OPM Disability Retirement: The Winning Argument

Most arguments are not won by sheer force of logical persuasion; for, that would require the assumption that not only does everyone think “logically”, but that everyone also has been versed in the technicalities of propositional and syllogistic logic, has studied them and accepted them as overriding and dominant methodologies of discourse.

We like to harken back to the classical period of civilization’s cradle and cloak our biases with Aristotle’s dictum that we are all “rational animals” — implying thereby that our thought processes are powered by a predetermined set of algorithms characterized by the model of a supercomputer.  Yet, we — as fallible human beings ourselves — instinctively know better.  People do not think, leaving aside argue, by mere logical rules and discourses of such modalities; there are almost always other factors involved, whether of emotional ties, internal egoistical motivations or just the pure and unadulterated need to win at every engagement.

Aside from such human factors, however, is there an “objective” standard that characterizes a “winning argument”?

For Federal Employees and U.S. Postal workers who suffer from a medical condition such that the medical condition prevents the Federal or Postal employee from performing one or more of the essential elements of one’s Federal or Postal job, it is essential to put together a FERS Disability Retirement application with this in mind: How to effectively put forth your case with “the winning argument”.

The U.S. Office of Personnel Management is never there to “rubber stamp” a Federal Disability Retirement application.  They are there to parse, tear apart and potentially undermine, and it is important to recognize the pitfalls and shortcomings of your particular case before putting together arguments that will ultimately win your case.

Consult with an attorney who specializes in Federal Disability Retirement Law today so that you can begin to formulate “the winning argument” that will obtain an approval of your Federal Disability Retirement application.

Sincerely,

Robert R. McGill, Esquire

 

OPM Disability Retirement: The Power of Approval

Whether the Federal agency or the U.S. Postal Service can have a significant impact upon a Federal Disability Retirement application is a question often asked; then, of course, there are always suspicions that certain individuals and entities may try to undermine or otherwise sabotage, out of pure animus and acrimonious low-down-ness (not a legal or technical term, by any stretch of the imagination), by going through “back-door” channels and attempting to influence or otherwise paint a portrait of perverse circumstances.

At best, agencies, individuals and entities of the Federal kind can remain neutral and harmless; at worst, they can allege unspecified and unidentifiable, nefarious circumstances of associated behaviors or conduct issues otherwise unrelated but left to the unimaginative creativity of an OPM administrative specialist.  But then, since those would all be illegal and unofficial acts of retribution and retaliation, they would never be validated nor publicly acknowledged, anyway, and so only the suspicions would remain, without verifiable evidence of ascertained capability to influence or otherwise persuade a negative determination to be reached by the U.S. Office of Personnel Management.

To their credit, OPM asserts complete and total independence, and refuses to allow for any influence but for the legal criteria in evaluating a Federal Disability Retirement application, whether the individual is under FER, CSRS or CSRS Offset, and whether the Federal Disability Retirement application comes from the U.S. Postal Service or from one of hundreds of Federal agencies and departments across the country.

Neither a Federal agency nor the U.S. Postal Service can promise or otherwise grant a Federal Disability Retirement application to a Federal or Postal worker; only the U.S. Office of Personnel Management can do that.  Empty promises aside, whether by implication, inference or alleged influence, OPM is the only entity which can approve a Federal Disability Retirement application.

Yes, agencies can be more helpful than not (though that is rare); agencies can somewhat harm (though a Federal OPM Disability Retirement application is ultimately based upon the medical evidence gathered); and yes, agencies more often than not attempt to undermine rather than assist (despite thousands of Human Resource Specialists across the country claiming otherwise); despite all of this, it comes down to a single entity — the U.S. Office of Personnel Management, and no other agency — which grants or denies an approval for a Federal Disability Retirement application.  As such, beware of promises made; be cautious of settlements reached; and be dubious of claims of egomaniacal exponents of hyperbolic vituperations; they normally amount to the value of the verbal paper they are written upon.

Sincerely,

Robert R. McGill, Esquire

Federal Disability Retirement Lawyer blog: Meeting the Legal Criteria

Lawyers often speak about “the law” as if it has the character of a science — of established principles which are objective, without the arbitrary influences of subjective interpretive devices or nuances. But even science itself fails any pure test of universal unalterability; one need only read Kuhn’s description of shifting paradigms in the history of science (The Structure of Scientific Revolutions) to understand that objectivity is merely another word for pragmatism. For, that which “works” or is “effective” in the eyes of the greatest number of people, is what matters to most people. That is why success is an irreplaceable harbinger of general opinion.

In the Federal government, one would like to expect application of rules, regulations, etc., somewhat in an algorithmic form, where favoritism is lacking, and where everyone has a “clean shot” at everything.

Especially when it comes to a benefit such as Federal Disability Retirement, which impacts those who are most unfortunate — one beset with a medical condition such that one can no longer perform all of the essential elements of one’s job — an expectation that an objective criteria which can be met by pure factual presentation, legal magnification of relevant statutes and laws, and perhaps some modicum of argumentation for persuasion, is what should occur in a perfect world. But as the proverbial perfect world fails to materialize, we must do with what we are given; subjective interpretation, and selective analysis are merely human frailties and imperfections.

That is why legal argumentation and countering of subjectivism must be employed.

Federal Disability Retirement, whether for FERS or CSRS employees of the Federal government, must be fought for, and “won”; there is no mathematical algorithm of objective application; there is no parallel universe of perfection; there is only the human condition, which requires interpretation, knowledge, analysis, and argumentation which persuades and cajoles.

Sincerely,

Robert R. McGill, Esquire

Postal and Federal Disability Retirement: The Efficacy of an Argument

If a security system is never triggered, can one conclude that it has been effective?  Is the failure of a system more telling than its lack of use?  Can the negation of a fact be used to prove its existence and the validity of a theoretical construct?  Can one argue, See — X did not occur; therefore Y must have occurred?  In terms of pure propositional logic and its internal system of validity, one can conclude that certain logical constructs are on their face invalid and contain fallacies.

This was one of Wittgenstein’s points concerning human language games:  the very self-contained artifice of the universe of meaning possesses no reflective correspondence to the physical world; and, in today’s parallel universe of the Internet, Facebook, Twitter, emails, etc., the technological artifice which encapsulates so much of our lives only serves to exponentially magnify such lack of corresponding significance.

In making legal arguments in a Federal Disability Retirement application, whether under FERS or CSRS, it is often important to understand the context within which the legal argument is being made.  One never knows whether, and to what extent, any particular legal argument is effective; and sometimes all that can be made is the pretext of the argument, and to leave the substantive impact for future application.

For example, does the fact that a person has received a “proposed removal” have the same impact as one who has in fact been removed for his or her medical inability to perform one’s job?  Or, similarly, does a person who receives a VA rating determination of “unemployability” have the same impact as one who is allocated with a 90% disability rating, arrived at through various lesser ratings and combinations thereof?

The effectiveness of any argument will depend upon the level of persuasion employed; the level of persuasion will be contingent upon the validity of the sequential connections of often independent logical statements; and the force of a conclusion will be determined by the strength of its weakest link.  If an argument of negation must be employed, take care to do so by linking it to an undeniable fact.

Sincerely, Robert R. McGill, Esquire

Medical Retirement for Federal Workers: Persuasion and Diatribes

Methods of argumentation require one to embrace a tripartite approach:  Regard for who the audience is; consideration of what the intended goal is; selection of the effective methodology of presentation.

Diatribes will often consider the first two points, while disregarding the third — for, the intended audience is the targeted person or group who must bear the vitriolic attack; the goal is to let loose a torrent of one’s beliefs and (in all likelihood) upset the recipient; but it is rarely an effective approach for any intended purpose other than to gratify one’s emotional turmoils.

Persuasion, on the other hand, must by necessity include the third element — for the very sign of success not only regards the intended audience and considers the goal of changing another’s mind; most importantly, it must do so in a subtle, quiet sort of way — by allowing for the recipient of the presentation to think that he or she is changing a perspective based upon one’s own volition, when in fact the presentation itself is the vehicle of the alteration.

It is this distinction between a diatribe and persuasion which one must keep in mind when preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS. The bull-in-a-china-shop approach in presenting one’s Federal Disability Retirement application before the U.S. Office of Personnel Management will rarely win them over; on the other hand, a carefully-crafted presentation based upon a streamlined narrative; upon medical evidence which is concise; and with legal arguments which are precise — leads to a methodology of persuasive impact.

Diatribes serve their self-centered purposes; persuasive argumentation allows for the unseen thread to pull the levers of effective results.  In the end, the short-term gratification of a diatribe will leave one hungry and dissatisfied, whereas the fruits of persuasion will always fulfill the needs of the audience, and the desire of the presenter.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Government Employees: Legal Arguments

Legal arguments represent a peculiar form of persuasive argumentation; by appealing to statutory authority, precedents as set by prior court cases and administrative legal opinions, as well as decisions rendered in previous decisions — the foundation of a legal argument rests upon the validity of that which occurred prior to one’s own case.

That is why, in making a legal argument, lawyers argue “by analogy” — via similarity of factual context, as a logical proposition:  X resulted in Y; the factual circumstances in A are similar to X; therefore, A should similarly result in Y.  It is not, in terms of pure syllogistic logic, a valid one to make; for the dissimilarities between A and X may well determine the outcome as to Y.

Further, familiarity with the underlying reasoning of a legal opinion is essential to making a valid legal argument.  That is why non-lawyers who attempt to cite case-law and legal authorities as a basis for their Federal Disability Retirement often fail, and fail miserably:  while it may be the right case-law to cite, the analogy may not fit the context.  In preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, it is not only important to create the nexus between one’s medical condition and the positional duties of the Federal or Postal job; moreover, it is essential to make the logical and legal argument in a persuasive, effective manner.

According to an Aristotelian approach, man is indeed a rational animal, and rationality is effectively pursued through a logical methodology; but what is not stated in such an approach, is that rationality and logic do not constitute the entirety of the universe of human persuasion; legal argumentation is merely one facet of the society within which we must live; in the context of a Federal Disability Retirement application, it may play a major part; and that is why citing the right case, making the proper analogy, and creating the logical nexus between facts and “the law”, is essential to a successful outcome in a Federal Disability Retirement application, whether under FERS or CSRS.

Sincerely,

Robert R. McGill, Esquire

Federal Employee Medical Retirement: The Last-Minute Application

If one fails to file for Federal Disability Retirement benefits from the U.S. Office of Personnel Management (i.e., the Statute of Limitations for all Federal and Postal employees in filing a Federal Disability Retirement application, whether under FERS or CSRS, is 1-year from the time of separation from Federal Service) within the time prescribed, then one cannot make any legal arguments or supplement one’s case — precisely because the Federal or Postal (former) employee has failed to meet the minimum statutory deadline.

However, once filed, the case can be supplemented and “added to”; additional evidentiary documentation may be submitted; but amendment to the Federal Disability Retirement application will be severely limited, because you cannot withdraw the application in order to change it — if the withdrawal is effectuated after the 1-year Statute of Limitations passes.  This is because the Federal or Postal Disability Retirement applicant is restricted by the rules governing SF 3112A, where one cannot “add to” the list of diagnosed medical conditions once it is received by OPM (although there are ways to characterize such identified conditions to somewhat circumvent the restrictions).

Sometimes, because of the medical condition itself, or for unforeseen circumstances which are beyond the physical, emotional or cognitive control of the potential applicant for Federal Disability Retirement, such procrastination is simply a fact which must be dealt with.  Whether the day before the 1-year cut-off, or 10 months before, once filed, at least the Federal or Postal employee will have the opportunity to make legal arguments, and for the most part, the ability to supplement his or her case.

It is only if it is NOT filed on a timely basis, that such additional activity will then be precluded.  Thus, the obvious rule:  File before the deadline.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Government Employees: The Art of Argumentation

The Art of Argumentation is a dying form.  Watching any “debate” forum on television or the radio; viewing the Presidential debates; it has become, instead, a time of pontification, where the loudest, most vociferous voices, and those who can filibuster the time, seemingly “wins” the debate.  

For the art itself to be effective, it must be accomplished in a manner where the opponent is unaware of the subtle impact of the argument itself; it needs to be conveyed in a manner of a conversation, where persuasion is mixed within the content of a narrative.  Of course, there are numerous forms of argumentation —  a strict, logical proposition; a legal citation where one argues that the opponent has little to no choice but to abdicate a position because of what a case-law states; but in most instances, the subtleties must be observed because of the obfuscation of the circumstances and the lack of clarity of the law.  

In preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, it is important to compose one’s argument as a conductor would an orchestra:  the facts, the evidence, and the law must be gathered and coordinated; streamlining should be an inherent part of the process; and the tone and tenor of the various instruments will need to be brought together into a coherent whole.  

No one likes to sit and listen to a screechy violin, no more than to listen to the drone of a tuba.  The art of an argument must bring together all of the instruments into a melodious whole, where the listener — in this case, the U.S. Office of Personnel Management — is lulled into a state of rapture, to the extent that an approval of a Federal Disability Retirement application is granted with a smile.

Sincerely,

Robert R. McGill, Esquire

Postal and Federal Disability Retirement: Sparing the Legal Argument

In preparing, formulating, and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, there are multiple discretionary decisions to make.  By “discretionary decision“, is meant that there may be differing priorities of values which must be placed in the very process of deciding whether or not to include or exclude a medical document, legal argument, etc., and the prioritizing of the value placed upon such evidence is what will determine the decision itself.  There may ultimately be no “correct” decision on the matter, as opposed to an incorrect one.

Further, one may never know (or care, once an approval of a Federal Disability Retirement application is received) whether or not the Office of Personnel Management made a positive or adverse decision on the Federal Disability Retirement application (whichever the case may be at any given stage of the administrative process) based upon the same priority of values assessed upon the decision itself.

For example, sometimes the evidence itself — whether medical or non-medical documentary evidence — may be compelling enough in and of itself, that making a long and tedious legal argument may in fact detract from the prima facie strength of the evidence itself.  Or, it may be that a short sentence or annotation in a medical document may be so significant that a particular legal argument, however long and involved that may be, should be stated, and stated at length, and argued boldly.

Discretion dictates a restraining of a reactionary response; sometimes, the shorter the statement, the more effective is the presentation.  Length and verbosity alone do not constitute effectiveness in preparing, formulating and filing for Federal Disability Retirement benefits from OPM.

Sincerely,

Robert R. McGill, Esquire

Federal Worker Disability Retirement: The Applicability of the Legal Argument

If there is a legal argument to be made, make sure that it is applicable; further, it is important to distinguish between the necessity of making a legal argument, as opposed to allowing the facts to speak for themselves, and the medical reports and records to establish the necessary proof by a preponderance of the evidence.

In administrative law, and specifically in preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, the “applicant” (the one filing for Federal Disability Retirement benefits, whether as a Postal Worker or as a non-Postal, Federal Worker) has the advantage of thoughtfully compiling the material, documentation, legal memorandum, narrative reports, and the entire compendium of proof necessary to meet the legal requirements of eligibility, and therefore entitlement, to Federal Disability Retirement benefits.

It is essentially a “paper presentation” to the Office of Personnel Management.  As such — because the applicant is able to take the necessary time and effort at the front-end of the process to prepare a compelling case, it is important to “pick and choose” the viable legal arguments to be made.

Sometimes, facts can speak for themselves, and there need not necessarily be a legal case to support the facts.  Other times, the medical report and records can meet the legal requirements, without citing a specific statute or case-law.  Then, there are applicable legal arguments which must, and should, be made, if merely because one should assume that OPM will not recognize the legal requirements unless aggressively informed about it.

In making such legal arguments, however, don’t undermine your own case unless you know what you are talking about.  Better to remain silent on matters not known, lest you reveal your lack of knowledge on the matter.

Sincerely,

Robert R. McGill, Esquire