Disability Retirement for Federal Workers: The Law

The Law is a peculiar concept:  at once, it comprises the aggregation of individual lawyers, judges, clerks; it represents the legislative branch of local, state and Federal governments; it encompasses the buildings where the concept itself is applied, argued and rendered; it is governed by the multiple statutes, regulations, court opinions, etc.

Wittgenstein’s philosophical works on language games is interesting when one views the “law” from such a perspective:  the legal systems has no corresponding anchor in the “reality” of our lives, except in the very self-contained world of our language.  We speak about “the law”, live with its consequences, discuss “rights”, “legal precedence”, “court opinions”, without ever pointing to an object in the universe (except of our own creation, such as documents, buildings, people who are involved in the law, etc.) as a corresponding feature of relevance.  But certain areas of the law have “real-world” consequences.

Indeed, in preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, the connective relevance between the law, the individual, and the medical condition contains a corresponding reality, impact and significance.  The individual who files for such a benefit, the “I” who is the Federal or Postal employee, experiences the very real medical condition; the engagement in the world, as a Federal or Postal employee, is an encounter which occurs in the reality of the day-to-day world.

For some, the “law” is not merely a conceptual construct; it is a basis for which to plan for one’s future, and maneuvering through the morass of this confusing world of reality, virtual reality, complexity of language games, and the burdensome and onerous weight of the legal maze identified as Federal Disability Retirement, requires a reality-check on a daily basis.

Reality as defined by a person who suffers a medical condition, is often more “real” than those who have never encountered the experiential suffering of such constancy of reminders, that to be alive is not merely saying the words; it is a daily struggle through the acute sensing of one’s own frailty.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Government Employees: Stress

“Stress” is always the “problem child” in a Federal Disability Retirement application under FERS or CSRS.  If a Federal or Postal employee is no longer able to perform one or more of the essential elements of one’s job because of an intolerance to a certain level of stress, then certainly it should be considered as a basis for preparing, formulating and filing a Federal Disability Retirement application, either under FERS or CSRS.  However, treatment modalities must be engaged — normally, via a psychiatrist or psychotherapy.

Further, there are always issues which will come about in basing the primary medical condition as “stress” — aside from the fact that it is a generic designation which will often have corollary designations, such as Major Depression, Generalized Anxiety Disorder, etc.  For example, can one define “tolerance to stress” as an essential element of one’s job?  It is certainly an inherent element, implicit in many multi-tasking jobs and ones which require a high level of responsibilities or is subject to timeliness in quotas and work production.  But when issues concerning stresses which arise as a result of “personnel issues” (i.e., interaction with supervisors, coworkers, etc.), then it becomes a “problem-child” which is best avoided, for numerous reasons, including the possibility and danger of having one’s Federal Disability Retirement application denied based upon a “situational disability“.  Concepts and thoughts to ponder, when preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS.

Sincerely,

Robert R. McGill, Esquire

Medical Retirement Benefits for US Government Employees: Entrenchment

Once a Federal Disability Retirement application has been formulated, prepared, streamlined and filed though one’s Agency (or, if separated from one’s agency for more than 31 days, then directly with the Office of Personnel Management), then there begins to exist a sense of “trench warfare” — of waiting, and waiting.  

In response, there is always the frustration of waiting; however, the better course of action is to actively embrace the entrenchment, and to engage in productive actions — of either working as much as possible at the job from which one has filed for Federal Disability Retirement; or to find another, part-time work which can supplement the lack of income during the process.

Entrenchment can be a frustrating time, precisely because it makes one feel as if no progress is being made.  Yet, as waiting is part of the process of filing for, and becoming approved for, Federal Disability Retirement benefits under FERS or CSRS, the art of trench warfare, and the acceptance of entrenchment, in awaiting the decision from the Office of Personnel Management, is the most productive course of action.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: The Law

Technically, the law does not have to be applied at the administrative, agency-level of the Office of Personnel Management.  Let me clarify:  one likes to always think that when an applicant for Federal Disability Retirement under FERS or CSRS is filing for the benefit, that the agency which oversees the application will review it with an overarching umbrella of criteria which is governed by an objective foundation deemed as “the law”.  Thus, in a perfect world, one might imagine an efficient line of technocrats sitting in cubicles, all with a reference book containing the relevant laws governing the eligiblity criteria for Federal Disability Retirement.  But that would be in a perfect world; and since such a perfect world fails to exist, what we have is an arbitrary sprinkling of various personnel, who collectively comprise the Office of Personnel Management, some of whom apply the law well, and some of whom apply the law less than competently. 

To some extent, the arbitrary methodology applied at the agency level is counter-balanced with the threat of a review by an Administrative Judge at the Merit Systems Protection Board, followed by a Full Review at the MSPB, then to be further appealed to at the Federal Circuit Court level; but it is nevertheless sometimes disconcerting that, at the Agency level, this peculiar animal called “the law” is not uniformly applied in all cases, at all times.  And sometimes rarely.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: The “Cover” of an FCE

Most doctors are unfamiliar with the process of obtaining Federal Disability Retirement under FERS or CSRS, but are more often than not familiar with the process, procedures, and correlative headaches associated with Worker’s Comp benefits.  Because of this greater familiarity, there is often an underlying suspicion that comes along with it — that rendering any medical opinion must be accompanied by some underlying justification and “objective” methodology of supporting the medical opinion.  And this is understandable. 

In this day and age of malpractice lawsuits, of questioning every test, procedure and opinion, it is rare that a medical doctor is comfortable and secure in rendering a medical opinion about one’s ability or inability to perform one or more of the essential elements of one’s job, based solely or primarily upon clinical examinations and reviewing of diagnostic results. 

Enter the FCE — the “Functional Capacity Evaluation”.  The FCE provides “cover” for a doctor’s medical opinion, because the doctor can point to an apparently “objective” evaluation — a third party rendering a number of physical tests, exertional exercises, physical capacity movements, etc., which serve to provide a framework from which a doctor can render an “objective ” opinion. 

Why it is accepted that pointing to someone else’s evaluation — as opposed to relying upon one’s own clinical examinations, reviewing one’s history, reviewing diagnostic test results, etc. — is any more valid, is a great mystery.  But if it makes the doctor feel more comfortable, then a person considering filing for Federal Disability Retirement benefits under FERS or CSRS should go ahead and agree to submit to an FCE, if that is what it takes to get the doctor on board.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability: The Disabled Federal and Postal Worker

As with most attorneys, I try to maintain an appearance of detached professionalism. It is my job to provide sound legal advice; to guide the client/disability retirement applicant with logical argumentation, rational perspective, and legal foundations as to the strength or weakness of a case, and to guide my client over obstacles, around legal landmines, and through the briars and thickets of “the law”. I try to remain aloof from the inherent emotionalism which arises from the human story of my clients, because not to do so would be to defeat the essence of why a client hires me: to maintain and retain an objective perspective, in order to provide the best legal advice possible. However, to maintain that wall of professionalism is not always possible.

The human story of the Federal and Postal employee is indeed one of encompassing a juggernaut of loyalty, professionalism, dedication, hard work, and the driving force behind and undergirding the economic might of the United States. Yes, of course the United States is built upon the economic principles of the free market system of the private sector; but the services which the government provides are not accomplished by some faceless or nameless entity; each such service — from the letter carrier through “rain, sleet or snow”, to the Special Agents who investigate and put criminals behind bars; from the border patrol agents who guard our security, to the IT Specialist who safeguards our internet viability — is provided by a competent and dedicated worker. That is why I am often humbled by my clients; because, truth be known, the disability retirement applicants who come to me have come to a point with his or her medical condition, where there is no other choice. It is never a question of dedication or hard work; the Federal and Postal Worker has already proven his or her dedication and hard work through the decades of service provided, prior to coming to me.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: Is there a higher standard of proof for Psychiatric Disabilities?

I am attempting to address the issue of Psychiatric medical disabilities in the context of filing for Federal Disability Retirement benefits under FERS & CSRS, by addressing the issue from various perspectives and angles, in an effort to inform the reader in different ways.  Major Depression, Generalized Anxiety Disorder, panic attacks, Bipolar Disorder — each possess unique traits, characteristics, and symptomatologies and manifestations exhibited in ways specific to the psychiatric condition. 

What is often the case is that, while the Psychiatrist is the medical doctor who is the “expert” on the Psychiatric condition, it is often the psychologist (the “Ph.D”), the Therapist, the Licensed Clinical Social Worker, etc. who has the “personalized” knowledge of the patient, who can provide the descriptive emotional impact, and the specific adjectives which can properly be formulated to reveal and “prove” the impact upon one’s inability to perform the essential elements of one’s job. 

Often, the Psychiatrist is merely the “medication manager” — the prescriber of the psychotropic medications.  Thus, in proving a Federal Disability Retirement case by a preponderance of the evidence, it is often necessary to have both the Therapist, as well as the Psychiatrist, in a joint effort to meet the standard of proof.  Is there a higher standard of proof in a Psychiatric medical condition?  To some extent, the answer is yes — but this is only natural, inasmuch as it requires “more” to have people fully understand the nature, extent, and impact of what it means to have a psychiatric medical condition.  For, at its very essence, who among us can truly understand what it means to be overwhelmed by a psychiatric medical condition?  Only words — descriptive adjectives and emotive-concepts, can draw us closer to having at least some rudimentary understanding.

Sincerely,

Robert R. McGill, Esquire