Federal & Postal Disability Retirement: Inconsistency and specificity

The two legal standards dominant in a Federal Disability Retirement case must often be alternatively applied depending upon the nature of the positional duties involved.  It may be appropriate to speak in terms of “functional capacities” and specified duty restrictions when it comes to physical work that involves descriptive mechanical work — i.e., being able to lift a certain amount (for most Postal employees, up to 70 pounds); bend, lift, stand repetitively throughout the day; or even in climbing ladders, remaining balanced while working on a scaffold; utilizing power tools, etc.

For more cognitive-intensive, focus-driven administrative/executive positions that require sustained and sedentary periods of consistent application, the more generalized standard as pronounced in Henderson v. OPM may be better argued — one of inconsistency and incompatibility between the job duties as a whole because of the cognitive dysfunctioning that results from the high distractibility of pain, lethargy from Major Depressive Disorder or paralyzing panic attacks from Generalized Anxiety Disorder, etc.

Or, take the work engaged by an Air Traffic Control Specialist — there is an admixture of the “inconsistency standard” as well as “specific” elements where sustained focus and concentration is reliant upon the safety and lives of hundreds, if not thousands, of people.

The two legal standards in a Federal Disability Retirement case are not mutually exclusive, and they need not be argued so before the U.S. Office of Personnel Management and beyond, at the U.S. Merit Systems Protection Board (M.S.P.B.).

Medical conditions need to be described in a “nexus-form” to the positional demands of a Federal or Postal job, for ultimately that is what a Federal or Postal employee who is filing for Federal Disability Retirement benefits is retiring from — a position description, and not necessarily the actual job that one is working at.

The medical condition that the Federal or Postal employee is suffering from may both be inconsistent and possess descriptive specificity which require restrictions; and, conversely, it may be that certain elements of one’s Federal or Postal position description may require restrictions, leading to the conclusion that the position as a whole is inconsistent with the suffered medical conditions precisely because of the specific, 1-to-1 ratio of “essential element” to “identified medical condition.”

Thus can both standards be argued and used as a sword against OPM”s argument that “specific elements” need to be shown in each and every case, which is simply NOT the case.

Sincerely,

Robert R. McGill, Esquire

 

CSRS & FERS Medical Disability Retirement: Regarding dogs and books

They are the two default positions to happiness, loneliness and sorrowful days that can only be solved along with a cup of hot chocolate.  What is amazing and somewhat perplexing is that, as to the former, the very fact that one species of life can have such a close and interacting relationship with another existent species is an incomprehensible truism steeped in beauty.

History has established that people and dogs maintain a unique synchronism that goes beyond mere parallel existence.  We can walk among birds and hear them chirping; jog past a rabbit that freezes, then scurries away; and even have a suspicious but interactive peace accord with squirrels, cats and gerbils; but of a dog that awaits your every move and watches with loyal love, there is a special relationship and bond that can never be described by words alone.

As to the other elements in the twin concepts of the title above, what can one say?  Books are the products created by the uniqueness of language; the compendium of complexities amalgamated by first a letter, then a word, then words within sentences that elongate into paragraphs; then, slowly, page by page, they form to create a work – of fiction, non-fiction, a mixture of both, either or neither as in crime novels, “true life” extracts and the admixtures of imagination, images, memory and reminiscences.

Books allow for loneliness to dissipate when betrayal and disloyalty have reared their ugly heads; when backstabbers and plain meanness whips the urns of ashes deadened with ancestral grief upon a rainy night of groans and tears wept upon what could have been; and then we can get lost in a good book and feel the air being disturbed by the wagging tail of a dog so loyal.

Regarding dogs and books – there is no replacement for such a duality of life’s mystery.

For Federal employees and U.S. Postal workers who suffer from a medical condition, such that the medical condition may necessitate filing an effective Federal Disability Retirement application through the U.S. Office of Personnel Management, whether the Federal or Postal employee is under FERS, CSRS or CSRS Offset, the feeling that the “world” has betrayed because the Federal agency or Postal Service is unwilling to accommodate and “work with” your medical condition is a true enough fact; but don’t let that fact of disloyalty dissuade you from recognizing that there are still entities out there who remain loyal – like your dog (if you own one; and if you don’t, you should get one).

And also remember that the goal of getting OPM Disability Retirement benefits is tantamount to reading a good book – it allows you to reorient yourself and regain the proper perspective by allowing you to focus upon the priorities of life – of your own health.

People often think that life is complex beyond endurance these days; but in the end, a loyal dog and a good book are about all that one needs to attain happiness – and, of course, one’s health, which is the primary reason why fighting for one’s Federal Disability Retirement is important, so that you can focus upon maintaining your health, so that you can sit with a good book beside a loyal dog: the key ingredients to ecstatic joy itself.

Sincerely,

Robert R. McGill, Esquire

 

OPM Disability Retirement Attorney: Out to Pasture

There is a natural proclivity by the previous generation to resist the transference of authority before its designated time; the conflict arises not as to the inevitability of such change, but rather as to the appropriate context, procedural mechanisms instituted, and the care and sensitivity manifested.  And that is often the crux of the matter, is it not?

The brashness and lack of diplomacy and propriety; the insensitive nature of youth in trying to take over before paying one’s proper dues; and a sense that the young are owed something, without paying the necessary price through sweat and toil.  And the older generation?  From the perspective of the young, they are often seen as intractable, unable to face the reality of the inevitability of generational transfer; the ideas once seen as new and innovative are mere fodder for laughter and scorn.

Such treatment of those on their “way out” are often given similar application for Federal employees and U.S. Postal workers who show a need to file for Federal Disability Retirement benefits through the U.S. Office of Personnel Management.  Such employees are viewed as those being “put out to pasture”, and as something less than human, partial in their worth, lacking of completeness, and needing to be shoved aside to make room for the healthy and fully productive.

Resentment often reigns; the insensitivity of the approach of agencies in their bureaucratic indifference is often what prevails; and once the exit is complete, those who were once the warriors and conquerors of yesteryear, are mere vestiges of forgotten remembrances of dissipating dew.

Always remember, however, that there is another perspective than the one which is left behind.  For the Federal or Postal employee who is put out to pasture by one’s agency, there is new ground to break, fresh challenges to embrace.  The pasture that one enters need not be the same one that the former agency considers; it is the one which the Federal or Postal Disability Retirement annuitant plows for himself, and whatever the thoughts and scornful mutterings of that agency left behind, they now have no control over the future of the Federal or Postal employee who has the freedom to follow the pasture of his or her limitless dreams.

Sincerely,

Robert R. McGill, Esquire

 

OPM Disability Retirement Attorney: Social Justice

Concurrent litigation entanglements occur often enough; if one has the capacity and ability to compartmentalize life, such multi-adversarial offensives can be effectively coordinated.  At the same time, however, it is important to recognize the folly of spreading oneself too thin; history confirms the defeats suffered at the principle of too much, too soon, as in Germany’s incursion on the Eastern Front while taking on North Africa and the entrance of the United States into a reluctant war.

Strategies of logistical considerations, as well as pragmatic considerations of finances, must always be a factor; thus, for Federal employees and U.S. Postal workers who face a future with an ongoing medical condition which prevents one from performing one or more of the essential elements of one’s job, consideration should be given to concurrent filings.

If an injury or medical condition is “work-related“, there is nothing wrong with filing for OWCP/DOL benefits, while at the same time filing for OPM Federal Disability Retirement benefits.  If both are approved, the Federal or Postal employee has the option of choosing to activate one, and allowing the other to be approved but remain passive.

Filing for Social Security Disability benefits, for those Federal and Postal employees under FERS, is a mandatory requirement during the process of filing for OPM Disability Retirement, anyway, so obviously the concurrent nature of filing is a necessary given.

When considering more far-reaching litigation entanglements, however, such as filing an EEOC Complaint potentially leading to a trial in the Federal Courts, pause should be given, if only because of the statistical disadvantage and high cost of such litigation.  A 2009 WSJ Article found that EEO discrimination lawsuits fared worst in statistical analysis in wins-to-losses ratio, and more recent studies do not provide greater encouragement.

While the recent focus upon the Pao v. Kleiner Perkins case would seem to highlight such statistical disadvantage, at the same time, one must recognize that the particular court case was a gender discrimination case filed and tried in state court, not in Federal Court, and each case reflects the complexity of the uniqueness of a particular set of facts.

The point here, however, is that while statistical analysis certainly can be skewed based upon a multiplicity of complex factors, for Federal and Postal employees who are considering filing for Federal Disability Retirement benefits, a pragmatic assessment should be made which asks, at a minimum, the following:  Do I want to be involved in a protracted litigation with my supervisors, agency and coworkers?  What is the purpose of my filing for Federal Disability Retirement?  Is the cost-to-benefit analysis sufficient in justifying litigation?  What is my definition of “Social Justice”?

For Federal and Postal employees, filing for, and obtaining, Federal Disability Retirement benefits is a practical exit from one compartmentalized stage of life; there is awaiting the next stage, of which Shakespeare reminds us all.

Sincerely,

Robert R. McGill, Esquire