OPM Disability Retirement: The Law and Language

Language is the playground of the Attorney.  It is the heart and soul of his or her profession.  Through language, the attorney describes, delineates, argues, and provides a sequential (hopefully) rebuttal and attack upon any attempt by the “opposing” forces or the named “adversary” to undermine one’s logically structured application — in this case, an application for Federal Disability Retirement benefits under FERS or CSRS.  While logic and argumentation are the chosen methodology of attack, it is the stringing of descriptive words to create concepts; the sequencing of concepts in order to provide complex compounds of winning arguments; and the totality of language in order to convey meaning, persuade and bring about agreement. 

In Administrative Law arenas, especially in the law of Federal Disability Retirement, it is especially important to have the ability to describe, delineate, argue and persuade — because the package of persuasion is in written format — and the reader (a claims clerk at the Office of Personnel Management) does not know the disability retirement applicant personally, and only comes to know the issues, the person, the medical condition, and the intertwining compexity of the medical condition upon the person, through the words which are put together.  As such, how a Federal Disability Retirement packet is put together, which words are chosen, too few, too many, and what definitional arrows are meant to be conveyed, not only comprise part of a Federal Disability Retirement application; in many ways, it comprises the entirety of the process.

Sincerely,

Robert R. McGill, Esquire

Federal and Postal Disability Retirement: Revisiting the Concept of “Accommodations”

“Accommodation” is a legal term of art.  At least, in preparing a Federal Disability Retirement application under FERS or CSRS, it is a specific term, with specific definitions, with underlying meanings that need to be fully understood in preparing a viable and successful disability retirement application.  In very loose, non-legal terms, there is never anything wrong with an Agency Supervisor “accommodating” a good and loyal Federal employee — by allowing the person to take LWOP; of instituting liberal leave policies; of lessening the workload; of allowing for temporary light duties; of minimizing travel, restricting certain physical requirements, or reassigning certain complex projects to other employees of the Agency.  Every good supervisor does this; and, indeed, sometimes everything works out for the best, and the temporary measures undertaken by the supervisor may allow for the employee to sufficiently recover and later reaffirm all of the essential elements of the position.  But the remaining question is:  Were those measures considered an “accommodation“?  The answer is:  No.  Why not?  Because such measures do not constitute and meet the definition of “accommodation” under the laws governing Federal Disability Retirement.  They may be “good” for the Agency, but they do not preclude one from filing for Federal Disability Retirement benefits under FERS or CSRS.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Approvals & Disapprovals

Approvals of Federal Disability Retirement applications under FERS & CSRS, for an attorney who specializes exclusively in that area of law, are self-evidently a professionally satisfying bit of news.  If the OPM Disability approval occurs at the initial stage of the Federal Disability Retirement process, all the better; it means that everything was properly prepared and executed. 

Disapprovals, of course, constitute a temporary setback.  It is a disappointment.  Professionally, it means that the Office of Personnel Management found something wanting; it may not be substantive; it may be as simple as the OPM Representative being in a bad mood on a given day. At the same time, it is a challenge for the Attorney — a time to redouble one’s efforts, discern what is needed to win at the Reconsideration Stage, and win the full confidence of the client.  Winning a case only lasts for the day of the win.  Every attorney worth his or her salt wants to win every case. 

Watching the Olympics during these couple of weeks, it is interesting to see how “winning” is an inherently human desire.  But as with everything in life, it is not just winning; it is how one wins.  Watching each athlete conduct him or herself, it is interesting to observe how there are “winners for the moment”, and “winners in a greater-context-of-life”.  This is not to even discuss the “losers” — or those who believed they should have gotten a gold medal, but instead had to “settle” for silver or bronze.  How one loses at anything in life —  a sporting event, a contest, competition, or a legal case — and how one responds to the “loss”, is what is important.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: Diagnosis v. Symptoms

Is an official diagnosis important?  It certainly makes for a “clean” Federal Disability Retirement application under FERS & CSRS, and indeed, sometimes the Office of Personnel Management will question the validity of a Federal Disability Retirement application if a treating doctor equivocates on ascribing a clean, clear-cut diagnosis.

But, as they say in philosophy, and specifically in symbolic logic, while a medical diagnosis may be necessary, it is not sufficient.  That is, while a medical diagnosis is often necessary in order to easily identify the medical condition, it is not sufficient to get a Federal or Postal worker an approved Federal Disability Retirement claim.

This is because, beyond an official diagnosis of a medical condition, it is important to describe the manifestation of symptoms, and how those symptoms impact one’s ability to perform the essential elements of one’s job.  To that extent, it is analogous to the story of a primitive tribesman who feared having his picture taken, because to have one’s image captured was to circumscribe the essence of an individual.

Similarly, while a medical diagnosis identifies the “what” of a condition, it fails to show the endless “hows” of that condition — as in, how does it impact one’s job, one’s personal life, one’s sense of well-being, self-image, etc.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Snow (and More Snow)

By all accounts, the amount of snow which has hit the D.C. & surrounding metropolitan area constitutes a record amount. With 25 – 30 inches already on the ground and stretching the resources of state and local governments, there is another winter weather warning, of another 10-plus inches of snow. The Federal Government has shut down today (Monday); that means that the Office of Personnel Management, Disability Retirement Section, has been shut down. While the white blanket is certainty a picture of beauty to behold, those who have Federal Disability Retirement applications awaiting a decision, and those who will be shortly filing for Federal Disability Retirement benefits under FERS & CSRS will have further delays because of the shut-down of the Federal government.

Sincerely,

Robert R. McGill, Esquire

Federal and Postal Disability Retirement: All Things Equal

Of course, in life, all things are NOT equal.  Some cases get approved within a couple of weeks; others, seemingly for months sit on an OPM Representative’s desk, with not even a glance or a reason for the extensive delay.

As night approaches, and this area gleams with the white of snow, a virtual dreamland of snow piled feet upon feet; whether Washington, D.C. will even open this week, or enter the week with the “liberal leave” policy; and, yes, of course there is tele-commuting, but the effectiveness of that is also based upon people ultimately coming in for files, additional information, etc.

This week, all things are not equal; Washington, D.C. is frozen in time, in weather, and in a beauty of sheer whiteness; in the quietude of nightfall, only the dreams of children and the shrills and shrieks of sleds and snowballs matter; for those who have Federal Disability Retirement applications waiting to be approved by the Office of Personnel Management, patience must still remain a virtue to be sought after.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Information

I am sometimes asked whether or not, in providing detailed information concerning FERS or CSRS disability retirement, I am revealing “too much” information. The way that I look at it is this: Not everyone can afford an attorney. I try to set my fee structure in a fair, reasonable and competitive manner, so that most people are able to retain me. When people are not able to afford an attorney, information on the process, the substantive requirements, and the legal precedents, are important to be able to access. While information provides power, however, it is not the same as having an effective advocate representing a case before the Office of Personnel Management.

Further, one of the greatest compliments I find in providing the benefit of my experience and knowledge to the public at large, is when other attorneys (i.e. competitors) parrot my information and repackage and restate what I have said, in their own “blogs” and “articles”. Professionally, I have no problem with other attorneys accessing the same information as the public at large, and restating the same (or similar) advice concerning the process of filing for Federal Disability Retirement benefits under FERS & CSRS. Good law is just that — good law. Who uses it, how it is used, and what the “totality of the end product” results in, makes all the difference.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Legal Arguments

Whether and to what extent legal arguments in Federal Disability Retirement cases under FERS or CSRS should be made, should rarely be ventured into by non-lawyers.  The boundaries of legal arguments are naturally constrained for lawyers both internally and externally:  internally, because (hopefully) lawyers are trained to recognize that maintaining the integrity of legal precedents is vital to the process, and externally, because all legal arguments are ultimately subjected to the review of a Judge — in the case of administrative laws governing Federal and Postal Disability Retirement, at the first instance by the Administrative Judge at the Merit Systems Protection Board, then potentially at the Federal Circuit Court of Appeals.  When laymen attempt to make legal arguments, there is the added danger of misinterpretation and mis-application of the law, which can further injure the chances of an Applicant filing for Federal Disability Retirement benefits to obtain an approval.  And, finally, such chances for success may be further damaged if it needs to come before an Administrative Judge for review.

Sincerely, Robert R. McGill, Esquire

Federal and Postal Disability Retirement: Reconsiderations

There is a line to be drawn between arguing the law within a boundary of integrity, and arguing the law beyond any reasonable interpretation of the law.  This principle is no less true in administrative law, which is what Federal Disability Retirement law is considered.  I often see non-lawyers make “legal arguments” in an initial application to the Office of Personnel Management, which is then denied, and I then enter my appearance in the case at the Second, Reconsideration Stage of the process.  That is fine — some applicants want to try and save the cost of hiring an attorney, and then decide it is necessary after it has been denied. 

However, as I often explain to clients:  while most mistakes in a Federal Disability Retirement application can be amended or explained, I do not have the magical ability to place “blinders” upon the eyes of the OPM Representative for legal or other arguments or statements made to them at the First Stage of the Process.  While my website and my articles & writings provide a good bit of information on filing for Federal Disability Retirement benefits under FERS or CSRS, and anyone can use it to his or her advantage, one bit of caution:  Don’t make legal arguments if you don’t fully know what you are talking about.  To do so more often than not results in a loss of credibility, and if your case goes before an Administrative Judge at the Merit Systems Protection Board, the Judge may not look favorably upon a case where a spurious argument was made at the initial stage of the process.

Sincerely, Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: The Law

Technically, the law does not have to be applied at the administrative, agency-level of the Office of Personnel Management.  Let me clarify:  one likes to always think that when an applicant for Federal Disability Retirement under FERS or CSRS is filing for the benefit, that the agency which oversees the application will review it with an overarching umbrella of criteria which is governed by an objective foundation deemed as “the law”.  Thus, in a perfect world, one might imagine an efficient line of technocrats sitting in cubicles, all with a reference book containing the relevant laws governing the eligiblity criteria for Federal Disability Retirement.  But that would be in a perfect world; and since such a perfect world fails to exist, what we have is an arbitrary sprinkling of various personnel, who collectively comprise the Office of Personnel Management, some of whom apply the law well, and some of whom apply the law less than competently. 

To some extent, the arbitrary methodology applied at the agency level is counter-balanced with the threat of a review by an Administrative Judge at the Merit Systems Protection Board, followed by a Full Review at the MSPB, then to be further appealed to at the Federal Circuit Court level; but it is nevertheless sometimes disconcerting that, at the Agency level, this peculiar animal called “the law” is not uniformly applied in all cases, at all times.  And sometimes rarely.

Sincerely,

Robert R. McGill, Esquire