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: Extrapolating Carefully from “The Law”

In preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS, it is important to recognize the major legal cases (those “landmark cases”) from which many other cases derive their foundational basis.  Such cases form the fundamental and overriding criteria of a legal arena, and this is no different in arguing for Federal Disability Retirement benefits under FERS or CSRS, either for Federal or Postal employees.  Furthermore, in citing a case to argue for one’s position of eligibility and entitlement, it is equally important to have read the cases carefully, and to argue the merits of an issue persuasively and accurately.  

One of the worst things that a lay, non-lawyer applicant can do is to mis-cite a case or a statute, and its meaning and ancillary conclusions.  For, when the Office of Personnel Management reviews a case and refutes a particular issue, and further points out that a legal precedent or statutory authority has been mis-applied, one’s credibility as to the substance of the application is not only undermined, but further, the viability of one’s legal argument has been subverted.  As such, it is normally advisable to leave the law to lawyers — and in Federal Disability Retirement cases under FERS or CSRS, to leave it to lawyers who specialize in the field. For, to do little or no harm to one’s self is certainly better than to saw off the branch which one has grasped onto, no matter how tenuous the position to begin with.

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 Employee 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 OPM Disability Retirement benefits under FERS & CSRS.

Sincerely,

Robert R. McGill, Esquire

 

Disability Retirement for Federal Workers: When to file for an MSPB Hearing

Filing for Federal Disability Retirement benefits under FERS or CSRS is what is generically known as falling under “Administrative Law“.  That is, Federal and Postal employees must undergo the administrative process of filing with a Federal Agency, the Office of Personnel Management, in an attempt to prove by a preponderance of the evidence that one is eligible for, and therefore entitled to under the law, Federal Disability Retirement benefits under either the Federal Employee’s Retirement System (FERS), the Civil Service Retirement System (the “older” system, or CSRS), or its hybrid, the CSRS-Offset.

If the Agency which makes the decision on eligibility, and it denies a Federal or Postal Service employee’s application twice (both at the Initial application Stage of the process, then again at what is termed the “Reconsideration Stage” of the process), then the disability retirement case can be appealed to an Administrative legal forum specifically set up to hear such cases (as well as many other types of cases involving Federal and Postal employees).

In order to file with the Merit Systems Protection Board (the “MSPB”), one must have received a “final denial” letter from the Office of Personnel Management — and, by “final”, is merely meant the “second denial” letter.  Thus, in order for the Merit System Protection Board (MSPB) to consider an appeal for one’s Federal Disability Retirement benefits, the Federal or Postal employee must have been denied by the Office of Personnel Management on the first two tries — first, with the Initial Application, then for an appeal or the ”Reconsideration” of that application.  Only then may a Federal or Postal employee who is filing for Federal Disability Retirement benefits under FERS, CSRS or CSRS-Offset file an appeal with the MSPB.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: The Law

Technically, the law does not have to be applied at the administrative, agency-level of the Office of Personnel Management.  Let me clarify:  one likes to always think that when an applicant for Federal Disability Retirement under FERS or CSRS is filing for the benefit, that the agency which oversees the application will review it with an overarching umbrella of criteria which is governed by an objective foundation deemed as “the law”.  Thus, in a perfect world, one might imagine an efficient line of technocrats sitting in cubicles, all with a reference book containing the relevant laws governing the eligiblity criteria for Federal Disability Retirement.  But that would be in a perfect world; and since such a perfect world fails to exist, what we have is an arbitrary sprinkling of various personnel, who collectively comprise the Office of Personnel Management, some of whom apply the law well, and some of whom apply the law less than competently. 

To some extent, the arbitrary methodology applied at the agency level is counter-balanced with the threat of a review by an Administrative Judge at the Merit Systems Protection Board, followed by a Full Review at the MSPB, then to be further appealed to at the Federal Circuit Court level; but it is nevertheless sometimes disconcerting that, at the Agency level, this peculiar animal called “the law” is not uniformly applied in all cases, at all times.  And sometimes rarely.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Disability Retirement: The "Process"

In my last writing, I briefly discussed why filing for Federal Disability Retirement benefits is, and must be looked upon as, a “process” as opposed to a mere “filing” with an expectation of an “automatic” approval.  This is because there is a legal standard of proof to be met, based upon a statutory scheme which was passed by Congress, and based upon a voluminous body of “case-law” handed down by the Merit Systems Protection Board and the Federal Circuit Court of Appeals.  With this in mind, it is wise to consider that, because it is a “process” with two administrative “stages” to the process, as well as an Appeal to an Administrative Judge at the Merit Systems Protection Board, then potentially to the Full Board via a Petition for Review, and finally to the Federal Circuit Court of Appeals — as such, each “step” in the process would naturally have a different and “higher” level of the laws governing Federal Disability Retirement. 

Because of this, it is often a frustrating experience for applicants, because a rejection or denial at the First Stage of the process often reveals the utter lack of knowledge by the OPM representative of the larger compendium of case-laws that govern and dictate how disability retirement applications are to be evaluated and decided upon.  Often, the so-called “discussion” of a denial letter is poorly written, meandering in thoughtlessness, and self-contradictory and with unjustifiable selectivity of statements from a medical report or record.  Such poor writing reflects a first-level decision-making process, and can be a frustrating experience upon reading the denial letter.  It is good to keep in mind, however, that the entire application procedure is a “process”, and each level is designed to have a greater level of competency and knowledge in the law.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: The Law II

A more extensive article on the recent case of Reilly v. OPM has already appeared in FedSmith.com, because it is an important step forward in Federal Disability Retirement Law.  Decided July 15, 2009 by the United States Court of Appeals for the Federal Circuit, it topples another idol of a false standard imposed by OPM:  that medical documentation which is written by a doctor after a Federal or Postal employee is separated from Federal Service may be dismissed as being near-irrelevant in evaluating and reviewing a Federal disability retirement application. This has never made sense, since many medical conditions are progressive and degenerative in nature, and that is precisely what the Court in Reilly argues.  “The field of forensic medicine abounds with examples of subsequent medical examinations relevant to a prior condition,” the Court in Reilly argued, citing the classic example that “inferencesabout prior intoxication can be drawn from blood alcohol tests conducted at a later time.”  Further, where “proximity in time, lay testimony, or some other evidence provides the requisite link to the relevant period the subsequent evidence can be very probative of a prior disability.” Of course medical evidence gathered within the 1-year period after separation of service should be given probative value.  The Court in Reilly states that principle clearly.

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

OPM Disability Retirement: Denials

Denials received from the Office of Personnel Management are particularly difficult news to digest. It is not so much that the denial itself obviously represents “bad news” (that is difficult enough), but for the disability retirement applicant, it casts a long and foreboding shadow upon one’s financial and economic future. For, obviously, the income from the disability annuity is being relied upon; the applicant filed for Federal disability retirement benefits under FERS or CSRS based upon the assumption that it would be approved, and the future calculation of economic and financial stability was based upon the obvious assumption of an approval. Long-term plans are made based upon the assumption of approval. Further, it doesn’t help that the basis for the denial, as propounded by the Office of Personnel Management, is often confusing, self-contradictory, and without a rational basis. It is often as if the OPM representative just threw in a few names, referred to some doctor’s reports, and essentially denied it with a selective, almost pre-determined view towards denying the claim. This is unfortunate, because the Office of Personnel Management is under a mandate to make its decision based upon a careful and thorough review of the applicant’s supporting documention. However, when the denial is received, one must fight against the initial feelings of defeat and dismay; work is yet to be done, and a view towards the future must always be kept at the forefront. A time to give up is not now; it is time to fight onward, and to move forward.

Sincerely,

Robert R. McGill, Esquire