Medical Retirement for Federal Workers: The Changed Standard

Lawyers are trained to engage in linguistic gymnastics; that is precisely why Plato railed against rhetoricians of his day, as they used language to distort the fullness of being (as Heidegger would say).  For, the malleability of language allows for a spectrum of purposive and mischievous play upon words; only an abiding sense of integrity in the face of a world which has abandoned parameters and boundaries of what constitutes “fair play” in the arena of linguistic word games, would save the original foundation of the correspondence theory of truth.

In this postmodern world where objective truth can no longer be argued for, subtlety in playing a language game is no longer necessary; one can simply, deliberately and without conscience switch one word for another, and maintain a straight face.

So, in a Federal or Postal Disability Retirement case, when the U.S. Office of Personnel Management inserts words which clearly do not reflect the legal standard as presently existing, what does one do?  When the standard is raised to require “disability which precludes you from the workplace”, or evidence of a medical condition which is “compelling”, how does one respond?

Such unwarranted and baseless legal applications are inserted in many denials from the U.S. Office of Personnel Management, requiring a Request for Reconsideration or an appeal to the Merit Systems Protection Board.  In the end, in order to properly respond, one must first recognize the malleability of language; then to identify the proper legal standard to be applied; then to selectively address such improper legal standards.

In a Federal Disability Retirement case, whether under FERS or CSRS, the ultimate problem is that one is dealing with a Leviathan of an agency — the U.S. Office of Personnel Management — and one which has the power to engage in rhetorical flourishes with unfettered abandon.

Sincerely,

Robert R. McGill, Esquire

Medical Retirement Benefits for US Government Employees: Denials

Denials issued by the U.S. Office of Personnel Management in a Federal Disability Retirement application are informative in multiple ways; while based upon templates for the most part, they often make arguments which are neither based upon the legal precedents which currently prevail, nor on standards of proof which are applicable.

In preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, the Federal or Postal employee is expected to submit a Federal Disability Retirement application based upon the standard of proof and legal requirements which are current, applicable, and relevant.

Yet, if a denial is issued by OPM — one that is based upon language which is clearly contravening the statutory standards of legal precedents — that requires things which are not truly required, then what does one do?

It is tantamount to proving a negative:  how does one prove that a murder did not occur?  Or that a man did not say something asserted to have been stated?  Or that one’s Federal Disability Retirement application does not contain “compelling” medical evidence, or here’s a better one:  “According to AMA Guidelines, you do not have more than a 5% permanent disability rating…”  What?  For OWCP purposes, that may hold some meaning or relevance, but for a Federal Disability Retirement application, it means absolutely nothing.

The answer to the question, What does one do?  What one must — go to the next level, with the proper legal tools in hand, to answer such nonsense.  Or, better yet, start at the first level with some preemptive legal arguments.

Sincerely,

Robert R. McGill, Esquire

Federal Employee Medical Retirement: The Bureaucratized Process

One cannot expect any entity, organization, or group of individuals to reinvent the wheel for each product, service or response; streamlining and repetitive conformity of a product, issuance or completion of a case is the way of the world; it is how the Model T became a successful capitalistic venture; it is how China dominates the world of marketing.  But in the world of Due Process, one cannot formulate a mass production of effective advocacy without trampling upon the rights of an individual.

Thus, on both sides of the process of preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, each case must be responded to in accordance with the specific, unique facts as constrained by the individual circumstances.

Conversely, one should expect — and demand of the U.S. Office of Personnel Management — that something more than a mere template of a response should be issued, after a careful and thorough review of a Federal Disability Retirement application.

If a FERS or CSRS Disability Retirement application is approved by OPM, then of course one can expect merely a letter of approval which is identical to thousands of others.  If denied, however, the denial letter should reflect a careful, thorough and individualized letter, reflecting the scrutiny of one’s particular OPM Disability Retirement packet.

Anything less would be to trample upon one’s due process rights as a Federal or Postal employee.

Sincerely,

Robert R. McGill, Esquire

Postal and Federal Disability Retirement: The MSPB & the Window of Opportunity

At the Merit Systems Protection Board (MSPB), there are multiple critical points of opportunity in which to convince, persuade and otherwise have a discussion with the Office of Personnel Management (OPM) to reverse their earlier denial of a Federal Disability Retirement application.

Remember, however, that this is the arena and playground of lawyers.  While an applicant who has meandered through the intricate administrative process of preparing, formulating and filing for Federal Disability Retirement benefits from the Office of Personnel Management, can certainly survive the administrative procedures as circumscribed by the Merit Systems Protection Board, it is a good idea to have legal representation— obviously, from the very beginning; if not, then to represent one’s interests in rebutting an initial denial at the Reconsideration Stage; if not (again), then to have proper representation before the Merit Systems Protection Board (MSPB).

Whether at a Preliminary Conference to discuss the forthcoming issues, or at a Prehearing Conference — or, in preparing and filing a Prehearing Statement as ordered by the Administrative Judge at the MSPB — opportunities arise for the Federal or Postal worker to submit additional medical evidence which can potentially persuade OPM’s representative to reverse the two previous decisions of denial.

Such opportunities must be carefully embraced.  Yet, often, a Federal or Postal employee who is unrepresented at the MSPB is unaware of the opportunities which arise, at which points, in what circumstances, and the Administrative Judge is bound by duty and position to remain neutral.  Then, of course, there is the Hearing at the MSPB, in the event that OPM does not reverse.  Whatever the circumstances of the Federal or Postal employee who is or will be filing for Federal Disability Retirement benefits under FERS or CSRS, an advocate to represent the Federal or Postal employee’s interests is paramount. Don’t “go it alone”; for, to do so will often only lengthen the process.

Sincerely,

Robert R. McGill, Esquire

 

OPM Disability Retirement: Substantive Responses

Once a Federal Disability Retirement application has been denied at any given stage of the process (at the First Stage or at the Reconsideration Stage) by the Office of Personnel Management, a Federal or Postal employee must determine the proper response.  

As stated in the immediately preceding blog, there is first the administrative response which must be satisfied, before one even gets to the issues of a substantive response.  The administrative response takes care of the timeliness issue of satisfying the administrative requirements set forth by the law — upon a first denial, one must submit a “Request for Reconsideration” within thirty (30) days of the denial; upon a second denial, one must file an appeal to the Merit Systems Protection Board within thirty (30) days of the denial, etc.  

As for the substantive response, the worst mistake that a Federal or Postal employee can make is to immediately write an angry diatribe and submit the response.  There is time enough for a thoughtful and proper response.  The issue is whether to rebut each point which the Office of Personnel Management makes, or to selectively choose one or two main points, and to focus upon those.  Normally, the latter is preferable, if only because such an approach normally addresses all of the subset, minor points of a denial in the very process of presenting one’s case.  Remember that, throughout the process, the mere fact that OPM asserts an argument, does not mean that the argument is true, or even valid.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Government Employees: Initial Application, Reconsideration & MSPB Appeals

Each Stage of the process in attempting to obtain a Federal Disability Retirement application under FERS or CSRS offers a distinct, yet similar, challenge.  Do not be fooled by responding to a “template” approach; while the Office of Personnel Management may respond in an indifferent, antiseptic manner, a Federal or Postal employee who must respond to OPM’s denial at each stage of the process must pinpoint what OPM is looking for, and respond appropriately.  Indeed, it is the distinction which one observes, which makes all of the difference in the case.  

Often, it is clear that OPM’s denial at the Initial Stage of the process, as well as a denial at the Reconsideration Stage of the process (which then compels an appeal to the Merit Systems Protection Board), is merely a regurgitation of thousands of previous denial letters, with some minor insertions which are meant to appear “as if” the denial letter has been tailored to a particular case.  

Thus, references to a particular physician’s letter, and even extrapolating a quotation from a doctor’s note or narrative (often something like, “Your doctor stated that you were recovering well from your surgery,” or “Your psychiatrist stated that the medications were working”) have the effect of personalizing a denial letter.  Yet, the remainder of the denial letter is in an antiseptic, template form, and it is clear that you are merely one of hundreds & thousands of responses written by OPM’s representative.  However, while OPM has the power to generate such template-driven denials, the individual Federal or Postal Worker must respond in an independent, individualistic manner.  It must be based upon one’s particular case, and thus the response must not be a “generic” one, but one based upon the uniqueness of the case.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement for Federal and USPS Workers: The Cost of Doing Nothing

The Office of Personnel Management has been sending out a number of decisions, and many have been denials.  They seem to come in batches; whether by coincidence, or in systematic fashion, OPM has tended in recent months to send out denials which fail to explain, leaving aside any concept of “discussion“, the basis of their denials.  

The irony of having a section entitled, “Discussion”, then merely delineating a regurgitation of the “applicable criteria to be eligible for Disability Retirement benefits“, then making a conclusory & declarative statement somewhat in the form of:  “You do not meet criteria X and Y” is hardly a “discussion” of the issues.  

Moreover, even in the denials which appear to be lengthy is the number of sentences, paragraphs or pages, the content is devoid of any substantive discussion of the issues.  It is more often simply a reference to a doctor, without any rational basis given as to what is lacking, but merely ending with a statement of conclusion, saying, “No objective medical evidence was provided,” or “The medical evidence does not show that…”  

One would expect that a logical structure of reasons would be provided, but such an expectation would fall short of what actually occurs.  The real problem is that, in reading such a denial letter, one doesn’t know where to start, what to answer, or what additional information needs to be submitted.  Thus, you must “read between the lines”.  

The cost of doing nothing is to get a further denial; that is simply not an option.  The best option is to reinforce what is already there.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Government Employees: Expectations

One would expect that there would be a correlative input of effort on the part of the Office of Personnel Management, something like a 1-to-1 ratio of effort reflecting the amount of care put into formulating, preparing, and submitting a Federal Disability Retirement application under FERS or CSRS, with the ratio being met by a corresponding amount of effort on the part of OPM.

If only for the sake of appearance; to give some justification, some acknowledgement of the medical reports submitted; of the time expended in preparing the Applicant’s Statement of disability, etc.

One would expect — or at least, should expect, in a denial letter issued by the Office of Personnel Management, enough of an indicator that the OPM Representative reviewed all of the medical reports, and attempted to remain objective.  Yet, more often than not, a mere paragraph is issued, with a great percentage of that paragraph a regurgitation of a template from multiple other decisions.

Expectations are often nothing more than an imaginary line where one perceives a professional standard to be; but, more often than not, only to have the expectation set at a standard of performance too high to achieve.

Sincerely,

Robert R. McGill, Esquire

Federal Employee Medical Retirement: The Chasm between Denials

From the perspective of an individual Applicant for Federal Disability Retirement benefits under FERS & CSRS, the individual applicant does not normally observe some other person’s Federal Disability Retirement application, and therefore never has the opportunity to see the “greater process” at work, or patterns of behavior on the part of the Office of Personnel Management.  Yet, there are indeed patterns, and that is why an experienced attorney who has seen literally thousands of Federal Disability Retirement cases over numerous years, has an advantage in responding to OPM’s denials.  Experience lends itself to greater observation.  Experience over time reveals certain patterns.  And patterns of behavior can reveal important principles. 

Certain OPM Representatives provide detailed and (often) irrelevant factual references which can be ignored; others like to “cite the law” and believe that such citations appear irrefutable and authoritative; and still others give scant discussion to laws or to facts.  Thus, there often appears to be a great chasm between the types of denials.  Whether or not there are such differences, an applicant who has received a denial for his or her Federal Disability Retirement case needs to respond to any such denial with a three-pronged attack:  Medical refutation; Factual correction; Legal assertion.  Such an attack will cover any chasm which might exist between the different individuals who send out a denial letter.  More importantly, it will cover the necessary elements for winning a Federal Disability Retirement case.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Reconsideration Response — Refrain from Reflexive Response

When a denial is received for an Application for Federal or Postal Disability Retirement benefits under FERS or CSRS, sometimes they are replete with comical “errors” and omissions.  Thus, anywhere from mistaken identities, to wrong job identifications, to the wrong doctors named; from medical conditions which were never claimed, to diagnostic tests and surgeries which were never submitted; these are just some examples of errors and omissions which one might find in the body of the “Discussion” in an OPM denial letter.

The reflexive temptation is to put together a string of harangues and accuse the OPM Representative of incompetence, incoherence, ineptitude, and inability to perform the essential element of his or her job.  Such a reflexive response would be the wrong tact to take, however.  One should refrain from making such “ad hominem” attacks.

Instead, the better way to go about it would be to politely point out the major errors, the omissions of any medical or other substantiating documentation, in an understated way, then to argue the main points that need to be argued to rebut the denial letter.  While the former methodology may make you feel good, in the end, it is an approval which will prove to be of lasting elation.

Sincerely,

Robert R. McGill, Esquire