Federal and Postal Disability Retirement: Sufficiency of Evidence

At what point is the sufficiency test satisfied?  Who determines when the bathtub is full enough in order to bathe?  What constitutes the threshold of being gluttonous on Thanksgiving, as opposed to having had a hearty meal? And, for a FERS or CSRS Disability Retirement application, what standard determines whether or not a person has submitted evidence sufficient to meet the preponderance of the evidence test, in order to persuade the U.S. Office of Personnel Management that a Federal Disability Retirement application has met its burden, and that the Federal or Postal employee is therefore eligible and entitled to receive an approval and a subsequent annuity?

Clearly, it cannot be mere volume of medical reports and records; for, otherwise, cases with barely a dozen pages of a report, diagnostic test results and some office notes would not pass through the scrutiny of the OPM Caseworker.  If not volume, then is it the quality of the report and records?  Here, too, while a well-documented file may generally meet the sufficiency test, there are times when OPM will insist upon treatment notes for the past 18 – 24 months before considering a case for approval.

The sufficiency test is often an admixture of quality, quantity, and a compendium of selectively highlighted documentation which, in their totality, prove an OPM Federal Disability Retirement case.  There are no two cases alike, though similarities may abound.  Each case must be seen in its own unique light, and within that context, a case must be carefully constructed and compiled.  Only in this manner and approach will the sufficiency test be met, and only after a careful and thorough review of the facts, issues and particular uniqueness of a given case — somewhat in a reflectively similar manner as OPM will do in reviewing the submitted case.

Sincerely,

Robert R. McGill, Esquire

 

Postal and Federal Disability Retirement: The Beast of Burden

The burden is undertaken by those have little choice in the matter, but who willingly submit to the responsibility and obligation.  Traditionally, the “beast of burden” (other than being a Rolling Stone song) refers to a somewhat-domesticated animal, perhaps a donkey or an ox, who must bear the weight of man’s work.

In law, the “burden” is one of proof — of the affirmative obligation to present one’s facts, persuasive argumentation based upon such facts, and the application of the relevant law which supports both the facts and the arguments.  The “other side” in the litigation has no burden at all, and can simply sit and do nothing, if he or she so chooses, and see whether or not the plaintiff, the appellant or the Federal Disability Retirement applicant has submitted sufficient proof such that he or she has met his/her burden of proof.

As the weight placed upon a beast of burden is often heavy and demanding, so in a similar vein the litigant who has the burden of proof should always expect to exceed what is “necessary” in any given case.  For the Federal or Postal employee who is filing for Federal Disability Retirement benefits through the U.S. Office of Personnel Management, whether under FERS or CSRS, it is indeed a heavy burden to bear in order to meet the legal criteria of a Federal bureaucracy who has the unmitigated power and authority to approve or deny.

The burden of proof — it is as heavy as that which we place upon a beast of burden, and the weight of such responsibility can overwhelm us, lest we have the reserve of strength to plod onward.

Sincerely,

Robert R. McGill, Esquire

Postal and Federal Disability Retirement: The Agency & the Burden of Proof

In a Federal Disability Retirement case, submitted to the U.S. Office of Personnel Management, whether under FERS or CSRS, the burden of proving one’s medical inability to perform one or more of the essential elements of one’s job, always remains with the individual Federal or Postal applicant.

Certainly, there are actions by the agency which may add to such proof (e.g., declaring that the Federal or Postal worker is “not fit for duty” will further concretize an assessment made by a third party; or initiating a separation from Federal Service based upon one’s medical inability to perform the essential elements of the job will trigger the Bruner Presumption, which then invokes a rebuttable presumption and shifts the “burden of production” (note that it is not the shifting of the “burden of proof” — a conceptual distinction important to recognize) over to the U.S. Office of Personnel Management.

Waiting for one’s agency to act upon anything is, however, a very dangerous venture to begin with; thinking that one’s own agency will provide the proof necessary to establish one’s eligibility for Federal Disability Retirement benefits would not only be dangerous, but foolhardy.  For, at its most fundamental level, the fact that the very entity which makes a decision on a Federal Disability Retirement application (OPM) is one which is separate and independent from the agency for which one works, creates a chasm which only further magnifies the inherent problem.

OPM pays little to no attention to what the agency does — except, perhaps, when the agency attempts to directly confront and challenge a Federal Disability Retirement application.  Otherwise, don’t look for help from one’s agency (generally speaking) when one is filing for OPM Disability Retirement benefits; such unfounded reliance will only disappoint, at best.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Workers: Defining Complexity Down

The complexity of a Federal Disability Retirement case is made all the more so, in exponential fashion, when the inherent issues concerning the medical condition and its impact upon one or more of the essential elements of one’s job are difficult and involved.

The administrative process of preparing, formulating and filing for Federal Disability Retirement benefits, whether under FERS or CSRS, from the U.S. Office of Personnel Management, is in and of itself a complex process — if only for the sheer volume of Standard government forms which must be completed — and is compounded in multiple ways when the variegated medical conditions are included.  Indeed, sometimes it is the combination of multiple medical conditions which, in the totality of interconnected and intersecting symptomatologies, constitute the entirety of the medical impact in preventing one from performing a particular kind of job.

It is the job of the applicant for Federal Disability Retirement benefits — the Federal or Postal employee under FERS or CSRS — who must define the complexity down to its basic, comprehensible and coherent, cogent presentation, in order for the reviewing clerks at the U.S. Office of Personnel Management to analyze and ultimately approve the Federal Disability Retirement application.

A simple rule of thumb:  If you cannot explain it, how will OPM make heads or tails of it? The solution:  If you cannot do it, obtain the services of someone who can; normally, this would involve an attorney.

Sincerely,

Robert R. McGill, Esquire

Postal and Federal Disability Retirement: Affirmative Proof

It is a single agency — the U.S. Office of Personnel Management, and specifically the Disability, Reconsideration and Appeals Division — which makes the determination on all Federal and Postal Disability Retirement applications.

It is not the agency (although the agency can provide some nominal assistance on some peripheral issues); it is not the U.S. Postal Service; it is not the Human Resources Department of the agency (the personnel of whom will often claim that they have processed “thousands” of such submissions and never had one rejected); and it is certainly not the H.R. Shared Services office of the U.S. Postal Service in Greensboro, N.C. — these are not the Federal or Postal entities which make a determination upon a Federal Disability Retirement application under FERS or CSRS.

In preparing, formulating and filing for Federal Disability Retirement benefits under either FERS or CSRS, it is the affirmative duty of the applicant — the Federal worker employed by a Federal agency; or the U.S. Postal Worker — who must prepare the case, formulate the content of the proof and arguments to be used; and ultimately file the case, either through the agency if the Federal or Postal employee is still employed or any separation from Federal or Postal Service has been less than thirty one (31) days; or, if the Federal or Postal worker has been separated from Federal Service for more than thirty one (31) days, then to file it directly with the U.S. Office of Personnel Management, and to do so within one (1) year of being separated from Federal Service.

The proof to submit must be affirmative — meaning, thereby, that it addresses each of the legal criteria necessary to be found “eligible” for Federal Disability Retirement benefits.  You cannot rely upon the agency, third parties or other entities to do this; it must be done by the particular “you”, or if the referential point is reversed, by the “I”, as in the Federal or Postal employee.

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

Medical Retirement Benefits for US Government Employees: The Approach

In preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS from the Office of Personnel Management, one should always make the conceptual distinction between an “entitlement” and an “eligible benefit”.  

Federal Disability Retirement benefits fall into the latter category.  However, because the technical distinction between an “entitlement” and an “eligible benefit” is often not made, or not thought of, the approach in preparing and filing a Federal Disability Retirement application becomes problematic and fraught with defects.  

In speaking with various Federal and Postal employees who are contemplating filing for Federal Disability Retirement benefits, one often hears the case that his or her particular disability retirement application is “a sure thing,” or that the “medical evidence shows that it’ll sail through.” 

While self-confidence is an admirable quality, approaching a Federal Disability Retirement application with the idea that the benefit is tantamount to an entitlement because of the strength of meeting the applicable burden of proof, is what is popularly referred to as, “A recipe for disaster”.

When a Federal Disability Retirement application is reviewed by the Office of Personnel Management, it is never a sure thing.  It must be carefully prepared and presented, and any amount of taking an issue or element of the application for granted is a foolhardy perspective.  

Self-confidence should arise after a good piece of work has been accomplished; and, even then, one should always be prepared to engage in a protracted battle.  After all, the eligible benefit of Federal Disability Retirement is worth fighting for, in order to secure one’s physical, mental, and financial future.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Government Employees: Preparing the Case

As in everything in life, preparation is the key to a successful endeavor.  In preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS, the Federal or Postal employee under FERS or CSRS has the affirmative burden of proving by a preponderance of the evidence that one is eligible and entitled to Federal Disability Retirement benefits from the Office of Personnel Management.  

By “affirmative” is simply meant that it is not the responsibility of the Agency, the Office of Personnel Management, or any other bureaucracy to obtain and submit the necessary evidence, documentation or forms to meet the burden.  While it is true that the Agency must complete certain forms, it is still the responsibility of the Federal or Postal employee who is filing for Federal Disability Retirement to request their completion.  

Further, by “burden of proof” is meant that there is a certain set of legal criteria that the Federal or Postal applicant must meet in order to become qualified for Federal Disability Retirement benefits under FERS or CSRS.  Unlike Social Security, where the Agency itself will contact the doctors, set up medical reviews and consultative examinations with appointed doctors in order to establish the extent of one’s medical conditions, etc., under the legal criteria set up by the Office of Personnel Management, it is entirely up to the Federal or Postal employee to gather, obtain and submit the evidence to meet the burden of proof.  

That places a significant responsibility upon the potential applicant, and in order to meet that burden, it is well to take the time to prepare each and every aspect of a Federal Disability Retirement application, and not just blindly leave a form with a doctor, or anyone else, hoping for the best.  To prepare means time; expending the time at the forefront will often save time in the end.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Government Employees: Making Explicit the Implicit

Sometimes, it is implicitly clear in the formulation of the Federal Disability Retirement application that the applicant is unable to coherently present one’s case in a Federal Disability Retirement application under FERS or CSRS.  

Whether because of the physical limitations or the cognitive dysfunctions, the brevity of the statement on the Applicant’s Statement of Disability, or the illegible handwriting, etc., may well provide an indication of one’s medical conditions and their impact upon one’s Federal or Postal duties in a particular position.  But to rely upon an implicit revelation, or to expect that a Claims Representative at the Office of Personnel Management may infer the intractable pain which the potential applicant may be experiencing, is to expect that which will likely not happen.  

The paper presentation offered to the Office of Personnel Management must be explicitly stated at every juncture, at every opportunity, at every potentially coordinating point — with succinctness and clarity of delineation, utilizing the language available, inserting the most effective, descriptive adjectives to create a compelling word picture, governed by truth and justified by the medical documentation within the parameters of the law, in order to express that which has previously remained implicit.

To make explicit that which is implicit is the key; to expect the implicit to be recognized by the reviewing individual at the Office of Personnel Management is to expect the impossible.

Sincerely,

Robert R. McGill, Esquire