Federal Disability Retirement Lawyer blog: Meeting the Legal Criteria

Lawyers often speak about “the law” as if it has the character of a science — of established principles which are objective, without the arbitrary influences of subjective interpretive devices or nuances. But even science itself fails any pure test of universal unalterability; one need only read Kuhn’s description of shifting paradigms in the history of science (The Structure of Scientific Revolutions) to understand that objectivity is merely another word for pragmatism. For, that which “works” or is “effective” in the eyes of the greatest number of people, is what matters to most people. That is why success is an irreplaceable harbinger of general opinion.

In the Federal government, one would like to expect application of rules, regulations, etc., somewhat in an algorithmic form, where favoritism is lacking, and where everyone has a “clean shot” at everything.

Especially when it comes to a benefit such as Federal Disability Retirement, which impacts those who are most unfortunate — one beset with a medical condition such that one can no longer perform all of the essential elements of one’s job — an expectation that an objective criteria which can be met by pure factual presentation, legal magnification of relevant statutes and laws, and perhaps some modicum of argumentation for persuasion, is what should occur in a perfect world. But as the proverbial perfect world fails to materialize, we must do with what we are given; subjective interpretation, and selective analysis are merely human frailties and imperfections.

That is why legal argumentation and countering of subjectivism must be employed.

Federal Disability Retirement, whether for FERS or CSRS employees of the Federal government, must be fought for, and “won”; there is no mathematical algorithm of objective application; there is no parallel universe of perfection; there is only the human condition, which requires interpretation, knowledge, analysis, and argumentation which persuades and cajoles.

Sincerely,

Robert R. McGill, Esquire

Medical Retirement for Federal Workers: Rationality Still Exists

One may well disagrees with the U.S. Office of Personnel Management on its decision to deny a Federal Disability Retirement application, and yet find a rational basis for its denial.  Indeed, the fact that OPM may offer some rationality to its denial, does not mean that they are correct in their decision.  Often, there is a misunderstanding as to what “rational” behavior consists of.

On a recent Sunday morning talk show, a couple of political pundits were proposing the idea that certain hard-line regimes were not acting “rationally”.  The problem with such an analysis is that one assumes that if an individual or a country fails to act within certain universally-accepted normative behavior, that such actions constitute “irrational” conduct.  That is simply not true.

First of all, rationality — which finds its foundation in logic, whether propositional or syllogistic — depends upon the major and minor premises advanced.  Thus, if the major premise entails a person or country that cares for the welfare of his neighbor or its citizenry, then the logical conclusion may well be one which encapsulates rationality — of acting to protect its people, to safeguard human rights, etc.  On the other hand, if the major premise begins with the primary assertion of retaining authority and absolute power, then the conclusion would involve shooting or massacring its countrymen.  The latter logical trail is no less “rational” than the former. Such a mistake in defining and understanding the concept of “rationality” is often found in all areas of life.

Thus, in preparing, formulating and filing for Federal Disability Retirement benefits, whether under FERS or CSRS, the fact that there has been evidence of “irrational” behavior on the part of those parties involved in the administrative process, should not result in a conclusion that the process is “arbitrary” or dependent upon some non-legal criteria.

Ultimately, all human endeavors embrace some semblance of rationality.  While one may disagree with the analytical thought-processes of the U.S. Office of Personnel Management, which often strays far beyond what the law requires and allows for, nevertheless, one can recognize the rational analytical procedures used in every denial of a Federal Disability Retirement application, whether under FERS or CSRS — albeit, one in which radical jumps from premise-to-conclusion with gaping chasms of generous implications may have to be provided, in order to be able to say that such argumentation incorporated a rational basis of explanatory analysis.

Sincerely,

Robert R. McGill, Esquire

FERS Disability Retirement for Federal and USPS Workers: Selective Reality

The problem with an unrepresented Federal or Postal employee who files for Federal Disability Retirement benefits from the Office of Personnel Management, is that because this is the one and only encounter with OPM, any response from them will be a narrow, one-dimensional perspective.

Thus, if the Office of Personnel Management denies the Federal or Postal disability retirement application, such a denial, the manner in which it is written, the content, the apparent delineation of “the law”, and the loosely-stated declarative statement while vaguely referring to the insufficiency of one’s medical documentation, will result in a narrow perspective, in a vacuum of reality created by OPM.

OPM’s denial letters are notorious for its selective reality.  Such selective reality will completely ignore all medical statements which seem to support the OPM disability retirement application, while selectively focusing upon every tidbit of medical notations which favor the denial.

Thus, be careful if on any given day, you arrive at the doctor’s office and the doctor asks you how you are feeling, and you respond with, “I’m feeling pretty good, today.”  Such a conversational statement may nullify the fact that, in its proper context, what the reality of your statement meant to convey was:  “I’m feeling better today in comparison with yesterday and the entire month before, but in no way could I perform my job even today.”  But OPM will selectively pick upon that one statement, and run with it — to a complete and total basis in denying your Federal Disability Retirement application under FERS or CSRS.

Sincerely,

Robert R. McGill, Esquire

Federal and Postal Disability Retirement: The Strategy of Disheartening the Opposition

When Federal and Postal employees who have filed for Federal Disability Retirement benefits under FERS or CSRS, and have been denied at the initial stage of the process, many are sincerely disheartened.

In my initial contact with the denied applicant, there are multiple levels of reactions, including:  the denial letter points to legal criteria which they were unaware of; it refers to doctors notations which are taken completely out of context; they have completely ignored major portions of what the doctor has stated; OPM points to legal criteria which has been met, but which OPM simply denies that it has been met.

What can be done?  This is the strategy of disheartening the opposition.

In other denials, it is simply a matter of referring to a doctor’s report here, and to a medical notation there; then to simply declare:  You have not submitted sufficient medical documentation and fail to meet the legal criteria to be eligible for Federal Disability Retirement benefits.  What can be done?  No explanation; just scant references, then a unilateral declaration.  Again, this is the strategy of disheartening the opposition.  What to do?  Don’t get disheartened.  Respond.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement for Federal and Postal Employees: Causality

Hume’s exposition on causality is both interesting and instructive in terms of looking at the validity of an argument.  In this instance, we are obviously making an analogy with how the Office of Personnel Management, and to a larger degree, people in general who make a causal argument and declare that it is a ‘valid’ argument.  David Hume’s argument on causality essentially states that there is nothing in the world other than two independent events (which we merely deem as ’cause’ and ‘effect’), which we repetitively witness.  However, because there is no ‘meta-factor’ beyond the independent events, what he terms as a ‘necessary connection’, therefore there is no certainty beyond a repetition of events.  Thus, Hume argues that we actually never see anything ‘new’ — no ‘necessary connection’ between cause and effect, in the 100th time we observe an event, any more than the first time. 

This is, indeed, analogous to how the Office of Personnel Management views rendering a denial in a Federal Disability Retirement application under FERS or CSRS. Look at the lack of logical argumentation in an OPM denial.  It is a series of independent events, delineated and categorized in some semblance of chronological order (perhaps the order that the OPM Representative read the medical documentation):  Dr X says this; Dr. Y says that; then the effect:  “The medical evidence fails to meet the criteria for eligibility for Federal Disability Retirement.”  Like Hume’s description of the world, there lacks a ‘meta-factor’.  Whether the stated causes have any connection (see the analogy?  It is like Hume’s reference to “necessary connection”) to the “effect” is entirely irrelevant.  Events do not need to justify the decision.  It is acceptable to merely refer to medical documents and then come to a conclusion, without any need to justify the validity of an argument.  But, then, that seems to be how most people in the general population formulate an argument these days — based upon how one “feels”.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement: The Problem with Answering an OPM Denial

A denial of a Federal Disability Retirement application under FERS or CSRS from the Office of Personnel Management always leaves the applicant and his or her attorney at a disadvantage.  This is because OPM is never answerable to any resulting consequence of a denial; at least, not directly.  Think about it this way:  In the initial application, if an OPM Disability Retirement application is properly prepared and submitted according to, and within the parameters of the laws governing Federal Disability Retirement, one would assume that it should be approved.  If it is denied, then the case is sent to the “Reconsideration” division of OPM — meaning, to another person. 

Now, taking it out of the hands of one OPM Representative into the hands of another, has both the good and the bad mixed together:  the good is that it will now be reviewed afresh by someone else; the bad is that the person who denied the original application has no further responsibility for the denial.  This is true, incidentally, with respect to the Reconsideration Stage of the process; if a second denial is issued, the person who issues the second denial also has no responsibility to answer for the basis given in the denial. 

The “light at the end of the tunnel“, however, comes when it is finally taken up by an Administrative Judge at the Merit Systems Protection Board.  While the AJ cannot hold anyone at OPM responsible for a denial which never should have been, at the very least, when the AJ reviews the record and finds that the previous denials were unfounded or rationally without legal foundation, an immediate recognition of a baseless denial can help the applicant.  Ultimately, rationality and legal integrity has a chance to prevail; it sometimes takes more than one bite at the apple.

Sincerely,

Robert R. McGill, Esquire

Federal and Postal Disability Retirement: OPM & the Template Approach

Starting from a template is not necessarily a bad thing.  One should not have to repetitively reinvent the wheel in any endeavor.  It is when one uses a template blindly, without carefully reviewing and evaluating the facts and circumstances of a particular case, that the problem arises. 

Each case in a Federal Disability Retirement case under FERS or CSRS is unique, not so much because a specific medical condition is unique (although, obviously, it is “unique” to the individual suffering from it); and not so much because of the type of job that a particular Federal or Postal employee works in.  Rather, the uniqueness of the particular case normally arises in the combination of the two — the symptoms manifesting from a particular medical condition, and how it impacts the ability or inability to work at a particular kind of job. That, in essence, is the core of a Federal Disability Retirement case under FERS or CSRS — the combining and clashing of the medical condition with a particular kind of Federal or Postal job, and the incompatibility between the two.  How the Office of Personnel Management reviews that combination is what is often at issue — and, because templates are generic treatments without regard to particular and unique facts and circumstances, that is precisely the reason why they fail to address the uniqueness of a particular case.  (Next:  How OPM’s template is often predictable and ultimately ineffective in a Federal Disability Retirement case)

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Service Deficiency & Medical Condition

The Office of Personnel Management will often use as a criteria of denial the argument/basis that despite the fact that an individual may have a medical condition such that the medical documentation states that the Federal or Postal worker can no longer perform one or more of the essential elements of one’s job, nevertheless, there has not been a showing that a “service deficiency” has occurred.  Often, agencies systematically write up performance appraisals without much thought or consideration; more often, Federal and Postal workers quietly suffer through his or her medical condition, and strive each day to meet the requirements of their duties. 

Whatever the reason for the lack of attention or perception on the part of the supervisor or the agency to recognize that the Federal or Postal worker has not been able to perform one or more of the essential elements of one’s job, such basis for a denial of a disability retirement application by the Office of Personnel Management is not a legitimate one, because existence of a “service deficiency” is not the whole story:  if it is found that retention in the job is “inconsistent” with the type of medical condition the Federal or Postal Worker has, then such a finding would “trump” the lack of any service deficiency.  That is not something, however, that the Office of Personnel Management is likely to tell you as they deny your disability retirement application.

Sincerely,

Robert R. McGill, Esquire