OPM Disability Retirement System: The Numbness of Inaction

Much of our lives are spent on waiting; waiting upon others to complete their portion of a task as a precondition of doing our part; waiting upon a pet to finish their “business”; waiting in line to purchase an item; waiting online for whatever ethereal micro-data transfer to occur in electronic language akin to bitcoin transactions; and waiting to get beyond puberty, across the threshold into manhood so that one’s folly of actions haven’t damaged too severely the potentiality of one’s existence; and, in the finality of life, upon death and the hereafter.

Thus is youth waiting upon folly to end; middle age, a remorseful reflection upon wasted days; and old age the suffering from the want of yore.  And, of course, there is the waiting hours for those with medical conditions — in doctor’s offices for the verdict of a future or lack thereof; and for Federal employees and U.S. Postal workers, often a meandering loss of direction, waiting upon one’s agency for…often not more than administrative actions and sanctions leading to a “performance improvement plan” (what is generally referred to by its acronym, the “PIP”), and to proposed removals and other sanctions.

Free advice:  Don’t ever wait upon an agency to do its part in any right manner; always act without regard for the agency’s expected answer.  Otherwise, the wait will simply result in a crisis of time.  For Federal and Postal employees who suffer from a medical condition, such that the medical condition prevents one from performing one or more of the essential elements of one’s positional duties, waiting upon an agency for anything is but mere folly regurgitated from the days of one’s youth.

Sitting around bemoaning the lack of action by an agency, is tantamount to being a middle-aged crumple of impotence; and expecting that an agency will be patient during one’s days of trials is like being an old man in a nursing home waiting upon death.  If you haven’t figured it out by now, agencies and the U.S. Postal Service do what they want to do, when they decide they want to do it, whatever the “it” is.

Filing for Federal Disability Retirement benefits through the U.S. Office of Personnel Management, whether the Federal or Postal worker is under FERS, CSRS or CSRS Offset, is a duty requiring affirmative action by the Federal or Postal employee, where the onus is entirely upon the Federal employee or the U.S. Postal worker.

As waiting is merely a time of inaction, so the numbness of sitting around waiting upon others occurs as a result of atrophy of life; and the numbness of inaction will merely magnify in the loss of mobility for the future, where a Federal or Postal worker sits with an expectation of a future void, until such time as one is prompted into an awareness that it is action which leads to consequential substance, and not the inaction of inertia.

Sincerely,

Robert R. McGill, Esquire

 

Disability Retirement for Federal Government Employees: Logical Fallacies

The problem with logical fallacies is that the people who make them rarely recognize such errancy (otherwise they wouldn’t repeatedly make them), and further, are often the same people who refuse to recognize them even if it is kindly pointed out.

For example:  In a Federal Disability Retirement case, when the doctor’s report clearly and unequivocally points out that the Federal employee’s medical condition is “permanent”, one would logically infer from such a statement that the condition therefore will last a minimum of 12 months (the legal requirement in a FERS or CSRS Federal Disability Retirement case), and therefore would satisfy the legal requirement concerning that particular issue.

However, the U.S. Office of Personnel Management will often fail to make such an inference, and claim that the legal requirement that one’s medical condition must “last a minimum of 12 months” has not been satisfied.

Now, one essentially has three (3) choices in responding to OPM’s claim at the Reconsideration Stage of the process (or, if made a second time with a denial at the Reconsideration Stage, then to the Administrative Judge at the MSPB):  (1)  Ignore the logical fallacy, (2) Argue that OPM has made the logical fallacy and failed to make the correct inference, or (3) Have the issue restated in any updated medical documentation.

Of the 3, the last is probably the preferable, if only because one should expect that any failure to recognize such an obvious inference will likely reoccur again within the same organization (the U.S. Office of Personnel Management), and therefore clarity of statement (or restatement) would be the most effective course of action.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Medical Disability Retirement: Legal Sufficiency Test

In preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS, one is required to meet the legal sufficiency of the eligibility criteria as set forth by statute, expanded by regulations and clarified by cases which have come before Administrative Judges at the Merit Systems Protection Board.  

Whether one meets the legal sufficiency test in the presentation of medical and other supporting evidence, is the area of disputable territory, which is why the entirety of the administrative process has been put in place.  From the perspective of the Office of Personnel Management, they are mandated to review each case and make a determination as to legal sufficiency.  Often, however, they are not concerned with, ignore, or otherwise remain oblivious to, the legal standard of proof, of whether the applicable criteria has been met by a standard of “preponderance of the evidence”. Indeed, in many denial letters, they have instead indicated a much high standard of review, including whether the evidence is “compelling”, or whether the medical condition “prevents the Federal or Postal employee from coming to work altogether”.  

Unfortunately, the first two (2) stages of the process — the initial application stage, then the Reconsideration Stage — is reviewed by the Office of Personnel Management, with the potential for mis-application of the proper burden of proof.  

Legal sufficiency is not a standard which is applied until it enters into the “legal arena” — that of the Merit Systems Protection Board before an Administrative Judge.  Because of this, it is often a good idea to cite legal opinions in order to “apprise” the Office of Personnel Management of the applicable legal criteria, and to remind them of what extent of evidence meets the legal sufficiency test.

Sincerely,

Robert R. McGill, Esquire