Federal & Postal Disability Retirement: Inconsistency and specificity

The two legal standards dominant in a Federal Disability Retirement case must often be alternatively applied depending upon the nature of the positional duties involved.  It may be appropriate to speak in terms of “functional capacities” and specified duty restrictions when it comes to physical work that involves descriptive mechanical work — i.e., being able to lift a certain amount (for most Postal employees, up to 70 pounds); bend, lift, stand repetitively throughout the day; or even in climbing ladders, remaining balanced while working on a scaffold; utilizing power tools, etc.

For more cognitive-intensive, focus-driven administrative/executive positions that require sustained and sedentary periods of consistent application, the more generalized standard as pronounced in Henderson v. OPM may be better argued — one of inconsistency and incompatibility between the job duties as a whole because of the cognitive dysfunctioning that results from the high distractibility of pain, lethargy from Major Depressive Disorder or paralyzing panic attacks from Generalized Anxiety Disorder, etc.

Or, take the work engaged by an Air Traffic Control Specialist — there is an admixture of the “inconsistency standard” as well as “specific” elements where sustained focus and concentration is reliant upon the safety and lives of hundreds, if not thousands, of people.

The two legal standards in a Federal Disability Retirement case are not mutually exclusive, and they need not be argued so before the U.S. Office of Personnel Management and beyond, at the U.S. Merit Systems Protection Board (M.S.P.B.).

Medical conditions need to be described in a “nexus-form” to the positional demands of a Federal or Postal job, for ultimately that is what a Federal or Postal employee who is filing for Federal Disability Retirement benefits is retiring from — a position description, and not necessarily the actual job that one is working at.

The medical condition that the Federal or Postal employee is suffering from may both be inconsistent and possess descriptive specificity which require restrictions; and, conversely, it may be that certain elements of one’s Federal or Postal position description may require restrictions, leading to the conclusion that the position as a whole is inconsistent with the suffered medical conditions precisely because of the specific, 1-to-1 ratio of “essential element” to “identified medical condition.”

Thus can both standards be argued and used as a sword against OPM”s argument that “specific elements” need to be shown in each and every case, which is simply NOT the case.

Sincerely,

Robert R. McGill, Esquire

 

Federal Disability Retirement Representation: Last Days of Summer

When the urgency of a sales event about school supplies blinks prominently across television screens, and those couple of days in August arrives where a foretelling of colder weather breathes a freshness as a reminder; and when the haziness of plants wilting, the stickiness of summer’s heat has faded the memory of last year’s harsh winter — we suddenly realize that the last days of summer are upon us.

Days come and go like gnats that take a single bite and then fly on; and suddenly we can’t remember where time has disappeared to, and another gray hair has sprouted, another wrinkle has cut deep the lines of time and timeless lines of memories now vanishing like so many waves that lap upon the seashores of countless hours.  And like the last days of summer, we relish the good fortune of health and painless existence only so long as fate allows for another day of challenges left unfulfilled.

The last days of summer are like those unwanted encounters that life inevitably challenges us with: It reminds us that what was once promising may not always come to fruition, like the beginning days of summer that looked forward to a respite from the humdrum of everyday existence, only to be snatched away like an illness that debilitates.

For Federal employees and U.S. Postal workers who suffer from a medical condition, where the medical condition prevents the Federal or Postal employee from performing one or more of the essential elements of one’s Federal or Postal job, the last days of summer often represent as a metaphor the realization that one’s Federal or Postal career must come to an end.

Where the choice is between health or career, it is not much of an option presented: health must always be and remain the priority, and preparing and submitting an effective Federal Disability Retirement application, whether the Federal or Postal employee is under FERS, CSRS or CSRS Offset, is somewhat akin to the last days of summer, where the end of something is merely the foretelling of a new season beyond.

Sincerely,

Robert R. McGill, Esquire

 

OPM Disability Retirement Claims: Back to the future

The title comes, of course, from that classic 1985 movie, and depicts the idea of being able to go back to the past while yet retaining the knowledge of a future unforgotten.  Within the possibility of that paradigm, could the future be altered, or does the past that one thinks one is going back to already account for the presence of the person who goes back, and thus does the future remain within the rigidity of the unchanged past impervious to the arrogant thought that the future could be modified by the mere presence of one who goes back to the future thinking that the future could be changed?

The concept itself is a unique twist upon the creativity of human thought — not of time-travel into the future, but where the future as “now” is taken into the past, but with the retention of the “now” taken with us, thus becoming no longer a “now” but a future knowledge merely because one goes back into the past.

From whence does such an idea originate?  Is it our yearnings that begin to percolate in old age, when regrets seep beyond the borders of mere wistful thoughts and find their tug-and-pull upon our consciences?  Is it to try and make up for all the stupidity that has prevailed in the bumpy road of growing up, where mistakes made were forced upon family and friends who had the compassion and empathy to carry us through our troubled times?  Do regrets uncorrected plague our later years more than when youth betrayed the lack of character shown so brazenly when weeping mothers and shuddering fathers kept their silence during those terrible years of want and waste?

To go back to the future is but a yearning to correct mistakes left in forlorn corners of regretful memories, and for Federal and Postal employees who suffer from a medical condition such that the medical condition is beginning to prevent the Federal or Postal employee from performing one or more of the essential elements of one’s Federal or Postal job, the time is “now” to begin to prepare, formulate and file an effective Federal Disability Retirement application, to be filed with the U.S. Office of Personnel Management.

Going back to the future is not an option; the medical condition is with us now, and it is precisely the “now” which must be dealt with in order to prepare for an uncertain future.

Certainly, it would be nice to “go back” — back before our careers were impacted; back before the medical condition became chronic and intractable; and back before this mess called “life’s trials” began to prevent us from performing the essential elements of our jobs.  But it is only in the movies where the past can be corrected; in reality, going back to the future means that we must now proceed with caution to correct the mistakes and malfunctions of life in the context of today’s reality, and not yesterday’s regrets.

Sincerely,

Robert R. McGill, Esquire

 

Disability Retirement for Federal Government Employees: Authentication

There is a process and means by which it is accomplished — as in authenticating a painting or an antique piece of furniture, jewelry, etc.; of an autograph or handwritten letter (although, many will say that in the field of forensic sciences, handwritten analysis is far from reaching a vaunted level of precision or reliability); of a pet’s pedigree or even of a person’s right to have access to sensitive information, etc.

Authentication is thus a process of verification, of identifying X as being Not-Y in many instances, where exclusion by elimination of other possibilities results in the declaration of the genuineness of the person or thing declared to be so.

When applied to an object, it inspects and compares against other objects within a historical context, style, peculiar features of an artisan’s eccentricities, period-characteristics and signature features, etc.  When applied to an individual, it may take into account physical features as well (appearance; finger prints; voice matching; DNA sample, etc.), but could also encompass questions posed and answers given, and depending upon the comparison to known archives of historical background checks made against statements previously provided, deem that an “authentication” has been reached concerning the “true” identity of an individual, akin to declaring that a painting previously unverified is in fact a product of this or that “Master”, or that an antique furniture piece was the craftsmanship of some famous cabinetmaker during the Jeffersonian Renaissance period or from some pop-culture minimalist timeframe during the early Sixties, etc.

The process of “authentication”, of course, can be distinguished from whether or not an individual is living an “authentic life”, as well, and here, the meanings become somewhat muddled and divided.  One can be “authenticated” and be allowed access to sensitive banking information, be allowed to use a credit card, write a check, etc., and still live an inauthentic life (e.g., act like someone you are not, present yourself as a “family man” despite all the while committing multiple affairs; live a double or triple or even a quadruple life and deceive everyone around, etc.).

The process in reaching a conclusion as to whether a person is living an authentic or inauthentic life is somewhat different from “authenticating” a person.  For, to engage in the former analysis, it is normally done for the most part as a self-analysis (i.e., only the person who is living an inauthentic life can know for certain whether it is so or not), whereas the methodology imposed of “authenticating” a period-piece or an individual (the latter) is by applying a more objective standard of comparative review.

For the Federal or Postal employee who is suffering from a medical condition, where the medical condition begins to prevent the Federal or Postal employee from performing one or more of the essential elements of one’s Federal or Postal job, the dual issues of “authentication” and “authentic living” come to the fore, precisely because the Federal or Postal employee becomes forced into behaving in rather inauthentic ways.

Hiding the medical condition; trying desperately to work through the debilitating symptoms and maintaining an appearance of normalcy; and all the while trying to force a consistency between one’s capacity and the watchful eyes of the Federal Agency or the Postal Service — these are the elements that challenge the authenticity of one’s life.

Living an authentic life under normal circumstances is difficult enough; trying to authenticate one’s capacity to continue “as is” in the face of a progressively deteriorating medical condition makes it all the more challenging.  It may be that preparing, formulating and filing an effective Federal Disability Retirement application, to be filed with the U.S. Office of Personnel Management, whether the Federal or Postal employee is under FERS, CSRS or CSRS Offset, is the only way forward in forging an authentic pathway away from an inauthentic morass that the medical condition has forced upon you.

Sincerely,

Robert R. McGill, Esquire

 

Federal Worker Disability Retirement: The minor incident

Does history alter significance of incidents as time heals or otherwise events are forgotten?  Does the perspective of the one directly (or even indirectly) impacted make a difference upon the writing of history, or is it as some cynics have countered – that history is the written narrative of the victors, and everyone else is merely annotated as mere footnotes, if at all?

As the Great War became overshadowed by World War II, or as some historians argued that it was merely a singular war with a brief interlude between; will other wars that follow, as memories fade and the dying veterans no longer appear at parades and salute the tombs of those fallen, overshadow the epic battles fought, the bravery shown and the comrades buried beneath silent crosses of lonely nights?

The private lives that each of us live, and the minor incident that looms large within the encampments of our own minds; the designation of “minor” depends upon a perspective, does it not?

Reading history is an interesting endeavor, if only because it expands by bringing in a third-person perspective of events beyond, issues not thought of, and incidents that never took center stage.  The authors, now dead, of second and third-tier fame, who may have had a book published here or there but are now forgotten upon dusty bookshelves that librarians never notice; and most of us are merely minor incidents in the greater traffic of life’s misgivings.

For Federal employees and U.S. Postal workers who suffer from a medical condition that prevents the Federal or Postal employee from performing one or more of the essential elements of the Federal or Postal employee’s positional duties, perspectives matter.  A “minor incident” at work can become a major issue – and the medical condition one suffers from, or how the agency views the interaction between the minor incident and the natural consequences of working with a medical condition – and one’s viewpoint in contradistinction to the perspective of the agency can be important.

Whatever the issues that may come about or arise during the process, this much is clear: The Federal agency or the Postal Service has one “viewpoint” about your medical condition, and you have another.  The difference is, you have to suffer the medical condition, while the agency sits idly by and scoffs at the major event as if it is a minor incident.  That may mean that it is time to file 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.

Let the determination about whether a specific incident is minor or major be left up to the historian of tomorrow; what you, as a Federal or Postal employee must do, is to contend with the issues of today, and especially the medical condition from which you suffer, and which is far from being a minor incident.

Sincerely,

Robert R. McGill, Esquire

 

Federal Disability Retirement: Just another bystander

There are primary characters, ancillary or peripheral personalities – and just another bystander.  Similarly, in personal relationships taken from a subjective “I” viewpoint, there are “close family members” (i.e., normally identified as the core within a nuclear family), “extended family”, and then there are “friends and acquaintances” — and just pure strangers.  Of course, the Internet, Facebook and other electronic devices have somewhat changed and altered the landscape of such relational directions, but we still know what it means to generally be “just another bystander”: to be out of the proverbial “loop” and perhaps observe, but otherwise uninvolved in the lives of those around, passing by or in the midst of a crisis developing.

Thus, when an accident occurs, a tragedy unfolds or a crisis develops, there are those who are referred to as “just another bystander”.  Or, if by tragic circumstances, that “bystander” becomes a victim either by happenstance or through “collateral” damage wrought upon surrounding neighborhoods, people, etc., we may refer to that person as an “innocent bystander” – as if the imputed adjective adds something more appropriate to engender empathy or description of haphazard events by which people can be randomly hurt.

Or, if intervention or interference imposes upon a situation by events unfolding, such an identification may be referred to in the past tense, as in, “He was just another bystander when event X occurred, and then he ran into the melee and helped the victims by…” In other words, by becoming “involved”, person X absolved himself by his very actions and thereby negated his prior status as a “bystander”, innocent or not.

The fact is, most of us are bystanders for most days of our lives; we walk through neighborhoods, streets and buildings inhabited by others, where others are engaging in commerce, relationships and interaction of daily living, and others, as well, are mere bystanders as they walk past us and bypassing our subjective interludes.  We expect others to maintain that status unless otherwise needed, and we retain with comfort such status in the courteous behavior towards strangers otherwise unnecessary for further interaction.  The problem becomes when we become bystanders within the role of our own lives.

For Federal and Postal employees 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 one’s Federal or Postal job, remaining a bystander when it is necessary to become an integral part in determining your own future is often a problem of self-will.  Watching the lives of others pass by is one thing; watching your own life pass by means that you are just another bystander when being a bystander is not the appropriate role to play.

Filing a Federal Disability Retirement application, whether the Federal or Postal employee is under FERS, CSRS or CSRS Offset, is often the necessary next and proactive step in determining the future outcome of events unfolding. The medical condition you suffer from is already the “event”; what you do next will determine whether you are the primary character or a bystander – or, worse, an “innocent bystander” who then is referred to in the past tense.

Sincerely,

Robert R. McGill, Esquire

 

FERS & CSRS Disability Retirement: The Redshirt

In athletic parlance, it refers to an individual and a status, allowing for a fifth year of eligibility when the rules mandate a restriction to a four-year period.  The word itself is quite malleable, and reflects well the technicality involved in avoiding the direct letter of the language.  Being a redshirt (noun), a redshirt freshman (adjective) or redshirted in his first year (verb) reveals to us the capacity of language to jump like grammatical forms of hopscotching that amazes and intrigues; and the cautionary prelude to a wink-and-a-nod is prefaced with, “You are being too literal”.

It only proves the point, doesn’t it — of the age-old adage that rules are created with the intent of being broken; or, at least bent in order to fit?  For, once such rules were imposed in order to allow for “fairness” in collegiate sports, the “legal technicians” (i.e., lawyers) went immediately to work upon coming up with novel interpretations, strategies for avoidance, and advice to extend beyond what the limitations allowed.

“Redshirting” was one of the devised methodologies – of allowing for everything up to the critical line of demarcation:  that of playing in a game itself.  Thus, the redshirt can practice with the team throughout that entire year of eligibility, but such actions do not count; the redshirted freshman can attend classes, be a full-fledged partner in the “college life”, and yet his participation is not marked against him or her; and to be redshirted in that year of eligibility allows for growth, maturity, advancement in development – all without “using up” a year of eligibility by being sacked a hundred times during the season and becoming a shattered soul devoid of self-confidence and losing assurance of one’s talents and skills.

It is, within the athletic community of college consortiums, a brilliant strategy to deftly avoid the burden of rules; for the greater society, it reflects the essence of what is wrong, precisely because it is a deliberate attempt to avoid the literal language of the rules.  Yet, that is true of almost everything in life, is it not?

Careful study; identifying the loopholes; then initiating the strategy to maneuver around landmines and obstacles.  Is it any different than a hunting party tracking a prey, sniffing out the signs of predatory confirmation and taking in information and adapting accordingly?  Rules, regulations and laws may well be designed, initially, at least, to address a specific problem; and, out of the cauldron of an enacted statutes, comes multiple other problems and issues because of the malleability of words and imprecise linguistic pauses.

Preparing an effective Federal Disability Retirement application is no different.  It is a necessary prerequisite to identify the legal language of eligibility; define the issues; identify whether or not the Federal or Postal employee considering such an option “fits into” the legal criteria circumscribed; then to proceed to “redshirt” one’s own situation and devise a methodology for eligibility.

Compiling the evidence, formulating the proper narrative, and presenting an effective Federal Disability Retirement application, to be submitted to the U.S. Office of Personnel Management, whether the Federal or Postal employee is under FERS, CSRS or CSRS Offset, can thus be likened to the redshirting of a freshman – in order to extend one’s life beyond the debilitating medical conditions otherwise shortening the career of a promising Federal or Postal employee.

Sincerely,

Robert R. McGill, Esquire