Disability Retirement for Federal Government Employees: Implications

Merely putting a ‘thus’ or ‘therefore’ does not create the necessary nexus between the facts proffered, the evidence presented and the conclusion declared; implications by definition require some work on the part of the audience, as the bridge not explicitly apparent must by necessity mandate mental connections to be drawn from otherwise disparate fields of facts.

How far can the law be stretched?  For so-called “originalists”, it is allegedly only the plain meaning of the text itself that can be gleaned, without any further “interpretation” beyond what is “originally intended”.  But lawyers go beyond the central meaning of legal opinions all the time; it is the job of a good attorney to stretch the application beyond what is originally meant or intended; and it is up to the next judge before whom such argumentation is tested to place limits and boundaries when the proposed stretch has gone a bridge too far.

How far, for example, can the “Bruner Argument” be made in a Federal Disability Retirement case?  Can the fact of a separation based upon “excessive absences” be used to demand of OPM that the Bruner Presumption should be applied, especially when parallel facts clearly establish that during the same time period of taking exhaustive Sick Leave and excessive LWOP, the Federal or Postal employee had multiple doctor’s appointments and was medically advised not to go to work?  Of course, arguments can always be made — but the real point is, Can one make an effective and persuasive argument?

For Federal employees and U.S. Postal workers who are preparing a Federal Disability Retirement application, whether under FERS, CSRS or CSRS Offset, those conclusions by implication need to be carefully crafted.  For, while you may see the bridges connecting the two or more land masses that are otherwise separated by the rivers and tributaries, it is up to the applicant in an OPM Disability Retirement case to make explicit and obvious those implications that may otherwise be lost in the administrative morass of complexities inherent in every Federal Disability Retirement case.

Sincerely,

Robert R. McGill, Esquire

 

Attorney Representation Federal Disability Retirement: Quiet

Is “quiet” the same as silence?  Or, of lack of noise?  Is it a state of mind-body consonance, where the body can remain calm and unmoving, yet the mind remains racing with thoughts, and in that state of being, do we fool ourselves to think that the outer world will not impact the inner mind?  Or, in reverse order?

Quiet is that which we strive for, in a world where din is the normalcy of life.  Can medical conditions that betray that which we strive for be understood by those who do not experience it?

Consider Tinnitus – that condition where there is a constant “sound”, whether of ringing, hissing or clanging that disrupts any consistency of a person’s striving for quiet, and this, despite everyone else in the “objective” world being quite oblivious to the “hearing” of such sounds.  Or, of the person who is deaf or progressively losing one’s acoustic acuity – can the rest of the world understand such a state of reality?

We assume, as we operate throughout the world on a daily basis, that because others appear to act in similar ways, that their inner beings and states of minds are similarly situated.  To “think alike” is to remain comfortable; and to attain “quiet” is not just to avoid the constant rush of living, but to reach a plateau where life is consistent, predictable and somewhat boring.

For Federal employees and U.S. Postal workers who experience the disquietude of a medical condition, where a combination of multiple factors come to the fore: Of a medical condition that prevents one from performing one or more of the essential elements of one’s Federal or Postal positional duties; of “noises” from one’s agency, supervisors and managers of deficiencies in performance, attendance or quota goals; of being placed upon a Performance Improvement Plan (PIP); of receiving a “warning” memorandum concerning one’s use of leave, whether Sick, Annual or LWOP; of harassment even when one has invoked FMLA rights; or of the step just prior to the last one – a proposed termination, then a termination; it may be time to prepare, formulate and file an effective Federal Disability Retirement application, to be ultimately submitted to the U.S. Office of Personnel Management, whether the Federal or Postal employee is under FERS, CSRS or CSRS Offset.

“Quiet” is not just a state of how things are in one’s home; one can lose that goal of quiet by bringing home the stresses of work’s harassment and adversarial environment, and it doesn’t have to be an actual medical condition such as Tinnitus or progressive deafness – although those may also be a qualifying basis upon which to file a Federal Disability Retirement application – but multiple other medical conditions, as well, that result in the disquiet of robbing one’s quiet.

Sincerely,

Robert R. McGill, Esquire

 

Disability Retirement under FERS & CSRS: Ordered lives

There is, first of all, chaos and disarray; and whether from a biblical worldview or the natural paradigm of a universe formed from a massive energy source that exploded with such force as to hurl a spinning residue of astronomical proportions into far galaxies that resulted in the starry heavens we witness today; it is from the opposite of a placid tranquility that we experience the ordered lives of everyday existence.

There are, of course, the extremes of the spectrum – of that person who is obsessive and compulsive about the “ordering” of one’s life, where every teacup and saucer must be placed in the cupboard within precise millimeters of one another, and no angle of a picture on a wall must be allowed to circumvent the geometric consistency with the right angles of the corners; or, by contrast, the slob who believes that pants, plants, underwear and empty pizza boxes belong in the same corner of the bedroom as expensive china and puppies who snuggle in bathroom showers.

Somewhere in between the two extremes upon the spectrum of life, exists the ordinary person of ordinary means, who wakes up each ordinary morning to go about in ordinary ways; all within the constraints of ordered lives.  All, or most of us, like, enjoy and look forward to some semblance of order in our lives.

Chaos is good for an exciting moment; monotony of discourse for the rest of the day requires that sanity mandates a certain sequence of events, and that is why dystopian stories of a universe in disarray after a nuclear war or some other disastrous consequence of political missteps left in the hands of incompetent world leaders allows for small-budget films to be successful in scaring the hell out of us all.

Divorce, death, illness and tragedies disrupt the otherwise sought-after ordering of lives left peaceful; medical conditions tend to do that, don’t they?  They interrupt the tranquility that we so seek with quiet resolve; and then the medical condition becomes a chronic state of existence, and more than just a nuisance, they interrupt our plans, our hopes, and the essence of our ordered lives.

For Federal employees and U.S. Postal workers who suffer from a medical condition, such that the medical condition prevents the Federal or Postal employee from performing one or more of the essential elements of the Federal or Postal employee’s ability and capacity to perform the essential elements of one’s Federal or Postal job, the interruption that ensues from the disruption of a medical condition, resulting in the breaking up of one’s ordered life, often comes to a point where consideration must be given to filing for Federal Disability Retirement benefits.

It is an employment benefit that is “there” for Federal and Postal employees who can no longer perform one or more of the essential elements of one’s positional duties.  And, whether under FERS, CSRS or CSRS Offset, the time to consider preparing, formulating and filing for Federal Disability Retirement benefits may come at a time when the previous state of ordered lives is sought after again, if only to reach a destination where chaos is no longer the new norm of everyday existence.

Sincerely,

Robert R. McGill, Esquire

 

Federal Employee Medical Retirement: The timeworn tale

Are there such things, or just the boorish attitudes of impatient whims?  Are adages, quips and kernels of wisdom never perceived by eyes afresh, or do tales told ever-incessantly by husbands through the course of lasting marriages, or by grandpa at each visit to the chloroform-smelling nursing homes where coughs and sputtering are interrupted by stories regurgitated between gasps filled with oxygenated rasping, merely bore us all?  Of timeworn tales – where do they come from?  When do they end?

Is there a garbage heap of stories no longer told that old men and silent women visit, and leave behind the narratives no one wants to listen to, anymore?  Is it that we no longer have the time, nor the patience, to act “as if” for the benefit of old geezers and pitiable wheezers and instead, rudely interrupt when the tale begins, by saying, “Now, now, you’ve already told that one – many times”?

Yet, a perkiness of interest, a raised eyebrow, and a playful wink to the relative across the table; and the kindness shown to the children at the table, despite the 50th or 100th time told, that we could spend the time together, take the same monotony of predictability, but turn it into an occasion of joy “just because” – just because the person telling it is worthy, and we show how much we value life’s dignity above time “wasted” by the effort we invest upon the individuals we claim to care for.

We have no time for pity; no energy left for patience; and certainly, no stamina remaining for moments beyond our pleasurable self-fulfilling wants and desires.  That is why, when a Federal or Postal employee prepares one’s Federal Disability Retirement application, with the Statement of Disability on SF 3112A, along with the evidence of supportive records and medical narratives, there is no hush of anticipation by Agency supervisors, managers or coworkers.  Yours is merely another timeworn tale that they want to quickly bypass.

But the point, of course, is to get the “Administrative Specialist” at the U.S. Office of Personnel Management – the agency that makes all decisions on a Federal Disability Retirement application – to see beyond that timeworn tale of one’s medical condition, disability, and inability to perform one or more of the essential elements of one’s job.  For, that Administrative Specialist is the “hard one” to persuade – having read thousands, and perhaps tens of thousands of such timeworn tales.  It is thus the job of an attorney who has done this many times, who possesses the power of words in the narration of a compelling tale, that often makes the subtle but necessary difference.

Sincerely,

Robert R. McGill, Esquire

 

Federal Disability Retirement: The mortality reminder

When does mortality become a concern?  Certainly, not during the youthful vigor when the future holds bright concurrent with the cellular construct yet expanding and multiplying.  Is it with the first encounter that reveals vulnerability?  And what is defined as a “healthy” sense of it, as opposed to an obsessive conduit to a dementia of nihilism?  Does a “close shave” necessarily haunt everyone, or does it matter as to the sensitivity of a soul that such karma encounters?  What “reminds” one of a future terminal, as opposed to becoming an all-consuming journey to avoid the ultimate consequence?

Whether for future promises of glorious defiance of it (Christianity and similar belief systems) or of denial of the substantive reality we face by it (Hinduism, Buddhism and similar negation-bases faiths), the treatment of how it is approached, the methodology of embracing or rejecting, and the paradigms constructed in order to answer the underlying metaphysical queries, are “projects” which Heidegger has identified as those very endeavors to avoid the inevitable.

For Federal and Postal employees who suffer from chronic, debilitating, or otherwise delimiting medical conditions, such that the medical conditions prevent the Federal or Postal employee from performing one or more of the essential elements of one’s Federal or Postal positional duties, the brush with the question of mortality becomes a reality precisely because vulnerability from the secure world one has previously taken for granted, becomes threatened with each day passing in the empirical experience of contending with the medical condition itself.

Medical conditions remind us of our mortality.  Certain and specific conditions tend to exponentially magnify it tenfold:  Post Traumatic Stress Disorder (in nightmares, intrusive memories and recalling of traumatic events); Major Depression/Depressive Disorder (by the loss of stamina and the overwhelming sense of despair); Generalized Anxiety Disorder, which may include suicidal ideations and panic attacks (via the heightened sense of intolerance to work-place stresses); and those physical conditions which result in chronic and intractable pain, from multi-level degenerative disc disease, cervicalgia, myofascial pain syndrome; Rheumatoid Arthritis, Fibromyalgia, Chronic Fatigue Syndrome, as well as the ongoing list which every attempt to become “all-inclusive” always fails to mention, precisely because there is never a single right answer to the mortality reminder.

The key is often missed because the focus is misdirected – it is not so much the medical condition itself, but the impact of that medical condition which prevents the Federal or Postal employee from performing one or more of the essential elements of one’s Federal or Postal positional duties:  that is the essence and foundation of a successful Federal Disability Retirement application.  But more importantly, it is that “nexus” which is the key to the mortality reminder, and that which prompts the Federal or Postal employee into a spur to action:  Prepare the Federal Disability Retirement application well; formulate the foundation for Federal Disability Retirement carefully; file the Federal Disability Retirement application in a timely manner.

Sincerely,

Robert R. McGill, Esquire

 

Medical Retirement for Federal Employees: The wrong target

What if you are involved in the highest levels of competitive marksmanship – say, target shooting by a rifle, or crossbow, or bow and arrow, or even by a pistol.  You shot throughout the morning, and hit the bulls eye every time; your opponents try to keep up with you, but at each level of competition, there is a slight deviation here, a centimeter there, and systematically, the competition is “eliminated”, and you are left standing at the podium of the “winner”.

As the trophy is brought out, the Chief Judge who is about to present the awards and ceremonial crown, pauses, reflects for a moment, and declares:  “Sorry, but it turns out that you were shooting at the wrong target each time.”  They then present the accolades to the “runner up”, who was shooting on the same range, aiming at each turn at the target set up in his or her respective lane of sightings, and seemed to follow the protocol as set up by the competition and the committee of judges.

You go and question the judgment of the judges, and especially address the Chief Judge, protesting:  “What do you mean?  I shot at the target that was set up.”  “But you shot at the wrong target.  Your target was the one in the lane next to you.  You shot in Lane A; you were supposed to be in Lane B”.  And you argue:  “But that is irrelevant.  Lane A is the same as Lane B, and there is no difference between the two.”  And the Chief Judge says:  “Look at your designated Card Assignment:  It states without question, ‘Assigned to Lane A’.  Yet, you shot all targets in Lane B”.  You persist in arguing:  “But what difference does it make?  It is the same target whether I am in Lane A or Lane B?”  And the kicker from the Chief Judge:  “In life, you can’t just do what you want; you have to obey the rules.”

Who is right?  Would it matter which lane one is assigned to, and whether obedience to the protocol and adherence to the “letter of the law” is followed, when the substantive point of the whole process – hitting the target – is clearly accomplished beyond the competence of all others?  We often encounter that anomaly in life – of the seeming conflict between the technicality of the issue (the “minutiae” otherwise unnoticed by the rest of the population) and the general adherence based upon common knowledge and boredom of repetitive protocol.  It may well be a trite redundancy, but when a “technicality” is involved, then a technician is the one to call.

For Federal employees and U.S. Postal workers who are considering filing for Federal Disability Retirement benefits, whether the Federal or Postal employee is under FERS, CSRS or CSRS Offset, the question of the “wrong target” and the “technical violation” of the rules is appropriate to recognize and consider:  For, in Federal Disability Retirement Law, as in many other facets of legal wrangling, making sure that the larger compass of hitting the “right” target, as well as keeping within the proper lane of technical legal issues, are both equally important in preparing, formulating and filing an effective Federal Disability Retirement application, submitted to the U.S. Office of Personnel Management.

The “wrong target” is the agency; the “right target” is the U.S. Office of Personnel Management.  The “technicalities” encompass the statutes, laws, regulations and legal opinions as rendered by the U.S. Merit Systems Protection Board and the Federal Circuit Courts on issues pertaining to Federal Disability Laws litigated as precedents.  And, who is the proper “technician” to call?  An attorney who is experienced in fighting the cause for Federal and Postal employees, to obtain Federal Disability Retirement benefits.

Sincerely,

Robert R. McGill, Esquire