FERS & CSRS Disability Retirement for Federal and USPS Workers: Legal Tools

Few disciplines and classes of artisans create their own tools.  Musicians do not fashion their own instruments; accountants do not produce calculators or computers; painters do not manufacture their own brushes.  The blacksmith does, however, form and mold his own ironworks.

Similarly, the lawyer formulates the tools upon which he crafts his arguments; for, as most Judges are lawyers themselves, and the vast majority of legislators are also attorneys, so the statutes which are issued, and the judicial opinions which are rendered, are analogously “created” by those who are members of the class identified as “lawyers”.  Once created, it is how the tools are used which makes all the difference.

In Federal Disability Retirement law, the multiple tools available must be utilized for the very purpose of their making.  Thus, application of the Bruner Presumption must be invoked where appropriate, and “stretched” to their logical extension wherever possible; the “Trevan” rule concerning SSDI approvals should be pointed out whenever it has been approved during the process of waiting for a decision on a Federal Disability Retirement application; and the restatement of the applicable legal criteria in Henderson v. OPM should be emphasized when OPM attempts to misinterpret the applicable statutory criteria in being eligible for Federal Disability Retirement as requiring a 1-to-1 ratio between medical conditions and positional duties; and multiple other legal tools.

The issue of “where” a tool was manufactured, unless poorly constructed, is rarely one of importance or relevance; rather, it is how the tool is applied which is the issue of greater import and significance.  For it is precisely the “how” and the efficacy of the utilization of a tool which results in the intended consequences of such use.

For the blacksmith, a well-fitting horseshoe; for the accountant, a tax savings; for the artist, a masterpiece; for the lawyer, a victory.

Sincerely,

Robert R. McGill, Esquire

Federal OPM Disability Retirement: Answering the Question Is Merely the Beginning

The question itself is obviously the starting point; however, whether answering the question is enough, presents a greater problem.

In any arena of law, the wider context of legal requirements will include the statutory authority upon which regulations and standard governmental forms are based upon; then, there are case-law opinions of judges — in the area of Federal Disability Retirement, this would include the administrative opinions of the Merit Systems Protection Board, both at the Hearing level, as well as from a Petition for Full Review; and further, Court opinions from the U.S. Court of Appeals for the Federal Circuit.

In preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, one must obviously complete multiple Standard Forms. Chief among the forms is the “Applicant’s Statement of Disability“, or otherwise identified as SF 3112A.  There are multiple questions requesting information about one’s medical condition and the impact upon one’s ability/inability to perform the essential elements of one’s job.  The questions may seem straightforward enough; the answers can be; but the greater conundrum is whether completion of answers to such questions will be adequate in proving, by a preponderance of the evidence (which is the legal standard in meeting the adequacy of proof in a Federal Disability Retirement application, whether under FERS or CSRS) one’s eligibility for Federal Disability Retirement benefits.

It is precisely because there is a greater context of legal expansion in the laws governing Federal Disability Retirement, that merely answering the questions represents a beginning point.  In other words, we meet head-on the age-old distinction between that which is necessary, as opposed to what constitutes sufficiency in order to satisfy the criteria.

Sincerely,

Robert R. McGill, Esquire

Federal and Postal Disability Retirement: Citing Case-Law

In preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS, it is important to provide a guiding cover letter to the Office of Personnel Management — whether termed as a “Legal Memorandum”, a “Cover Page”, or some other designation — in order to introduce a “road map” to the OPM Representative who will be reviewing the case.  

While the OPM Representative will ultimately be able to “figure out” the documents to be reviewed (i.e., the Standard Forms are obviously familiar; the medical documentation should be self-evident, etc.), there is a distinction to be made between the documentation submitted, and the persuasive effect of the documentation.  There are times, of course, when the strength of a case is so irrefutable and unrebuttable that no guidance is needed; most cases, however, require some persuasive authority.  

The best road map will cite some relevant statutory authority or judicial cases of known precedence.  If one is to cite relevant legal authority, however, it is important to do so properly.  To mis-cite a case, its relevance, or its correct interpretive impact, can do more harm than good, especially if the case proceeds to the later stages of being argued before a Merit Systems Protection Board Administrative Judge.  

Knowing what one is speaking about is the basis for credibility; credibility in making a persuasive presentation of one’s medical conditions and their impact upon one’s ability or inability to perform the essential elements of one’s job is crucial to the effectiveness of one’s case.  Citing cases properly, forcefully, and with technical appropriateness is important in presenting a road map for OPM to follow — from the point of initial introduction, to the final conclusion of agreeing that the Federal or Postal employee is indeed eligible and entitled to Federal Disability Retirement benefits under FERS or CSRS.

Sincerely,

Robert R. McGill, Esquire

Federal Worker Disability Retirement: The Irony of Favorable Laws

In certain areas of “the law”, statutes, regulations and case-laws have developed which tend to favor the individual seeking to obtain a benefit through such laws.  For the Federal or Postal Worker who is seeking Federal Disability Retirement benefits under FERS or CSRS, one could easily argue that the laws governing the process of seeking Federal or Postal Disability benefits from the Office of Personnel Management “favor” the applicant.  

Think about it:  a Federal or Postal worker (under FERS) needs only 18 months of minimum eligibility; light duty, or modified duties, do not preclude one from obtaining Federal Disability Retirement benefits; one has up to a year after being separated from Federal Service to file for the benefit; a Federal or Postal Worker who suffers from a medical condition only has to show that it prevents one from performing one or more of the essential elements of one’s job; one does not need to show “total disability”, but only disability as to one of the critical elements of one’s job; and so on.

The irony of such “favorable” laws governing Federal Disability Retirement under FERS or CSRS is, however, that such favor often invites greater scrutiny.  Thus, the fact that the substantive laws governing a legal process may provide an advantage to the seeker, does not in any way mean that the process itself is any easier.  On the contrary, one could argue that because the substantive laws governing a legal process favor the applicant, that the process itself is made all the more difficult.  Such ironies often arise in various facets of life, and it certainly seems to be the case for Federal and Postal workers seeking to obtain Federal Disability Retirement benefits under FERS & CSRS.

Sincerely,

Robert R. McGill, Esquire