FERS & CSRS Disability Retirement for Federal and USPS Workers: Legal Tools

Few disciplines and classes of artisans create their own tools.  Musicians do not fashion their own instruments; accountants do not produce calculators or computers; painters do not manufacture their own brushes.  The blacksmith does, however, form and mold his own ironworks.

Similarly, the lawyer formulates the tools upon which he crafts his arguments; for, as most Judges are lawyers themselves, and the vast majority of legislators are also attorneys, so the statutes which are issued, and the judicial opinions which are rendered, are analogously “created” by those who are members of the class identified as “lawyers”.  Once created, it is how the tools are used which makes all the difference.

In Federal Disability Retirement law, the multiple tools available must be utilized for the very purpose of their making.  Thus, application of the Bruner Presumption must be invoked where appropriate, and “stretched” to their logical extension wherever possible; the “Trevan” rule concerning SSDI approvals should be pointed out whenever it has been approved during the process of waiting for a decision on a Federal Disability Retirement application; and the restatement of the applicable legal criteria in Henderson v. OPM should be emphasized when OPM attempts to misinterpret the applicable statutory criteria in being eligible for Federal Disability Retirement as requiring a 1-to-1 ratio between medical conditions and positional duties; and multiple other legal tools.

The issue of “where” a tool was manufactured, unless poorly constructed, is rarely one of importance or relevance; rather, it is how the tool is applied which is the issue of greater import and significance.  For it is precisely the “how” and the efficacy of the utilization of a tool which results in the intended consequences of such use.

For the blacksmith, a well-fitting horseshoe; for the accountant, a tax savings; for the artist, a masterpiece; for the lawyer, a victory.

Sincerely,

Robert R. McGill, Esquire

Federal and Postal Disability Retirement: Citing Case-Law

In preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS, it is important to provide a guiding cover letter to the Office of Personnel Management — whether termed as a “Legal Memorandum”, a “Cover Page”, or some other designation — in order to introduce a “road map” to the OPM Representative who will be reviewing the case.  

While the OPM Representative will ultimately be able to “figure out” the documents to be reviewed (i.e., the Standard Forms are obviously familiar; the medical documentation should be self-evident, etc.), there is a distinction to be made between the documentation submitted, and the persuasive effect of the documentation.  There are times, of course, when the strength of a case is so irrefutable and unrebuttable that no guidance is needed; most cases, however, require some persuasive authority.  

The best road map will cite some relevant statutory authority or judicial cases of known precedence.  If one is to cite relevant legal authority, however, it is important to do so properly.  To mis-cite a case, its relevance, or its correct interpretive impact, can do more harm than good, especially if the case proceeds to the later stages of being argued before a Merit Systems Protection Board Administrative Judge.  

Knowing what one is speaking about is the basis for credibility; credibility in making a persuasive presentation of one’s medical conditions and their impact upon one’s ability or inability to perform the essential elements of one’s job is crucial to the effectiveness of one’s case.  Citing cases properly, forcefully, and with technical appropriateness is important in presenting a road map for OPM to follow — from the point of initial introduction, to the final conclusion of agreeing that the Federal or Postal employee is indeed eligible and entitled to Federal Disability Retirement benefits under FERS or CSRS.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Medical Disability Retirement: Legal Sufficiency Test

In preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS, one is required to meet the legal sufficiency of the eligibility criteria as set forth by statute, expanded by regulations and clarified by cases which have come before Administrative Judges at the Merit Systems Protection Board.  

Whether one meets the legal sufficiency test in the presentation of medical and other supporting evidence, is the area of disputable territory, which is why the entirety of the administrative process has been put in place.  From the perspective of the Office of Personnel Management, they are mandated to review each case and make a determination as to legal sufficiency.  Often, however, they are not concerned with, ignore, or otherwise remain oblivious to, the legal standard of proof, of whether the applicable criteria has been met by a standard of “preponderance of the evidence”. Indeed, in many denial letters, they have instead indicated a much high standard of review, including whether the evidence is “compelling”, or whether the medical condition “prevents the Federal or Postal employee from coming to work altogether”.  

Unfortunately, the first two (2) stages of the process — the initial application stage, then the Reconsideration Stage — is reviewed by the Office of Personnel Management, with the potential for mis-application of the proper burden of proof.  

Legal sufficiency is not a standard which is applied until it enters into the “legal arena” — that of the Merit Systems Protection Board before an Administrative Judge.  Because of this, it is often a good idea to cite legal opinions in order to “apprise” the Office of Personnel Management of the applicable legal criteria, and to remind them of what extent of evidence meets the legal sufficiency test.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: The Simplicity of the Process

In becoming deeply involved in the morass of the bureaucratic process of preparing, formulating and filing a Federal Disability Retirement application under FERS and CSRS, it is often easy to become frustrated with the inherent complexity of the process.  

Because of the multi-faceted complexities of the administrative process (e.g., obtaining the proper format and language in a medical narrative report in order to meet the legal criteria for eligibility; creating and nexus between the essential elements of one’s position in the Federal Service with the symptomatologies of the interaction between the medical conditions and the essential elements; understanding and applying the various statutory authorities and legal precedents which have evolved over many years; of preempting — if necessary — statements by the Agency or the Supervisor; and multiple other issues to be addressed concurrently), it can be frustrating for an injured or disabled Federal or Postal employee to attempt to pull all of the intricate strings together into a singular yarn of coherency and succinct presentation of a narrative form.  

Such is the time to remind one’s self of the simplicity of the process — of the 3-part essence of a Federal Disability Retirement application which will ultimately be a paper-presentation to the Office of Personnel Management.  First, the medical narrative must be simple but concise, and must provide a proper bridge between the medical condition and why a Federal or Postal employee is unable to perform one or more of the essential elements of one’s job.  Second, one’s Applicant’s Statement of Disability must be consistent with the medical narrative reports — neither understated nor exaggerated, and guided by truth. And third, it is important to understand and apply the legal precedents, and use the law as what it is intended for — a tool for both a shield and a sword.  In life’s complexities, it is important to maintain a paradigm of simplicity.  Unfortunately, it is often the simplest forms which constitute the height of complexity.

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 and Postal Disability Retirement: Objectivity & Legal Arguments

Having written about the importance of maintaining a level of objectivity in preparing, formulating and submitting a Federal Disability Retirement application under FERS or CSRS, and further, about the necessary component of a legal argument and references to prior legal citations, it is of note that the two intersect in significant ways.  Because the law, statutes, cases, etc., are intended to apply to everyone, it is meant to be a ‘universal principle’.  Whether one agrees with the law or not is beside the point, and ultimately irrelevant.  

Further, one must make a distinction between using the law as either a shield or a sword, and for a Federal or Postal employee who is considering citing the legal precedents in filing a Federal Disability Retirement application, it is important to utilize the law, case-law and statutes as a ‘sword’ in order to persuade the Office of Personnel Management to approve your case.  

The two together — of maintaining a level of objectivity in preparing a Federal Disability Retirement application by focusing upon the medical reports & records; citing case-law and legal precedents to argue one’s case in an affirmative manner — form a powerful and compelling basis in any Federal Disability Retirement application.  The intersection between the two — objectivity and legal arguments — direct the tone, tenor, and foundation of any Federal Disability Retirement application.

Sincerely,

Robert R. McGill, Esquire