Federal Disability Retirement: The Rarity of the “Clean” Case

“Clean” cases are those which need no further elucidation. Like events and documents which speak for themselves, the clean case in a Federal Disability Retirement application, as in other sectors of legal encounters and adversarial processes, requires little, if any, explanatory addendum.

It is a rarity for two primary reasons:  First, because life itself defies a linear, uninterrupted sequence of events which follows along the parallel universe of administrative rules and regulations, and second (and probably more importantly and certainly problematically) because most people are unable to distinguish between an objectively clean case, and one which — because of one’s personal and subjective involvement in one’s own case — merely appears to be less embroiled than others with potential problems.

The Federal or Postal Worker who is preparing one’s own Federal or Postal Disability Retirement application, is the same person who suffers from the pain or psychiatric illness which is the foundation and basis of one’s claim.  As such, because the private world of medical disability is the identical consciousness which must prepare, formulate and present one’s Federal Disability Retirement application, whether under FERS or CSRS, to the U.S. Office of Personnel Management, it is difficult to make an objective, unbiased assessment of one’s own case.

The one who “feels the pain”, believes that one’s own pain is in and of itself persuasive to others as to the extent and severity of that pain.  That is why the truly “clean” case is a rarity; it exists mostly in the minds of those who believe in their own suffering.  The rest of the world, however, has little empathy for the suffering of others, and the systematic, bureaucratic volume of denials in Federal Disability Retirement applications is a testament to the harsh reality of the world in which we occupy.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: An Inherently Adversarial Process

One often hears about administrative procedures — that they are somehow distinguishable from court cases, EEOC proceedings, grievances, etc., in that they are “non-adversarial” procedures.  Really?  In designating it as such, one becomes lulled into thinking that, somehow, preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, is merely a matter of completing and submitting paperwork.

In a society which enjoys the safety of linguistic euphemisms, however, such an approach to an important application for benefits can result in devastating consequences.

Does a bureaucracy which is set up exclusively to review and potentially deny a Federal Disability Retirement application have the appearance of a non-adversarial process? Does the fact that one has a right to appeal it to the U.S. Merit Systems Protection Board, then to a panel of Administrative Judges for a “Full Review”, then to the U.S. Court of Appeals for the Federal Circuit, possess the scent of non-adversity?

A system which is set up with a specified statute of limitations, which employs procedural and substantive legal criteria set up to deal with appeals and submission of evidence; of a body of law which applies to determine the sufficiency of evidence; such a system is inherently adversarial in nature, and whatever words or string of words one might use to describe such a system, it is first and foremost, an adversarial process.

Treat it as such, or enter into its arena with caution and forewarning.

Sincerely,

Robert R. McGill, Esquire

Postal and Federal Disability Retirement: The Easy Case

Life presents conundrums; puzzles exist to be solved, but few attempt to understand the foundational precepts which need to be discovered and applied; ergo, Aristotle remains an esoteric author of antiquity, to be rediscovered and in whom delight approaches an enduring mystery.  In every endeavor of that vast designation identified as “life”, difficulties abound, challenges confront, and obstacles confound.  One hears about the “easy” life, how X has it so “comfortable”, and the proverbial, “if only I…”

In preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, one often hears about the “easy” case — it proves itself; the evidence is so overwhelming that…

Take the following hypothetical:  X has an OWCP case approved; Second opinion and referee doctors all state that X cannot return to performing one or more of the essential elements of one’s job; additionally, SSDI has been granted; and on top of everything else, the agency has removed X from the Federal or Postal rolls, based upon one’s “Medical Inability to perform the essential elements of his/her job.”

As Federal Disability Retirement cases go, this may constitute and possess elements which most would consider a “sure thing”.  Easy case?  What is missing?  As to the first question, the answer is a resounding, “No”.  As to the second question, those who have inquired as to the “first principles” in Aristotelian fashion, will be able to discover the answer, and this author need not state thejavascript:; obvious.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Always Prepare for the Eventuality

The “cut and dry”, “slam-dunk”, “no possibility of denial” case rarely exists.  In preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS, the approaching attitude of humility, caution and scrupulous care for detail should always dominate, and any attitude that one’s Federal Disability Retirement application should be treated as a “given” will often backfire.  

Such an attitude, however, should be distinguished from one of confidence.  

If one has properly prepared one’s case, with scrutiny of detail, meticulous compilation of medical evidence, technical application of legal citations and attention to creating the nexus between one’s medical conditions and the positional duties of one’s job, then the Federal or Postal employee should be confident that the Federal Disability Retirement application, whether under FERS or CSRS, will be approved, whether at the Initial Stage of the administrative process, at the Reconsideration Stage of the process (both at the Office of Personnel Management), or at the “legal” forums — the Merit Systems Protection Board, the Petition for Full Review, or the Federal Circuit Court of Appeals.

What is always important throughout the process — whether with an attitude of confidence, humility, or even arrogance — is to prepare the foundation for each stage, with an eye towards the next stage.

Thus, careful preparation — of thoughtful and concise legal citations and arguments — are not necessarily for the “present” stage, but always for the future.  For, everything that one does in life should always contain an ingredient of preparation for the future, and for a future eventuality; preparing, formulating and filing for Federal Disability Retirement benefits under FERS or CSRS is no different.

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