FERS Disability Law: The MSPB and Consistency of Argumentation

Is it even important, anymore?  Lawyers, of course, are notorious for making alternate arguments, presenting to a Judge or a Jury different explanations, alternative legal theories and justifications, often within the span of a single sentence, and even sometimes contradicting each other.

It is only when the contradiction occurs within the confines of a single theory that the Judge may say, “Wait, counsel — hoooooold on there!  Are you trying to argue X and Not-X at the same time?”  The answer by the clever lawyer: “No, your honor, I am merely pointing out that X could be, and Not-X is also credible, leaving my client to appear not only as an innocent bystander but, moreover, a not-guilty one as well!”

In some forums, that may hold; but in a Federal Disability Retirement case, the only way that inconsistency of argumentation works is when an OPM Medical Specialist says so.  OPM denies cases systematically without any regard to consistency of argumentation.  This is because there is no accountability at the U.S. Office of Personnel Management.  They can review a case, deny it, and it is out of the hands of the Medical Specialist who made the decision.

Then, at the Reconsideration Stage, a completely different Medical Specialist will make a brand new determination, based upon his or her own perspective and viewpoint, and it need not have any consistency of argumentation with the previous decision.

Fortunately, however, when it goes before an Administrative Judge at the U.S. Merit Systems Protection Board, Consistency of Argumentation becomes an important factor.  For, that is one of the primary basis upon which an MSPB Federal Disability Retirement case is lost — when consistency of argumentation based upon the evidence becomes questionable.

Inconsistency is the downfall of most cases at the MSPB; consistency — even with less than adequate evidence of a compelling nature — will often overcome much, and win the case.  The one thing that Administrative Law Judges at the MSPB dislike above all else: Inconsistency in testimony, Inconsistency in evidence, and Inconsistency in the closing argument of an attorney.

Sincerely,

Robert R. McGill
Lawyer exclusively representing Federal and Postal employees to secure their Federal Disability Retirement benefits under FERS from the U.S. Office of Personnel Management.

 

Federal Employee Disability Retirement: Sound Advice

“Sound” is a word which completely changes its meaning when combined with the word “advice”.  Taken separately, independently and in isolation, the word when articulated will not evoke the meaning produced by the combination, but rather, of noises one may hear, a song one is particularly fond of, or the voice of a familiar person, etc.  When placed together with the word, “advice”, it takes on an entirely separate meaning: Of being solid, reliable, truthful, etc.

Of course, one can also argue that it is merely a repetitive tautology, unnecessary and redundant; for, “advice given” should, by definition, be sound to begin with, otherwise it is neither advice nor sound and the duality of the meaning doesn’t add anything one to the other.  But clearly there is such a thing as bad advice, or advice which is “not sound”, and so there is a reason to combine the two words together, for the word “sound” does indeed add something to the word “advice” to combine and make up the concept, “sound advice”.

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, what is often lacking in the field of Federal Disability Retirement is not only “sound advice”, but any advice at all.  Agencies don’t want to disseminate information about Federal Disability Retirement; Supervisors and Managers offer ignorance as an excuse; and even your own Human Resource Office is deliberately unhelpful.

Consult with a Federal Disability Retirement Lawyer and obtain some sound advice, lest the soundness be less than sound and the advice becomes one which is regrettable.

Sincerely,

Robert R. McGill, Esquire

 

OPM Disability Retirement under FERS: Boundaries

We set them for a reason: To prevent future conflicts; to establish clearly when trespasses occur; to allow for the maintenance of compartmentalization in order to preempt overlapping potential conflicts; to teach societal conventions in a safe, artificial context; to demarcate the lines of acceptable behavior, etc.

Boundaries are set in law, in conventions, in neighborhoods, communities, nations and continents. Remember when we learned in Geography Class about the various countries and their disputed boundaries?  Or of early lessons where we were told not to cross the street unless a school safety guard bade us forward?  And what of mental boundaries — of not answering the phone after a certain hour; of boundaries that prevent us from working ourselves to death; of not responding to emails after “work hours” (is there such an animal, anymore?), etc.

And those subtle boundaries we all seem to learn — of conventional behaviors acceptable in society, including invisible ones of “personal space”, of declarations in public both allowable and prohibited; and even of eye contact, how much is offensive, to what extent a “look” becomes a “stare”, etc.

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 may be time to cross the boundaries into considering filing for Federal Disability Retirement.  Medical conditions themselves have no boundaries, know no boundaries and respect no boundaries.  It becomes all pervasive — crossing into one’s personal life, and disrupting one’s career and work life.

Consult with an attorney who specializes in Federal Disability Retirement Law and consider re-establishing those important boundaries that keep in place the lines of sanity necessary for one’s own health.

Sincerely,

Robert R. McGill, Esquire

 

Disability Retirement for Federal Employees: The Cadence of Life

We all “have” one, or at least sense it; and when we do not, it means that the tune to which we march is so coordinated that we don’t even realize that there is one; for, it is only when the song is “out of tune” or the marching footsteps are out of sync that it becomes apparent that the cadence of life is left askew.

There are days when the cadence of life is so perfectly attuned that we need not pause to consider it; then, there are other days when everything is out of tune — when the feet trip over one another, the dexterity of hands become all thumbs and nothing seems to work and the cadence of life has been disrupted.  Most days are somewhere in between upon the spectrum of daily living — of being in tune most of the time but with disruptions and pauses; “pregnant pauses”, at that, which make for embarrassment and disjointed agonies of trepidation and concern.

We say things like, “I feel out-of-sorts” or perhaps a slight cold or “bug” has infected us; but whatever the cause, we know that we must get back into the step of things and march along with the rest of the crowd, lest the band leave us and the quietude of isolation engulfs us with a fear of loneliness.

Medical conditions — whether of illness or injury — can likewise disrupt the cadence of life, and 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, filing for FERS Disability Retirement benefits — to be ultimately submitted to the U.S. Office of Personnel Management — is one step towards regaining that step to bring yourself in cadence with the cadence of life once lost, and now to be found.

Sincerely,

Robert R. McGill, Esquire

 

OPM Disability Retirement Benefits under FERS: Who we are

That is a rather presumptuous title, one might declare; for, it is always the “we” that others presume to know, as opposed to limiting the declarative within the restrictive confines of one’s self, family and surrounding community.

What is the great equalizer that allows for the collective plural pronoun?  Is it television (i.e., do “we” all watch the same shows and thus form a conglomerate of a universal consciousness)?  There was once a time when one could argue that a unity of convention existed — especially harkening back to the days when there were essentially 3 networks to choose from, and where all three were similar in content, thought and approach.

In modernity, is it the Internet?  But the worldwide “web’ is too diverse to narrowly formulate a cumulative effect of similar normative beliefs.

Perhaps that is why society in general is so diverse and fractured; where even a simple consensus amidst a small community cannot be reached, and how geographic differences have become exponentially and irreversibly altered and separated from one another.

Who are we?  Yes, the inversion substitution of the second word with the third makes the declarative into a query, and changes the entire subject matter.  It is, perhaps, both a statement and a question, and neither make sense, anymore.  And so we are left with a singular voice — of a monologue and an aside, or as in a play, a soliloquy, where the character asks the universal question, Who am I?  Am I the collective consciousness of my direct descendent, and does that have meaningfulness, anymore?  Why do we seek answers by purchasing and sending away “DNA kits”, as if the spiral spectrum of cellular anomalies would be able to answer the question which haunts us all?

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, the potential loss of one’s identity within the community of Federal and Postal workers is often the step that is difficult to take.

One’s identity, purpose, drive and dreams are often bundled up into an inseparable conglomeration of work and identity, and to separate from that self-identification is often a difficult venture to undertake.  But the danger, of course, is that you may be forcibly separated if you do not take the steps necessary to protect your identity.

The Agency will ultimately terminate you, and the harassment because you have taken too much Sick Leave, Annual Leave, FMLA or LWOP is inevitable.  Better that you file for FERS Disability Retirement benefits and retain a semblance of who you are, lest the Federal Agency or the Postal Service does that to you unilaterally, leaving you with the question, Who do they think they are?

Sincerely,

Robert R. McGill, Esquire

 

FERS Disability Retirement: Structure and Content

The former provides the form; the latter, the character of the entity.  It is the duality in combination which creates the ability to identify the particular being in an Aristotelian manner — as opposed to the more generalized definition of “Being”.  Without the largest organ of the human body — one’s skin — the “content” of that which separably identifies one individual from another would be lost, and we would all be mere aggregations of various organs not necessarily organized in any coherent way.

Similarly, in any presentation of a written form, it is important to plan the structure and content such that the former allows for coherence and ease of understanding while the latter compels the force of persuasion to impact upon the reader.

In preparing a Federal Disability Retirement application to the U.S. Office of Personnel Management under FERS, it is important to provide both structure and content in order to enhance the chances for an approval at any stage of the process.  For, the Federal or Postal applicant who is preparing an effective Federal Disability Retirement application, to be filed with the U.S. Office of Personnel Management, one must first recognize that such an application is a “paper presentation” to OPM, and thus does structure and content both matter.

To merely focus upon “content” — i.e., medical records; the words in the Statement of Disability (SF 3112A) is to overlook the persuasive nature of the structure of the application itself.  Conversely, to concentrate too heavily upon the structure of the FERS Disability Retirement application — the forms to be filed; the “checklist” of necessary and required paperwork — is to underestimate the power of content.

The two must be formed [sic] in tandem; and a persuasive and powerful legal memorandum that provides both a roadmap as well as content-filled legal citations is a “must” in every FERS Disability Retirement application, and this should be formulated and prepared by an experienced Federal Disability Retirement Attorney who specializes in, and is fully knowledgeable of, Federal Disability Retirement Law.

Sincerely,

Robert R. McGill
OPM Disability Lawyer

   

Attorney for OPM Disability Retirement Claims: Confessions & public domains

Why is it that confessions and public domains represent a relief of sorts, an expiation of self-contained guilt and a sense of “righting” a wrong?  In Catholicism, confession holds a prominent place in the liturgy of that which constitutes a faithful observant; in crime novels, the taunting serial criminal is said to subconsciously “want” to confess to the crime, and leave multiple fingerprints at the scene of each devastating incident in an effort to provide a trail of enough clues to ultimately lead to his or her arrest, thus in effect “confessing” to each of the acts of psychologically diabolical intrigues; and for the ordinary person, there is added stress to the body when one refuses to confess to the public domains of one’s life, those “inner” thoughts that are somehow anathema to the acceptance of behavior in the “outer” universe of public discourse.

That conflict between one’s “true” identity as encompassed by the insular universe of one’s private thoughts and the appearance of one’s character in the public domain — what some would call the hypocritical tug-and-pull of reality-versus-appearance, or of what others would admit is comprised by the true essence of man as opposed to the public face that hides the inner soul.

Whatever the origin, truth or appearance of the matter, what we often discover is that there is, indeed, a certain sense of relief in making a confession within the public domain — whether that is satisfied by talking confidentially to a close friend (which is somewhat of an anomaly in and of itself — of merely confiding with another and creating a conspiracy of two instead of one), making a public pronouncement; “confessing” to one’s spouse; going to a group therapy session and admitting to things in front of that collection of individuals; and other similar acts that somehow expiate the inner turmoil of one’s soul.

For Federal employees and U.S. Postal workers who suffer from a medical condition, such that the medical condition prevents the Federal or Postal worker from performing one or more of the essential elements of one’s Federal or Postal job, preparing an effective Federal Disability Retirement application and actually filing it with the Agency or the Postal Service, then on to the U.S. Office of Personnel Management, is somewhat akin to making a “confession” in the public domain.

Part of the greater stresses of continuing on in this mode of secrecy — of trying to “mask” the medical condition from one’s Federal Agency or the Postal facility for fear of retaliation or harassment — is actually relieved by the “confession” of preparing, formulating and filing an effective Federal Disability Retirement application, filed with the U.S. Office of Personnel Management, whether the Federal or Postal employee is under FERS, CSRS or CSRS Offset, and it is in the “public domain” of the U.S. Office of Personnel Management, or better known by its acronym, OPM, that one finally begins the long and arduous trek of regaining one’s health, by tapping into that traditional method of confessions & the public domains of life’s priestly expiation of the inner sanctum of one’s soul.

Sincerely,

Robert R. McGill, Esquire

 

OPM Retirement for Mental or Physical Incapacity: Expunging the negative

If all negative words were expunged from the universe, would we hold only positive thoughts?  Or, is there an inherent, innate need to recognize and state the negative, regardless?

If you are sitting in your office and a lion walks in, pounces upon your least-favorite supervisor and devours him whole, do you turn to your colleague and calmly say, “He lived a very good life.”  For, in such a universe, expunging the negative has been already accomplished, and such statements as, “Oh, what a horrible thing to have happened!” is no longer allowable, and the law has forbidden such discourse of linguistic negativity.  Is it possible?

Does conceptual thought depend upon individual language, vocabulary and grammar?  Are there tribes and communities where there exists no language that elicits anything but the positive?  What if there was no word for describing an idiot, or a mean, unpleasant person; would we break the new law and immediately recreate such words and refill our empty prescription such that expunging the negative, or any attempt thereof, becomes an activity of futility and exercise of frustration?  Do conceptual constructs exist without words to describe them, or do words and language games impose upon us a reality that would not otherwise exist?

Thus, if a person does something “mean”, and is caught doing it, but we have no vocabulary to describe, confront, or otherwise accuse the person of the wrongdoing, would a shrill scream or a primordial groan be sufficient, or would we have to “invent” a word for the indescribable event?  Or, would the counterintuitive alternative be the case: The event, not having a word to describe it, and thus there would exist no such conceptual construct, therefore means that it does not exist, and thus is not “wrong” because there is no vocabulary or language game to identify it.

Whatever one’s belief on the matter, expunging the negative requires, at a minimum, a deliberative intent to “remain positive”.  That is often easier said than done, especially if you are a Federal employee or U.S. Postal worker who suffers from a medical condition, such that the medical condition prevents the Federal or Postal worker from performing one or more of the essential elements of your Federal or Postal job.  You can certainly attempt to expunge the negative, but the reality is that the underlying medical condition, the harassment at work and the adversarial, hostile atmosphere will continue to exist.

Taking a “real” step – like filing a Federal Disability Retirement application through the U.S. Office of Personnel Management, whether you are under FERS, CSRS or CSRS Offset – is likely a more “realistic” approach, as opposed to relying upon expunging the negative and failing to see the emperor without his clothes.

Sincerely,

Robert R. McGill, Esquire

 

Federal Disability Retirement Law: The voice of constructive criticism

It is rare for the individual to accept constructive criticism; rarer still, to invite and welcome it in any form, whether destructive, constructive or otherwise characterized as “positive”, “negative” or “neutral”.  The fact is that few of us accept any form of it at all, and quickly respond with the rebuttal:  “It’s not constructive”.  But why does it need to be?

Such a reaction assumes an inherent distinction that merely and preemptively places an obstacle to further engagement.  It may well be that, in the end, one can conclude as to the resultant characterization initially presumed, and perhaps even to attribute bad faith, unhelpful motivations and intended cuts.  But all of that should come at the end of the deliberative process, and not as the beginning firewall to prevent further discussion and consideration.

For some reason, the evolution of man has embraced the societal need to spend an exorbitant amount of time defending justifying, counterpunching and placing linguistic walls of protective measures in order to preserve the superficial appearances that we all deny we revere.  The irony of Western Philosophy is that, despite questions repetitively and exhaustively presented – with never any conclusive and satisfactory answers ever provided (like children and their eyes bulging with curiosity in a toy store) – the query never ends and the answers are forever avoided.

This age of modernity, however, has a new wrinkle:  as traditional philosophy has been relegated to insignificance and irrelevance by reducing it as a matter of language games and confusion in our thought-processes, so now the “new” approach is to avoid any substantive questions (and therefore any curiosity to have the answers) and, instead, to preserve and protect our superficial lives and appearances.

The beginning of Western Philosophy warned of this – from Parmenides and Heraclitus, and with the entrance of that irritant vagabond Socrates as related to us through the Platonic Dialogues – “appearances” were to be queried and investigated in order to get to the foundation of Being.  Now, we avoid even the appearance of superficiality in order to protect how shallow we are, and we do this by preemptively and viciously attacking the mere question in order to avoid any criticism at all.  This can obviously have dangerous consequences.

For Federal employees and U.S. Postal workers who want to consider preparing, formulating and filing an effective Federal Disability Retirement application, whether the Federal or Postal employee is under FERS, CSRS or CSRS Offset, the key to submitting a “winning” Federal Disability Retirement application is in being open to self-criticism, whether constructive, destructive or otherwise neutral.

Vigilance in life is always the key, and refining, streamlining and formulating an effective Federal Disability Retirement application should go through a rigorous “vetting” process, such that the questions of Socrates through his dialectical methodology of getting to the “truth” should never be subverted.

Sincerely,

Robert R. McGill, Esquire

 

Civil Service Disability Retirement: The value of properly preparing

Each and every stage of a Federal Disability Retirement process is important to view in the preparation of a Federal Disability Retirement application.  You cannot take any stage of the process in a vacuum; for example, answering SF 3112A, Applicant’s Statement of Disability, in and of itself forces one to consider stages beyond the Initial Stage of the process.

Questions to ask:  Are you bound by your answers without the possibility of further amendments to the narrative delineation you submit?  Can changes, amendments, additions be made even after a CSA/Case number is assigned by Boyers, Pennsylvania and sent on its way to Washington, D.C. for an initial assessment and determination by the U.S. Office of Personnel Management?  What if, in the meantime, a “new diagnosis” is provided, one which has not been included in the original Statement of Disability?

Should the language used in describing one’s medical conditions and the impact upon one’s positional duties and inability to perform the essential elements of one’s job be elastic enough to allow for greater content at a later date, or should it be concise, precise and without room for maneuver or wiggle?  To what extent will prioritizing of diagnosed descriptions be used, either for or against, one’s Federal Disability Retirement, and are there consequences in submitting a non-sequential order of non-prioritized conditions, whether in terms of a spectrum from severity of pain or relevance based upon conditions recognized to be “serious” as opposed to secondary, more exacerbated-based symptoms that are considered corollaries more than central conditions?

To view the world from a perspective of bifurcated and compartmentalized episodes, where each circumstance of life has no impact or connection to any other, results from the insularity of lives we lead.  But reality forces upon us the realization (note the close connection of the two words – reality and realization) that our own mental insularity does not impose a compelling argumentation upon the objective world; instead, we continue to delude ourselves into thinking one way, while the universe goes on and exists with impervious fortitude until the two contradict and ultimately clash.

For Federal employees and U.S. Post workers who try and defy the universe by ignoring the reality of preparing a Federal Disability Retirement application, and further, by attempting to sidestep the methodology of analytical determinations made by the U.S. Office of Personnel Management, the onus is on you:  take care that you consider preparing a Federal Disability Retirement application carefully and with full view as to the value of knowledge and information, lest it come back to haunt you with a denial because you did not foresee the burden of proof.

Sincerely,

Robert R. McGill, Esquire