cases handed down by judicial opinions rendered “on high” by administrative law judges and Federal Court of Appeals mandates.

Should case laws be cited in the submission of a Federal or Postal Disability Retirement application?  As the law is the hinge upon which society survives, so the question of persuasive argumentation may live or die based upon the vocalization of precedents.  But always remember that the language of law is a specific type of language game, and the exclusive club of legalese requires some training of usage, where applicability may sound like gobbledygook unless formulated with an ear towards coherence within the insular language game of law.

Sincerely,

Robert R. McGill, Esquire

 

Disability Retirement for Federal Workers: The Legal Argument

In preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, one must always be cognizant of the “legal aspect” of the entire bureaucratic process.  For, ultimately, FERS & CSRS is based upon a statute, which has been further expanded and delineated in regulatory explication, and additionally, evolved through judicial decisions called “case laws“.  It is the compendium and compilation of a legal framework of administrative law which comprises the entirety of eligibility and entitlement to Federal Disability Retirement benefits.

Within this context, the U.S. Office of Personnel Management must make its decision upon a review of each and every Federal Disability Retirement application.  If in any single aspect of applying the law, OPM goes counter to, or misapplies the substance of, the legal framework — whether against the originating statute; in non-compliance with the regulations; in failing to apply the clarifications mandated by case-law; then, a decision by OPM denying a Federal Disability Retirement application can be reversed based upon an error in applying the law.

Thus, the importance of making a proper legal argument in a Federal Disability Retirement application cannot be overemphasized.  As “the law” is the basis of any civilized society, so the proper application of the law ensures the fair and equitable process due to each citizen who fits within the framework of the law.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Workers: The Law

The Law is a peculiar concept:  at once, it comprises the aggregation of individual lawyers, judges, clerks; it represents the legislative branch of local, state and Federal governments; it encompasses the buildings where the concept itself is applied, argued and rendered; it is governed by the multiple statutes, regulations, court opinions, etc.

Wittgenstein’s philosophical works on language games is interesting when one views the “law” from such a perspective:  the legal systems has no corresponding anchor in the “reality” of our lives, except in the very self-contained world of our language.  We speak about “the law”, live with its consequences, discuss “rights”, “legal precedence”, “court opinions”, without ever pointing to an object in the universe (except of our own creation, such as documents, buildings, people who are involved in the law, etc.) as a corresponding feature of relevance.  But certain areas of the law have “real-world” consequences.

Indeed, in preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, the connective relevance between the law, the individual, and the medical condition contains a corresponding reality, impact and significance.  The individual who files for such a benefit, the “I” who is the Federal or Postal employee, experiences the very real medical condition; the engagement in the world, as a Federal or Postal employee, is an encounter which occurs in the reality of the day-to-day world.

For some, the “law” is not merely a conceptual construct; it is a basis for which to plan for one’s future, and maneuvering through the morass of this confusing world of reality, virtual reality, complexity of language games, and the burdensome and onerous weight of the legal maze identified as Federal Disability Retirement, requires a reality-check on a daily basis.

Reality as defined by a person who suffers a medical condition, is often more “real” than those who have never encountered the experiential suffering of such constancy of reminders, that to be alive is not merely saying the words; it is a daily struggle through the acute sensing of one’s own frailty.

Sincerely,

Robert R. McGill, Esquire

Federal and Postal Disability Retirement: The Importance of Knowing “the Law”

The old dictum that “ignorance of the law is not an excuse” for violating the law, applies just as well in a Federal Disability Retirement application — unless, of course, the entity which fails to recognize the substance of the law, its applicability, and its extended content and consequences happens to be the U.S. Office of Personnel Management.  

Let me expand somewhat.  

In order to qualify for Federal Disability Retirement benefits under either FERS or CSRS, one must prove by a preponderance of the evidence that one is entitled to the benefits.  Such proof of “preponderance of the evidence” must be in compliance with the applicable statutes, regulations, legal criteria, case-law (as handed down by the Merit Systems Protection Board decisions, as well as by the Federal Circuit Court of Appeals).  However, when the entity which constitutes itself as the intermediate arbiter of all Federal Disability Retirement applications (it is merely “intermediate”, as opposed to “final”, because there is the review process by the Merit Systems Protection Board and the Federal Circuit Court of Appeals) itself fails to apply the applicable law, there exists an inherent problem.  

OPM is designated to decide cases based upon the applicable law.  Yet, in its denials, it will often apply criteria which has absolutely no basis in “the law”.  

All the more reason why, in preparing, formulating and filing for Federal Disability Retirement benefits, it is important for the Federal or Postal worker seeking to obtain Federal Disability Retirement benefits, whether under FERS or CSRS, to know and understand the law — its substance, applicability, and consequential reverberations upon the multiple aspects of issues involved in a Federal Disability Retirement application.

Sincerely,

Robert R. McGill, Esquire

Federal Worker Disability Retirement: The Irony of Favorable Laws

In certain areas of “the law”, statutes, regulations and case-laws have developed which tend to favor the individual seeking to obtain a benefit through such laws.  For the Federal or Postal Worker who is seeking Federal Disability Retirement benefits under FERS or CSRS, one could easily argue that the laws governing the process of seeking Federal or Postal Disability benefits from the Office of Personnel Management “favor” the applicant.  

Think about it:  a Federal or Postal worker (under FERS) needs only 18 months of minimum eligibility; light duty, or modified duties, do not preclude one from obtaining Federal Disability Retirement benefits; one has up to a year after being separated from Federal Service to file for the benefit; a Federal or Postal Worker who suffers from a medical condition only has to show that it prevents one from performing one or more of the essential elements of one’s job; one does not need to show “total disability”, but only disability as to one of the critical elements of one’s job; and so on.

The irony of such “favorable” laws governing Federal Disability Retirement under FERS or CSRS is, however, that such favor often invites greater scrutiny.  Thus, the fact that the substantive laws governing a legal process may provide an advantage to the seeker, does not in any way mean that the process itself is any easier.  On the contrary, one could argue that because the substantive laws governing a legal process favor the applicant, that the process itself is made all the more difficult.  Such ironies often arise in various facets of life, and it certainly seems to be the case for Federal and Postal workers seeking to obtain Federal Disability Retirement benefits under FERS & CSRS.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: The Law

I will be writing an article of greater length on this issue, but suffice it for now that when “the law” works, it works well. A major second case has been decided in favor of the Federal employee — first, it was Vanieken-Ryals v. OPM, 508 F.3d 1034 (Fed. Cir. 2007), and now, Sylvia M. Reilly v. OPM, decided July 15, 2009. Vanieken-Ryals toppled the irrational imposition of a baseless standard by OPM — that there is a distinction to be made between “objective” as opposed to “subjective” evidence concerning medical evidence (example of the absurdity: How do you prove the existence of pain? While an MRI may show a physical condition, you cannot prove that such a physical condition equates to debilitating pain, leaving aside any quantification of pain. Similarly, how do you prove the existence of Major Depression? Anxiety? Panic attacks?).

Now, Reilly v. OPM has toppled another idol of a false standard imposed by OPM: that medical documentation which post-dates separation from Federal Service is near-irrelevant. This has never made sense, for at least 2 reasons: first, since a person is allowed to file for Federal Disability Retirement within 1 year of being separated from service, why would medical documentation dated after the separation be considered irrelevant? Second, medical conditions rarely appear suddenly. Most conditions are progressive and degenerative in nature, and indeed, that is what the Court in Reilly argues. Grant another win for the Federal employee, the law, and the process of law. It makes being a lawyer worthwhile when “the law” works.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement: The Complexity of the Simple

Federal disability retirement law, the statutes and regulations which govern eligibility; the multiple case-law opinions from Administrative Judges and Federal Circuit Judges interpreting the governing statutes and regulations; the lawyers who argue different aspects and attempt to “fine-tune” existing law (including this lawyer) — the entirety results in “making complex” that which was essentially simple.

There is an old adage that the King who declared the first law of his Kingdom was really attempting to reduce the unemployment figures by creating the need for lawyers. Indeed, “the law” is often made more complex by lawyers. However, while the multiple issues governing Federal disability retirement law under FERS & CSRS may appear, at first glance, “simple”, it is such simplicity which engenders the complex, precisely because laws which reflect a simple conceptual paradigm require extensive interpretation in order to explain the simpleness of the simplicity. That is why law itself is complex. Don’t let the complex confluse you. As you prepare a disability retirement application, recognize that it is a complex process; at the same time, make sure to explain your medical condition and how it impacts your ability to perform the essential elements of your Federal or Postal position in an easy-going, simple and straightforward manner. Don’t make it complex; keep it simple; but recognize the complexities.

Sincerely,

Robert R. McGill, Esquire