CSRS & FERS Disability Retirement: Complexity in the Hidden Background

To prove one’s eligibility for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether one is under FERS or CSRS, is seemingly an uncomplicated matter.

As one’s medical condition impacts the ability to perform one or more of the essential element of one’s job, it is up to the treating doctor to establish the nexus and provide an opinion as to the connecting bridge between the medical condition and the positional requirements of one’s Federal or Postal job.

How does one do that? Must it be comprised of a 1-to-1 ratio between job elements and medical conditions? How important and prominent are “symptoms” considered, as opposed to the mere clinical declaration of the diagnosis, in persuading the U.S. Office of Personnel Management that a particular medical condition should qualify for Federal Disability Retirement benefits? To what extent is one’s own statement of disability, as described on Standard Form 3112A, important in establishing the foothold towards gaining an approval from OPM?

Also, what algorithm or comparative analysis does OPM use in evaluating a case, and how does one enhance the chances of success at the First Stage of the process? If denied at the First Stage of the Federal Disability Retirement process, does the basis of the denial (often characterized by a plethora of multiple reasons given) require a point-by-point refutation, and is the Reconsideration Division at OPM using the same standard of review, or a different application of laws in evaluating the additional evidence submitted at the next stage?

If one watches a gymnast, a ballerina, or even a mathematician at work in solving or unraveling a complex problem or exercise, one is immediately struck by the ease with which the feat is performed. But it is almost always the unseen preparation which has preceded the actual performance that sets the stage of an uncomplicated presentation.

It is that mystery of the uncomplicated, which tends to trip us all, and that is no different in the preparation, formulation and submission of a Federal Disability Retirement application, applied through the U.S. Office of Personnel Management, whether you are under FERS or CSRS.

Sincerely,

Robert R. McGill, Esquire

Postal and Federal Disability Retirement: The Beast of Burden

The burden is undertaken by those have little choice in the matter, but who willingly submit to the responsibility and obligation.  Traditionally, the “beast of burden” (other than being a Rolling Stone song) refers to a somewhat-domesticated animal, perhaps a donkey or an ox, who must bear the weight of man’s work.

In law, the “burden” is one of proof — of the affirmative obligation to present one’s facts, persuasive argumentation based upon such facts, and the application of the relevant law which supports both the facts and the arguments.  The “other side” in the litigation has no burden at all, and can simply sit and do nothing, if he or she so chooses, and see whether or not the plaintiff, the appellant or the Federal Disability Retirement applicant has submitted sufficient proof such that he or she has met his/her burden of proof.

As the weight placed upon a beast of burden is often heavy and demanding, so in a similar vein the litigant who has the burden of proof should always expect to exceed what is “necessary” in any given case.  For the Federal or Postal employee who is filing for Federal Disability Retirement benefits through the U.S. Office of Personnel Management, whether under FERS or CSRS, it is indeed a heavy burden to bear in order to meet the legal criteria of a Federal bureaucracy who has the unmitigated power and authority to approve or deny.

The burden of proof — it is as heavy as that which we place upon a beast of burden, and the weight of such responsibility can overwhelm us, lest we have the reserve of strength to plod onward.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Medical Disability Retirement: Bureaucracy and the Objective Algorithm

On the one hand, objectivity can be viewed as a positive thing; for, with it, one is assured that all applications are treated equally, by the implementation of identical criteria across the board.  “Gut feelings”, personal beliefs, and that “sixth sense” is eliminated; and thus is fairness achieved by the equal treatment of all cases, and “exceptional circumstances” are not, and cannot be, considered.

What such an approach gains in large-scale application, however, may lose out in individual cases.  For, if experience and age accounts for anything, it should allow for decisions made outside of the mainstream of thought, based upon those very factors which make up the difference — wisdom from years of engaging in a particular endeavor.

The problem with the bureaucratization of a process is precisely that it fails to allow for exceptions; but concomitantly, it is precisely those unique circumstances which cry out for a carved-out exception.  In a Federal Disability Retirement application, submitted to the U.S. Office of Personnel Management, whether under FERS or CSRS, there are always cases where all of the facts and circumstances reveal eligibility; but in applying the mathematical (and thoughtless) algorithm of criteria-based analysis, there may be something missing.  Perhaps the doctor would not, or could not, say exactly X; or the test results revealed nothing particularly significant.

In some ways, the medical conditions identified as Fibromyalgia or Chronic Fatigue Syndrome represent such scenarios.  In those instances, it is important to descriptively convey the human narrative in a particularly poignant manner.

The administrative bureaucracy is here to remain among us; to rise above the level of thoughtless application of a criteria, however, one must creatively encourage the phoenix to rise from the ashes of boredom, and span its wings to include those others who deserve the benefits of Federal Disability Retirement.

Sincerely,

Robert R. McGill, Esquire

Postal and Federal Disability Retirement: And the Question is …

The responsive statement often given is:  Federal Disability Retirement is not a matter of merely filling out forms; if that were the case, anyone should be able to do it without an attorney.  So, as in many gameshow forums, what is the question?  Filing for regular retirement, or even early retirement, is a matter of filling out the proper and standard forms.

Filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, while submitted to the identical agency (OPM) for “processing”, is a matter of proving one’s case.  In order to prove one’s case, one must gather the substantive evidentiary documents; compile the relevant materials; make the proper “connections” and create the “nexus”; make the compelling and relevant legal arguments; and, yes, “fill out forms”. However, this latter act of filling out standard forms, as a prerequisite, while a necessary component of the entire administrative process, is not a sufficient act which constitutes a demand for an approval.

Thus, for a regular or early retirement, one may well argue that once the forms are filled out, one has satisfied both the necessary and sufficient components of what constitutes fulfillment of all obligations required for admission into the fraternity of Federal Disability Retirement annuitants.

For Federal Disability Retirement benefits, however, the additional requirement of proof by a preponderance of the evidence must first be satisfied.  And for that, one must play the gameshow format of answering the critical, million-dollar question:  What satisfies the standard of proof in order to qualify for Federal Disability Retirement benefits from OPM, whether under FERS or CSRS?  The answer:  It has already been given, only in a form of negation:  Federal Disability Retirement is not a matter of merely filling out forms.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement for Federal and USPS Workers: The Burden

Ultimately, a Federal Disability Retirement application is a paper-presentation to the U.S. Office of Personnel Management.  Yes, yes, we are entering into a “paperless” technological society, and that is fine; but by “paper presentation” is meant in a generic sense, that the proof necessary to obtain eligibility and entitlement to a Federal Disability Retirement benefit, must be presented in a format which is readable, comprehensible, and coherent — whether on a computer screen or in paper format.

The burden of providing such proof is upon the “applicant” — the Federal or Postal employee who is attempting to obtain Federal Disability Retirement benefits.  That “burden” is both a legal one, as well as a regulatory one.  There are different levels or requirements of what constitutes proof, depending upon the requirements of what must be proven.

In a general sense, one can assert that all that is necessary in a Federal Disability Retirement case is to gather together one’s medical records, wrap them in a secure bundle, and forward them to the U.S. Office of Personnel Management.  Will such an approach “prove” one’s Federal Disability Retirement application?  It might — depending upon the seriousness of one’s medical condition, and whether the Disability Retirement Specialist assigned to such a case will take the time to infer and imply.  But to make an inference, or to expect an implication to be discerned, takes an unnecessary chance at misunderstanding, failure, and the unwanted “denial”.

Instead, the better approach is to explicitly explicate.  Always remember that in preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, there is a difference between suffering from a medical condition, and proving that the medical condition prevents one from performing one or more of the essential elements of one’s job.  It is the latter which is necessary to be approved for a Federal Disability Retirement benefit.  As to the former — while an unfortunate circumstance — it is not enough to suffer to prove one’s case.

Sincerely,

Robert R. McGill, Esquire

Federal Disability Retirement: Proof

This is a proof-based process.  It is not merely a matter of completing some forms and meeting procedural guidelines in order to obtain a benefit; rather, it is an administrative process in which evidence and documentary support from third parties must be obtained in order to meet the legal criteria imposed by statute, regulation, and ever-evolving case-laws as handed down by the Administrative Judges of the U.S. Merit Systems Protection Board, as well as the U.S. Court of Appeals for the Federal Circuit.

There are administrative processes which are “entitlements”, such as certain economic assistance programs, Social Security, Medicare, etc., where one has paid into a system, and upon reaching a certain age, or meeting income-qualification criteria, etc., such procedural guidelines are merely shown, met, and approved.

In preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, however, it is not merely a matter of meeting procedural criteria (although that, too, is required), but moreover, one must prove by a preponderance of the evidence that one is eligible, by submission of substantial and adequate documentation that one cannot perform, because of a medical condition, one or more of the essential elements of one’s Federal or Postal job.

Proof is the lynchpin by which the standard of winning a Federal Disability Retirement case is won or lost.  Proof is a “must”.  As such, never consider filing for Federal Disability Retirement benefits as merely a matter of filling out paperwork; one must prove one’s case.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Medical Disability Retirement: You Still Have to Prove your Case

In preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS, many Federal and Postal employees operate under the misguided presumption that, if the Agency has acknowledged one’s medical conditions, cannot accommodate the Federal or Postal employee, and explicitly concedes that the disabled Federal or Postal employee cannot perform one or more of the essential elements of one’s job, that an approval of the Federal Disability Retirement application is nothing more than a mere formality beyond its submission.  

Thus, for example, the scenario as painted herein might include the Flight Surgeon’s determination for the Air Traffic Control Specialist who works for the FAA, who disqualifies the ATS for either his/her medical condition, or the medication regimen that he/she is taking; or it may involved the Postal Worker who is sent home pursuant to the National Reassessment Process; or it may be a Federal or Postal worker who has been administratively separated from Federal Service based upon his or her medical inability to perform the essential functions of one’s job, and thereby is entitled to the Bruner Presumption.  

All of these case-studies are “nice”; they are promising, and there is obviously substantive and useful evidence that the Federal or Postal employee is probably eligible for Federal Disability Retirement benefits — but what the Agency does or says is not enough.  The Federal or Postal employee must still meet the burden of proof and prove by a preponderance of the evidence that he or she is eligible and entitled to Federal Disability Retirement benefits under FERS or CSRS.  

The Office of Personnel Management is an independent agency, separate and apart from the other Federal Agencies or the Postal Service.  What determinations are made by the other agencies will not persuade OPM of anything; in a Federal Disability Retirement case, you must prove your case of medical eligibility, above and beyond what the Agency says or does.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Burden of Proof

In preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS, a considerable amount of effort goes into anticipating any objections which may be encountered by the Office of Personnel Management, and to “preempt” such anticipatory objections by addressing them at the outset.

A proper balance must be maintained in engaging in such preemptive accounting, because one does not want to address the issues which would unnecessarily create a “red flag”, yet at the same time, discussing and explaining reasonable areas of potential concern should be a part of any Federal Disability Retirement application.

The problems always arise because it is the Federal or Postal employee who is filing for Federal Disability Retirement benefits who has the affirmative burden of proving one’s eligibility for Federal Disability Retirement benefits.  The Federal or Postal employee must, by a preponderance of the evidence, prove his or her “burden of proof” affirmatively.

Conversely, the Office of Personnel Management has the authority to review, criticize, analyze, and ultimately approve or deny a Federal Disability Retirement application under FERS or CSRS.  They can merely sit back and take pot shots at an application, point out that this particular legal criteria was not “sufficiently met”, or simply make a generic statement that the medical evidence did not present a “compelling enough” case (what in the world could such a generalized non-statement possible mean?).

Yet, one must play the language game, and play it well, and the best way to play it is to attempt to preempt and anticipate OPM’s potential objections, and to meet one’s burden of proof by jumping ahead, and predicting how an OPM Representative might view the Federal Disability Retirement application that is being prepared.  Predicting the future is always a tenuous endeavor; nevertheless, one must engage the potential pitfalls, and anticipate the actions of the Office of Personnel Management, if one is going to be successful.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement for Federal and USPS Workers: The Process of Eligibility

The problem with possessing power is that it must be accompanied by truth, validity and rational foundations, if it is to be effective over the long term.  

In filing a Federal Disability Retirement application under FERS or CSRS, there is the process of proving one’s eligibility by meeting the burden of proof, termed as the “preponderance of the evidence“.  A disagreement can occur during the process, in that the Representative from the Office of Personnel Management can deny the Federal Disability Retirement application.  

Such a denial can occur twice at the OPM level — at the Initial Stage of the process, then at the Reconsideration Stage of the process.  OPM possesses the power to approve or deny each Federal Disability Retirement application.  Often, however, the denial itself fails to be accompanied by a rational discourse which strives to meet the high standards that a Federal Agency should always adhere to — guided by the truth and validity of any claims made in a denial letter.  Too often, the discourse which is the basis of the denial merely regurgitates a series of template-like statements, and then the OPM denies the claim.  

Fortunately, however, OPM is not the only Agency which makes the determination during the entirety of the process.  After the second denial, it then loses its jurisdiction over a case, and an appeal can be made to the Merit Systems Protection Board.  

The integrity of the entire process depends upon the independence of the MSPB in reviewing all such cases, and indeed, the Administrative Judges at the MSPB review each case carefully, with an open mind, and with the proper application of the law.  Each Judge must render a decision which contains the rational basis of a decision, based upon precedents and statutory legal underpinnings.  To have the full benefit of the process is indeed the basis of a system with integrity.

Sincerely,

Robert R. McGill, Esquire

Federal Employee Medical Retirement: Forms

In preparing, formulating & filing a Federal Disability Retirement application under FERS or CSRS, one must fill out the various “forms“:  SF 3107 with schedules A, B & C under FERS (for CSRS, SF 2801 with schedules A, B & C); as well as SF 3112 A – D.  These forms are necessary in filing a Federal Disability Retirement application (as well as some which are not listed here). Along with these Standard Forms (thus, the “SF”), one must attach supporting documentation to be eligible for Federal Disability Retirement benefits.  However, all applicants must be fully aware that the Standard Forms neither explain, nor necessarily “follow”, the expansive laws which govern Federal Disability Retirement.  

Forms are created and published by bureaucrats who are neither aware of, nor are informed about, statutes, regulations or cases which define, refine or otherwise expand upon the complex laws which govern Federal Disability Retirement law.  As such, they are the “bare bones”, skeletal requirements.  In filling out such forms, therefore, one does so without any guidance or knowledge by the mere reading of the “instructions” on the forms.  As such, one should “beware” in trying to complete any of the Standard Forms when preparing a Federal Disability Retirement application under FERS or CSRS.

Sincerely,

Robert R. McGill, Esquire