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.  But 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

Disability Retirement for Federal Workers: Annotating the Record

It is always important, in contemplating a Federal Disability Retirement application either under FERS or CSRS, to annotate the record where possible.  Remember that the Merit Systems Protection Board has previously found that “an appellant’s application for disability retirement in the face of an impending removal for misconduct may cast doubt upon the veracity of his application.” Henderson v. OPM , 109 MSPR 529 (2008).

As such, in preparing a Federal Disability Retirement application, a successful outcome may depend upon a “war of memorandums” between the applicant and the Agency.  If the Agency is attempting to remove a Federal or Postal employee based upon “performance” or “conduct” issues, without regard to any medical evidence submitted to the agency, and thereby attempting to characterize the absences, the lack of productivity, warnings and suspensions as mere intransigence and insubordination, then it is important to annotate the record and memorialize the contacts, the submissions, etc., by writing confirming emails, letters, memorandums, etc., where the agency was informed about the medical conditions, which medical documents were submitted, to whom they were submitted, and even the content (perhaps in summary form) of what the doctor has stated.  The only way to remove a shadow of a doubt is by allowing the sunlight in (sorry for the trite analogy/metaphor).

Sincerely,

Robert R. McGill, Esquire