FERS Medical Disability Retirement: Conceptual Constraints

Within the world of biology, the distinction between an unicellular eukaryote and a prokaryote is one defined by the absence of a distinct, membrane-bound nucleus.  The latter is thus without a homunculus, constrained by a parameter and protected as the central seat of control.  One would assume that, because of this, the former would be easier to genetically manipulate, while the former would be more difficult.

Similarly, while widespread dissemination of responsibility and delegation of authority may have the positive effect of getting much work done, the corollary negative impact may also become uncontrollably representative of an organization:  loss of qualitative control.

Upon reading a denial letter from the U.S. Office of Personnel Management, whether under FERS or CSRS, from the U.S. Office of Personnel Management, one may begin to suspect that you are dealing with a prokaryote-type of entity:  for anything may be said, and what may be stated may not even remotely be the law of the case.

Being unconstrained by a membrane may have its advantages for survival; being unconcerned by the constraints of language will have its definite impact upon a Federal or Postal employee attempting to obtain Federal Disability Retirement benefits from the U.S. Office of Personnel Management: confusion for the Federal or Postal Worker, or worse, surrender and retreat.  But there are ways to counter such an untethered approach — but one which must use all of the legal tools available to the Federal or Postal applicant.

The key is to build a membrane and change the prokaryote into an eukaryote.  In order to do this, however, one must know the law, apply the law, and force the law upon the organism — thereby effectuating the genetic modification.  Thus does science, logic and law coalesce into a unified, rational whole.  Go figure.

Sincerely,

Robert R. McGill, Esquire

 

Postal and Federal Disability Retirement: Denials

Denials come with an unexpected force and impact; for, in every Federal Disability Retirement case, there is the expectation that the application itself merits close scrutiny and a belief that a proper review will persuade the OPM trier of facts that the Federal Disability Retirement application should be approved.

Indeed, from the perspective of the applicant, who is suffering from the medical condition itself on a daily basis, it is often a reaction of disbelief and anger when a denial is issued by the U.S. Office of Personnel Management.  But one must understand that this administrative process identified as “Federal Disability Retirement” is one which is not an “entitlement”, but rather, an adversarial process where proof, argumentation and persistent appellate procedures must be invoked at every step of the way.

That is why, in preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, one needs to always prepare a case as if it will ultimately go to the U.S. Merit Systems Protection Board.

Further, it is understandably disappointing to read an OPM denial and find that the OPM case worker does not even mention or refer to much of the substantive medical documentation submitted, but instead blindly (and generically) issues a template of tired old phrases, such as, “You did not meet the legal criteria“; “The evidence did not show that…”

With hundreds of cases assigned to each OPM Case Worker, one must understand that denials are rarely personal; but in responding to a denial from OPM, one must be diligent, forceful, and approach it with the use of all legal tools available.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement for Federal and USPS Workers: The Cost of Doing Nothing

The Office of Personnel Management has been sending out a number of decisions, and many have been denials.  They seem to come in batches; whether by coincidence, or in systematic fashion, OPM has tended in recent months to send out denials which fail to explain, leaving aside any concept of “discussion“, the basis of their denials.  

The irony of having a section entitled, “Discussion”, then merely delineating a regurgitation of the “applicable criteria to be eligible for Disability Retirement benefits“, then making a conclusory & declarative statement somewhat in the form of:  “You do not meet criteria X and Y” is hardly a “discussion” of the issues.  

Moreover, even in the denials which appear to be lengthy is the number of sentences, paragraphs or pages, the content is devoid of any substantive discussion of the issues.  It is more often simply a reference to a doctor, without any rational basis given as to what is lacking, but merely ending with a statement of conclusion, saying, “No objective medical evidence was provided,” or “The medical evidence does not show that…”  

One would expect that a logical structure of reasons would be provided, but such an expectation would fall short of what actually occurs.  The real problem is that, in reading such a denial letter, one doesn’t know where to start, what to answer, or what additional information needs to be submitted.  Thus, you must “read between the lines”.  

The cost of doing nothing is to get a further denial; that is simply not an option.  The best option is to reinforce what is already there.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Reconsideration Response — Refrain from Reflexive Response

When a denial is received for an Application for Federal or Postal Disability Retirement benefits under FERS or CSRS, sometimes they are replete with comical “errors” and omissions.  Thus, anywhere from mistaken identities, to wrong job identifications, to the wrong doctors named; from medical conditions which were never claimed, to diagnostic tests and surgeries which were never submitted; these are just some examples of errors and omissions which one might find in the body of the “Discussion” in an OPM denial letter.

The reflexive temptation is to put together a string of harangues and accuse the OPM Representative of incompetence, incoherence, ineptitude, and inability to perform the essential element of his or her job.  Such a reflexive response would be the wrong tact to take, however.  One should refrain from making such “ad hominem” attacks.

Instead, the better way to go about it would be to politely point out the major errors, the omissions of any medical or other substantiating documentation, in an understated way, then to argue the main points that need to be argued to rebut the denial letter.  While the former methodology may make you feel good, in the end, it is an approval which will prove to be of lasting elation.

Sincerely,

Robert R. McGill, Esquire

FERS Disability Retirement for Federal and USPS Workers: Selective Reality

The problem with an unrepresented Federal or Postal employee who files for Federal Disability Retirement benefits from the Office of Personnel Management, is that because this is the one and only encounter with OPM, any response from them will be a narrow, one-dimensional perspective.

Thus, if the Office of Personnel Management denies the Federal or Postal disability retirement application, such a denial, the manner in which it is written, the content, the apparent delineation of “the law”, and the loosely-stated declarative statement while vaguely referring to the insufficiency of one’s medical documentation, will result in a narrow perspective, in a vacuum of reality created by OPM.

OPM’s denial letters are notorious for its selective reality.  Such selective reality will completely ignore all medical statements which seem to support the OPM disability retirement application, while selectively focusing upon every tidbit of medical notations which favor the denial.

Thus, be careful if on any given day, you arrive at the doctor’s office and the doctor asks you how you are feeling, and you respond with, “I’m feeling pretty good, today.”  Such a conversational statement may nullify the fact that, in its proper context, what the reality of your statement meant to convey was:  “I’m feeling better today in comparison with yesterday and the entire month before, but in no way could I perform my job even today.”  But OPM will selectively pick upon that one statement, and run with it — to a complete and total basis in denying your Federal Disability Retirement application under FERS or CSRS.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement for Federal and Postal Employees: Causality

Hume’s exposition on causality is both interesting and instructive in terms of looking at the validity of an argument.  In this instance, we are obviously making an analogy with how the Office of Personnel Management, and to a larger degree, people in general who make a causal argument and declare that it is a ‘valid’ argument.  David Hume’s argument on causality essentially states that there is nothing in the world other than two independent events (which we merely deem as ’cause’ and ‘effect’), which we repetitively witness.  However, because there is no ‘meta-factor’ beyond the independent events, what he terms as a ‘necessary connection’, therefore there is no certainty beyond a repetition of events.  Thus, Hume argues that we actually never see anything ‘new’ — no ‘necessary connection’ between cause and effect, in the 100th time we observe an event, any more than the first time. 

This is, indeed, analogous to how the Office of Personnel Management views rendering a denial in a Federal Disability Retirement application under FERS or CSRS. Look at the lack of logical argumentation in an OPM denial.  It is a series of independent events, delineated and categorized in some semblance of chronological order (perhaps the order that the OPM Representative read the medical documentation):  Dr X says this; Dr. Y says that; then the effect:  “The medical evidence fails to meet the criteria for eligibility for Federal Disability Retirement.”  Like Hume’s description of the world, there lacks a ‘meta-factor’.  Whether the stated causes have any connection (see the analogy?  It is like Hume’s reference to “necessary connection”) to the “effect” is entirely irrelevant.  Events do not need to justify the decision.  It is acceptable to merely refer to medical documents and then come to a conclusion, without any need to justify the validity of an argument.  But, then, that seems to be how most people in the general population formulate an argument these days — based upon how one “feels”.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement: Logical Argumentation

Reading a denial of a Federal Disability Retirement application under FERS or CSRS from the Office of Personnel Management is often a fascinating exercise in attempting to imply, infer, “read between the lines”, assume and presume what the basis of the denial is/are.  Just as gathering a 6-inch thick set of medical records and attaching them to a Federal Disability Retirement application does not constitute a logical, persuasive argument that you are entitled to Federal Disability Retirement benefits, conversely, referring to submitted medical documentation and acknowledging their existence, then concluding:  “You have not submitted sufficient medical documentation to be eligible for Federal Disability Retirement benefits” — does not constitute a sufficiently informative denial.  As the applicant must meet the legal criteria, the Office of Personnel Management has a duty and obligation to review it fairly, evaluate it objectively, and apply the laws and legal criteria.  If OPM decides that the application does not meet the legal criteria, then OPM has an obligation to provide a sufficient explanation that is clear, cogent, and logically persuasive.  Anything less would not meet the statutory obligation that OPM is under.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement: The Problem with Answering an OPM Denial

A denial of a Federal Disability Retirement application under FERS or CSRS from the Office of Personnel Management always leaves the applicant and his or her attorney at a disadvantage.  This is because OPM is never answerable to any resulting consequence of a denial; at least, not directly.  Think about it this way:  In the initial application, if an OPM Disability Retirement application is properly prepared and submitted according to, and within the parameters of the laws governing Federal Disability Retirement, one would assume that it should be approved.  If it is denied, then the case is sent to the “Reconsideration” division of OPM — meaning, to another person. 

Now, taking it out of the hands of one OPM Representative into the hands of another, has both the good and the bad mixed together:  the good is that it will now be reviewed afresh by someone else; the bad is that the person who denied the original application has no further responsibility for the denial.  This is true, incidentally, with respect to the Reconsideration Stage of the process; if a second denial is issued, the person who issues the second denial also has no responsibility to answer for the basis given in the denial. 

The “light at the end of the tunnel“, however, comes when it is finally taken up by an Administrative Judge at the Merit Systems Protection Board.  While the AJ cannot hold anyone at OPM responsible for a denial which never should have been, at the very least, when the AJ reviews the record and finds that the previous denials were unfounded or rationally without legal foundation, an immediate recognition of a baseless denial can help the applicant.  Ultimately, rationality and legal integrity has a chance to prevail; it sometimes takes more than one bite at the apple.

Sincerely,

Robert R. McGill, Esquire

Federal and Postal Disability Retirement: OPM & the Template Approach

Starting from a template is not necessarily a bad thing.  One should not have to repetitively reinvent the wheel in any endeavor.  It is when one uses a template blindly, without carefully reviewing and evaluating the facts and circumstances of a particular case, that the problem arises. 

Each case in a Federal Disability Retirement case under FERS or CSRS is unique, not so much because a specific medical condition is unique (although, obviously, it is “unique” to the individual suffering from it); and not so much because of the type of job that a particular Federal or Postal employee works in.  Rather, the uniqueness of the particular case normally arises in the combination of the two — the symptoms manifesting from a particular medical condition, and how it impacts the ability or inability to work at a particular kind of job. That, in essence, is the core of a Federal Disability Retirement case under FERS or CSRS — the combining and clashing of the medical condition with a particular kind of Federal or Postal job, and the incompatibility between the two.  How the Office of Personnel Management reviews that combination is what is often at issue — and, because templates are generic treatments without regard to particular and unique facts and circumstances, that is precisely the reason why they fail to address the uniqueness of a particular case.  (Next:  How OPM’s template is often predictable and ultimately ineffective in a Federal Disability Retirement case)

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirements: Groundless Denials of FERS/CSRS Disability Retirement Applications

One would assume that when a disability retirement application has been reviewed by someone at the Office of Personnel Management, and a decision of denial has been rendered, that such a decision will — at a bare minimum — be based upon a legally sufficient ground. In other words, that the legal criteria asserted in the decision will be correctly delineated.

Unfortunately, that is too often not the case. In fact, many of the legal claims asserted by the Office of Personnel Management have no justification in law, and are exaggerated at best, and a mis-statement of the applicable laws, at worst. But for disability retirement applicants who are unrepresented, the individual may well read the decision, believe what the decision states, and become convinced that the burden is too onerous to overcome, and fail to request reconsideration in the case, discouraged that he or she will never be able to meet the legal burden imposed in the initial denial.

Thus, for instance, when an OPM denial letter states that there was “no evidence showing hallucinations, delusions or other symptoms of psychosis,” and therefore the disability retirement is denied, one might conclude: “Since I don’t have those conditions, I must not be qualified for disability retirement.” Wrong! Or, when OPM says: “There was no evidence of hospitalization or the need for such treatment,” one might become completely discouraged and say, “Oh, disability retirement requires that my medical condition is such that it requires hospitalization in order to qualify, and therefore I cannot qualify“. Wrong! Such overstated and exaggerated claims by the Office of Personnel Management are commonplace, and unnecessarily place a burden upon disability retirement applicants through mis-statements of the law. Never allow an OPM mis-statement of the law to persuade you to abandon your case; instead, seek competent legal counsel to explain what the law of disability retirement really is, and proceed from here.

Sincerely,

Robert R. McGill, Esquire