Disability Retirement for Federal Workers: Substantive Reorganization

It used to be that social conventions, customs, values and mores were deemed inviolable and unchangeable; then, when Western Philosophy realized that complex problems and conundrums could be solved by merely tinkering with language, and that the elasticity of linguistic anachronisms were far more susceptible to alterations than attempting to modify human behavior, all such problems disappeared, and the utopian universe of studying one’s own navel was established.

Whether such creation of a virtual reality and parallel universe will result in the expected quietude and peace of the human condition; and whether linguistic latitude satisfies the bubbling undercurrent of human query, only time and eternity will reveal.

Lawyers probably had a lot to do with it.  Lawyers, on the whole, believe fervently that language is the greatest and most powerful of tools.  Look at the legislative branch of local, state and Federal governments; who populates them?  Why lawyers? Because by going to the heart of the entire process, and controlling and advocating for the statutory language at its inception, one can assert and dominate with the greatest of powers:  the power of language in the law.  But what of reality?  The reordering and reorganization of one’s life cannot always be accomplished by the mere changing of wording, or by redefining what one believes in.

Sometimes, there has to be a substantive reordering of one’s life.  One cannot redefine what illness or medical disability one must face, and expect that a material change will occur.

For Federal and Postal employees who must face a medical condition, such that the medical condition has impacted one’s vocation and livelihood, the duality of language and reality must be faced:  The Federal and Postal Worker must attend to the substantive problems of the medical condition, while at the same time file for Federal Disability Retirement benefits through the U.S. Office of Personnel Management, whether under FERS or CSRS, and engage in the administrative process of linguistically persuading the U.S. Office of Personnel Management of the substantive reality of the impact of one’s medical condition upon the ability to perform all of the essential elements of one’s Federal or Postal position.

But be not confused between the duality of efforts; it is the substantive reorganization of one’s life which is by far the more important; the reordering of language to fit the reality of the human condition is mere child’s play compared to the reality of suffering one must go through in attending to the real-life problems of a medical condition.

Sincerely,

Robert R. McGill, Esquire

 

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

Postal and Federal Disability Retirement: The Use of Percentage Designations

The Department of Veterans Affairs does it; in obtaining a scheduled award from the Officer of Workers’ Compensation Programs, administered under the Federal Employees’ Compensation Act (FECA), the amount determined is based upon it; and so it is understandable that confusions may arise as to its relevance, import and various applicable uses.

Disability ratings represent an attempt to quantify the extent of one’s medical condition, injury, or loss of limb or body mobility, flexion, ability to use, etc.  Such attempt at quantification, no matter what mathematical calculus or methodology employed, must by necessity involve a level of subjectivity; for any such attempt is pre-determined by the criteria which is applied, and any such criteria which purports to apply universally will be unable to accommodate the uniqueness of an individualized case.

In a FERS or CSRS Disability Retirement case, the benefit provided is a flat rate, and is set by statute.  It does not increase or decrease based upon a percentage assignation of a medical disability.  Similarly, in Social Security Disability, the amount of the annuity received does not change because of an increase in percentage.

Whether one can or should use the assigned percentage rating from the VA or from OWCP, in proving or attempting to prove eligibility in FERS or CSRS Disability Retirement cases, is a matter of discretion.  The amount of the disability rating; whether the gross number is a combination of fairly insignificant fractured percentages; the substantive discussion justifying each number, etc. — all of those factors must be taken into consideration before using it in a Federal Disability Retirement application.

Numbers alone rarely mean anything; 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 not the numbers, but the words which support them, which will make the difference.

Sincerely,

Robert R. McGill, Esquire

Federal Employee Medical Retirement: The Tool of Repetition

Repetition is an important tool in any written genre; overuse of the tool can always backfire (is there an inherent conundrum in criticizing the tool of “repetition” by saying that it can be “overused” — probably), but in preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS from the Office of Personnel Management, the importance of repetitively stating the important elements of one’s medical conditions and their impact upon one’s ability/inability to perform the essential elements of one’s job cannot be overstated.  

As time is a commodity worth its span in gold, the assigned case worker or Disability Specialist (or whatever other name or designation given to the person at the Office of Personnel Management who will review one’s Federal Disability Retirement application for identification purposes) must use such time efficiently; and given the volume of cases which the Case Worker must evaluate, analyze and decide upon, the tool of repetition is important precisely because, in the short time-span within the volume of cases to be reviewed, the ability to catch the attention of the reviewer and to highlight the main points of one’s case by shouting out in bold-faced screams, is an effective way of presenting one’s case.  

As paper-presentations go, they are silent vehicles of communication.  However, within the neutral silence of being presented to the reader, it is important to repetitively state (and restate) the main points of a case in formulating one’s narrative in the Applicant’s Statement of Disability.  As with everything else, however, in preparing, formulating and filing a Federal Disability Retirement application under FERS and CSRS, there is a danger point in using the tool of repetition:  too much repetition can make one’s case appear to be “artificial” and conniving.  

You don’t want to file a Federal Disability Retirement application by stating the Federal Retirement application too repetitively because to overstate the Federal Disability Retirement application too many times would be to use the tool of repetition too much in a Federal Disability Retirement application (hope one gets it).

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: The Flexibility of Language

Language is inherently a flexible tool; it is meant to communicate, and while precision in communication is the defining purpose in the use of the tool, often the essence of language must nevertheless be flexible enough to embrace other, correlative concepts. To limit the tool of language often will lead to undermining the very purpose of the use of such language.  

In filing for Federal Disability Retirement benefits under FERS or CSRS, the use of language in preparing, formulating and describing the interaction between the medical conditions and how it impacts one’s job duties, must allow for some level of flexibility.  For example, if certain chronic symptomatologies result in a mis-diagnosis of a medical condition, should a later (revised) diagnosis be allowed to be argued to the Office of Personnel Management after it has been filed?  

The answer to the question is contained in how the Applicant’s Statement of Disability on Standard Form 3112A is formulated.  If one merely lists the diagnosed medical conditions without describing the symptoms, then the language used has restricted the flexibility of post-filing inclusion.  On the other hand, if one combines the various medical diagnoses, but also includes a descriptive discussion of the symptoms, then the answer is likely, “yes”.  The use of language should be one of precision; how one utilizes the tools of language, however, should remain flexible.

Sincerely,

Robert R. McGill, Esquire

Federal Worker Disability Retirement: VA Benefits

As each collateral source of disability benefits must be carefully assessed before utilizing it as a tool in filing for Federal Disability Retirement benefits under FERS & CSRS, so it is with those benefits which rely primarily upon percentage ratings. First, one should note that, if a Federal Disability Retirement application is approved under FERS or CSRS, that there is no offsetting of benefits between Federal Disability Retirement and Veterans benefits.  The two are treated as independent of one another.  

At the same time, however, that does not mean that you cannot utilize a VA disability rating decision in pursuance of an approval from the Office of Personnel Management, when filing for Federal Disability Retirement benefits under FERS & CSRS.  Indeed, there is case-law which states that the Office of Personnel Management, or the Merit Systems Protection Board (if it has been previously denied twice and is appealed to the MSPB) must consider such evidence in the totality of all of the evidence, in making a determination on the approval or disapproval/denial of a FERS or CSRS Disability Retirement application.  

If a VA Rating decision is used, however, in such an application, it must be done with some thought and care.  How to go about using it; what to use; whether to use; those are all discretionary questions which must be carefully considered.  In such cases, it is prudent to seek the advice and counsel of an attorney who specializes in Federal Disability Retirement law.

Sincerely,

Robert R. McGill, Esquire