FERS & CSRS Disability Retirement for Federal and USPS Workers: Communication Skills

The ability to communicate involves a complex process:  the capacity to identify and understand what needs to be communicated and for what purpose; retrieval of information and tools of communication from one’s storehouse and warehouse of knowledge; the proper choices to be made in gathering not only the substance of thoughts to be conveyed, but the sequence in which to purvey; editing and last minute self-censorship, as well as its corollary, embellishment of thought, in order to effectively delineate the verbal or written response; and all in an instant of a neurocognitive response.

Mishaps occur; wrong choices of words and combinations of conceptual constructs often become verbalized; and while retractions, apologies and declarations of regret can somewhat ameliorate such blunders, there is often the suspicion that what was stated was and continues to be the true intention and thoughts of the individual who spoke or conveyed them.

For Federal and Postal employees who are considering preparing a Federal Disability Retirement application through the U.S. Office of Personnel Management, whether under FERS or CSRS, the potential consequences of conveying the wrong thought, information or conceptual construct can result in a denial of a Federal Disability Retirement application.  That is why it is often necessary to hire an attorney experienced in identifying the proper methodology of information to be conveyed and delineated.

Real life consequences can result from a bureaucratic process such as Federal Disability Retirement.  Unlike family gatherings where mere words are spoken, an application for Federal Disability Retirement benefits cannot be repaired with a simple statement of apology; for, that which leaves the mouth or the written pen, is often the sword which slays the beast.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Workers: The Legal Responses

There is of course the old adage that “good fences make good neighbors“.  It is meant to magnify the importance of demarcations, and how societal mores, rules, and accepted dictates of common etiquette provide for social boundaries without which the breakdown of common decency occurs.

Fences and boundaries not only contain; they provide markings which restrain others.  The white powder placed on a football field; the painted lines on a basketball court; the pitcher’s mound from which the pitcher must throw the ball; these are all accepted boundaries — symbols of containment as well as of restraining devices to the “others”.

In a Federal Disability Retirement application to the U.S. Office of Personnel Management, whether under FERS or CSRS, imagine what the outcome would be for the Federal or Postal Worker if all that existed were the originating statutes governing the criteria for a Federal Disability Retirement application.  Imagine a world in which OPM was the sole arbiter of its own statutes — of having the right to interpret the dictates of its own mandates.

Look at the recent case of Stephenson v. OPM, in which OPM interpreted the statutes of another agency (the Social Security Administration) and decided that an offset of SSDI benefits against a FERS Disability annuity could still be perpetrated even though no actual receipt of funds was received.

Laws are like fences and boundaries; they are to be used both as a shield, as well as a sword.  Use of legal arguments not only restrains a Federal Agency from acting and stepping out “too far”; they can also be used to attack and force a retreat.  But remember that, just as the fence-building should be left to the carpenter, so the sword should be used by a warrior.  In today’s parlance, don’t think that anyone and everyone can be a courtroom lawyer.

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

OPM Disability Retirement: Pre-Conditional Preparatory Steps

In preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether a Federal or Postal employee is under FERS or CSRS, there are steps to be taken — not only at each “stage” of the administrative process, but moreover, in the weeks and months prior to the actual formulation, compilation and submission of the Standard Forms, documentary support, writing of the Applicant’s Statement, etc.

As a “process”, one may bifurcate the necessary steps into the following:  the pre-conditional stage; the preparatory stage; the time of formulation & actualization; finally, the submission of the disability retirement packet.

In the “pre-conditional” time period, one should focus upon the single most important aspect of a Federal Disability Retirement case — that of garnering, concretizing and establishing the necessary physician-patient relationship, such that there is a clear understanding of what is required of the physician; what the physician expects of the patient; and, wherever and whenever possible, a continuing mutual respect and understanding between the doctor and the patient-applicant.

This is why the Merit Systems Protection Board has explicitly, through case after case, opined upon the preference for “treating” doctors of longstanding tenure.  For, in such a relationship of long-term doctor-patient relationships, a greater ability to assess and evaluate the capabilities and limitations of the patient’s physical, emotional and psychological capacities can best be achieved.

In every “rule”, of course, there are exceptions, and sometimes more “distant” methods of evaluations can be obtained — through OWCP doctors, referee opinions, independent examinations (indeed, one can make the argument that because it is “independent”, therefore it carries greater weight), functional capacity evaluations, etc.

For the most part, however, the cultivation of an excellent physician-patient relationship will be the key to a successful Federal Disability Retirement claim, and as such, the pre-conditional stage to the entire process should be focused upon establishing that solid foundation.

Sincerely,

Robert R. McGill, Esquire

Postal and Federal Disability Retirement: Affirmative Proof

It is a single agency — the U.S. Office of Personnel Management, and specifically the Disability, Reconsideration and Appeals Division — which makes the determination on all Federal and Postal Disability Retirement applications.

It is not the agency (although the agency can provide some nominal assistance on some peripheral issues); it is not the U.S. Postal Service; it is not the Human Resources Department of the agency (the personnel of whom will often claim that they have processed “thousands” of such submissions and never had one rejected); and it is certainly not the H.R. Shared Services office of the U.S. Postal Service in Greensboro, N.C. — these are not the Federal or Postal entities which make a determination upon a Federal Disability Retirement application under FERS or CSRS.

In preparing, formulating and filing for Federal Disability Retirement benefits under either FERS or CSRS, it is the affirmative duty of the applicant — the Federal worker employed by a Federal agency; or the U.S. Postal Worker — who must prepare the case, formulate the content of the proof and arguments to be used; and ultimately file the case, either through the agency if the Federal or Postal employee is still employed or any separation from Federal or Postal Service has been less than thirty one (31) days; or, if the Federal or Postal worker has been separated from Federal Service for more than thirty one (31) days, then to file it directly with the U.S. Office of Personnel Management, and to do so within one (1) year of being separated from Federal Service.

The proof to submit must be affirmative — meaning, thereby, that it addresses each of the legal criteria necessary to be found “eligible” for Federal Disability Retirement benefits.  You cannot rely upon the agency, third parties or other entities to do this; it must be done by the particular “you”, or if the referential point is reversed, by the “I”, as in the Federal or Postal employee.

Sincerely,

Robert R. McGill, Esquire

Medical Retirement Benefits for US Government employees: Consistency

Consistency, in addition to coherence, is an important element which must always be recognized and reviewed in filing an application for Federal Disability Retirement under FERS or CSRS.  Coherence of an application has to do with the element of “fitting all the pieces” together so that everything coheres in a rational, logical, and often sequential manner.  Coherence often has more to do with form, than with substance.  Consistency has to do with the substantive issues — the actually claims and statements made by a doctor; the opinions rendered in relation to the knowledge obtained; and whether everything “agrees” with everything else, in the very substance of the statements and claims made.

Inconsistencies are precisely what the Office of Personnel Management aggressively searches for, in determining the validity of a Federal Disability Retirement application.  Coherence can often be ignored; indeed, in many Federal Disability Retirement applications filed without an OPM Disability Attorney at the First Stage of the process, I have often found that, when it has been denied and people come to me at the Second, Reconsideration Stage, that the application prepared by the applicant is almost entirely incoherent.

The narrative prepared is often illogical; the doctor’s report often takes a “shotgun” approach, without the coherence of a methodology of addressing the essential issues which OPM is looking for.  Either by form or by substance, it is always better to have problems with form, rather than substance.  But if you ask me, it would be “best” (good, better, best) if both form and substance are carefully prepared — meaning, that a Federal Disability Retirement application is both coherent and consistent.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Communication

Communication is the key to all avenues of success.  It is important to communicate to the Office of Personnel Management the primary diagnoses, the significant symptoms; the extent of treatment modalities; the essential elements of one’s job, etc.  Communication can become ineffective, however, if too many insignificant and peripheral facts and information are conveyed.  If an OPM representative finds that there are too many generalities and fluff, the effectiveness of the essential medical condition may be lost in the vast volume of information. 

Further, it is important that the client and the attorney communicate; for it is the attorney who stands in the place of the Applicant, in conveying the important and essential information to the Office of Personnel Management, or to an Administrative Judge at the Merit Systems Protection Board.  Thus, if an individual is removed from an agency, that is critical and vital information which must be immediately conveyed to the Attorney, so that the attorney can make the decision, in consultation with the client, as to what to do with the information.  Communication is the key to success in every endeavor, and getting a Federal Disability Retirement application approved requires the utmost of communication.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Knowledge

It has often been noted that “knowledge is power”, which necessarily and logically implies, of course, that lack of knowledge leaves one with weakness.  Preparing a Federal Disability retirement application under FERS or CSRS requires a vast amount of knowledge.

After practicing in this area of law for over twenty (20) years (with my first 10 years involving not only Federal Disability Retirement law, but also including a heavy trial practice, appellate practice and employment law and general practice — with the last 10 years devoted exclusively to disability retirement law), the consistent and persistent need to keep updated on any changes; on case-law updates; on nuances of cases which I may have previously missed — one might think that the practice of law in a specialized field might get easier over the years.

I find that, to remain on top of the constant changes and shifts in the law is an ever-present, all-encompassing endeavor.  One cannot, and must not, put a “generic” case before a Merit Systems Protection Board Judge.  To do so becomes transparent and phony.  The same goes with submitting a generic application to the Office of Personnel Management.  There is no such thing — all Federal Disability Retirement applications must be tailored to fit the individual, and knowledge — and more importantly, greater knowledge — allows for such tailoring.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Argument by Analogy

Attorneys argue “by analogy” all of the time; cases and decisions from the Merit Systems Protection Board, and language from the Federal Circuit Court of Appeals, provide the fertile fodder for such argumentation.  Thus, such issues as to whether the Bruner Presumption should apply in the case; whether a case is similar to previously-decided Federal Disability Retirement cases; the similarity of fact-scenarios and legal applications — they are all open to argument by analogy.  That is why case-citations are important — even in arguing a Federal Disability Retirement case to the Office of Personnel Management.  Whether and how much influence such legal argumentation can have at the first two stages of the disability retirement application process, may be open to dispute; but cases should never be compiled and prepared for the first or second stage alone; all disability retirement applications should be prepared “as if” it will be denied and will be presented on appeal to the Merit Systems Protection Board.  Such careful preparation serves two (2) purposes:  First, for the Office of Personnel Management, to let them know that if they deny it and it goes on appeal to the Merit Systems Protection Board, they will have to answer to the scrutiny of the Administrative Law Judge; and Second, for the Administrative Law Judge at the Merit Systems Protection Board, to let him or her know that you did indeed prepare the case well, and that your particular Federal Disability Retirement application conforms to the law, and should therefore be approved.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement: What It Means to Have the “Burden of Proof”

Remember that the applicant who is requesting disability retirement benefits from the Office of Personnel Management always has the burden of proving, by a preponderance of the evidence, that he or she is entitled and eligible for disability retirement benefits.  Even if the Agency proposes and effectuates a removal based upon one’s medical inability to perform the essential elements of one’s job (thereby invoking the “Bruner Presumption”); nevertheless, the burden of persuasion always remains with the applicant.

Never assume anything; yes, the Bruner Presumption is nice to have, but don’t ever rely upon it to have your disability retirement benefits handed to you, because it won’t be.  The Bruner Presumption “can be rebutted if adequate evidence is identified in the record to establish that the appellant actually is not entitled to disability retirement; even with the rebuttable presumption, the appellant retains the burden of persuasion at all times to establish his entitlement to disability retirement” (See Morton v. Office of Personnel Management, 88 M.S.P.R. 691 (2001). Remember:  you always have the burden to prove your entitlement to disability retirement benefits; you must prove it; you must work tirelessly to show it.

Sincerely,

Robert R. McGill, Esquire