OPM Disability Retirement: Logistics, Strategy and Substantive Paradigm

In any and every endeavor, whether on a large scale or of little consequential impact, a tripartite approach must be devised:  the logistics of the case (the “how” and the mundane mechanics of procedural actions involved); the strategy of it (the methodological plan of action, involving the choice of which issues to prioritize and tackle, etc.), and finally, the substantive paradigm of the case.

It is often the latter which is overlooked, precisely because everyone is always too busy trying to immediately figure out what to do and how to do it.  In a pragmatic sense, the logistical plan and the strategic outlay are crucial in any legal action; as a persuasive foundation for winning, however, devising a substantive paradigm of a case may be the essence of a winning path.

In preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, the Federal or Postal employee who encounters the myriad of voluminous standard forms to be filled out, the need to obtain medical reports and records, and to simply survive the morass of administrative and bureaucratic requirements, leaves one merely attempting to stay afloat in the logistical mandates — of trying to satisfy all of the Agency demands and requirements.

Additionally, to even contemplate devising a “strategy” of how to go about proving, by a preponderance of the evidence, one’s Federal Disability Retirement case, becomes an obstacle and a burden, especially when one is having to deal with the medical condition and treatment of that condition concurrently with the stress of trying to complete a Federal Disability Retirement application.

As for the substantive paradigm of a case?  That may be the customary casualty of a Federal Disability Retirement case — that coordination of all issues, of the medical, the position one occupies, the persuasive legal argumentation, in a compendium of interconnected sources, arguing to the U.S. Office of Personnel Management the what, where, why and irrefutable how, in a Federal Disability Retirement application.

Sincerely,

Robert R. McGill, Esquire

Federal Disability Retirement: Prospective Affirmation versus Retrospective Correction

Moving forward with the right tools is generally more effective than looking back and trying to correct deficiencies; thus, the age-old adage of being penny wise, pound foolish applies; and in preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, it is important to make a determination early on to clearly assess the strength of a case, the needs required to optimize such strengths, and to obtain assistance where necessary.

As to an objective assessment of a case:  one is normally not the best evaluator in analyzing the strength or weakness of one’s own Federal Disability retirement case.  This is because of a self-evident principle operating in each such Federal Disability Retirement case:  the subject who suffers from the medical condition cannot objectively evaluate from a third-party’s perspective the viability of a case in terms of proving by a preponderance of the evidence the coherence and compelling nature of the evidence to be presented.

Most believe that his or her case is a “slam-dunk”; few in actual reality ever are.  To get denied by OPM at the First Stage; then at the Reconsideration Stage; then to go pro se before the Merit Systems Protection Board; then to obtain a lawyer — while it is good to get a lawyer at any stage of the process — is it wise to attempt a retrospective correction of one’s mistakes?  At what stage does it become too late?  Where in the process does “correction” override “mistakes”?  Compare that to a prospective affirmation of one’s inadequacies — that it is difficult, if not impossible, to objectively evaluate one’s own case; that an effective compilation and presentation of a Federal Disability Retirement case is necessary in order to win in a Federal Disability Retirement case; and that providing a legal citationin support of one’s case is an essential element of a compelling case:  combining it all, it would seem that being wise for the pound is preferable than being foolish for the penny (to make an inverse adage applicable).

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Workers: Sequence of Procedural Requirements

There is a specific reason why the benefit identified as Federal Disability Retirement, whether under FERS or CSRS, exists.  It is to allow for an early retirement for an individual who has met the minimum eligibility criteria — of being a Federal or Postal employee , and having at least eighteen (18) months of Federal Service under FERS, or five (5) years under CSRS.  That is the basic eligibility criteria.  

Those who meet that minimum criteria, have a “right” to take the next step: One must prove, by a preponderance of the evidence, that one is eligible for the benefit, by proving (generally speaking) that as a Federal or Postal employee, one cannot perform one or more of the essential elements of one’s job, or any similar job; that the agency is unable to “accommodate” the Federal or Postal employee’s medical condition (and the term “accommodation” is a term of art, such that there is a particularized and narrow definition of how that term is applied in Federal Disability Retirement law), and that the medical condition will last a minimum of 12 months.  

Beyond those sequential procedural steps, is a wide and fairly complex array of legal, medical and practical considerations which must be viewed, before proceeding with a Federal Disability Retirement application.  Does the Federal or Postal employee have a supportive doctor?  Will that doctor be willing to write a narrative report expounding and delineating the factors and addressing the issues which need to be discussed?  

As with most things in life, it is important to identify, recognize and approach a Federal Disability Retirement application in a logical, sequential manner, such that one does not waste time, effort, and a reserve of hope in going down a path which may not be applicable to one’s particular circumstances.  Advice and counsel from an OPM Disability Attorney who can explain the process may be helpful in this endeavor.

Sincerely,

Robert R. McGill, Attorney

Postal and Federal Disability Retirement: Systematic Approach

It is clear from reviewing many of the Federal Disability Retirement applications which have been denied, either at the initial application stage of the process or at the Second, Reconsideration Stage of the process, that the failure to apply a systematic approach in preparing, formulating and filing the Federal Disability Retirement application was entirely lacking.  

The lack of systematically compiling and formulating the evidence to meet the legal standard of “preponderance of the evidence” in a Federal Disability Retirement application under FERS or CSRS can be fatal to one’s efforts.  For, ultimately, it is the nature of the presentation and how it is compiled, delineated and orchestrated which provides for the effective implementation of such an endeavor.

Take the following example:  a “flail” is a farm instrument used for threshing, and in the hands of an experienced user of such equipment, it was an effective tool and implement which systematically cleared a field when in the hands of one who had the experience, knowledge and practical application of such a tool.  Used in modern linguistic terms, the concept, “He was flailing his arms” has come to mean that a person is waving and thrashing about in a manner which lacks harmony, elegance or purposeful end — in a wild and wasteful effort of energy.  

The deliberative approach in preparing and formulating any endeavor in life is an encompassing use of a particular tool in a proper manner, for the purpose for which it was created, to bring about an end for which it was designed, and to preserve the energy necessary to bring about the end in mind.

Preparing, formulating a filing a Federal Disability Retirement application under FERS or CSRS is to use the flail properly, and not to flail about.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Government Employees: The Approach

In the busy lives we lead, it is often a temptation to simply adopt a generic approach to each event, for purposes of ease and convenience.  It is easy to think that most distinctions in life do not contain relevant differences — at least not enough to make much of an impact.  

In preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS, it is certainly useful to utilize the paradigm of successful past filings, and there is enough information “out there” by multiple attorneys and “specialists” (whatever that may mean) to gather a composite model of a Federal Disability Retirement application which has a good chance of becoming approved.

However, one must always remember that each individual case is unique because of the multiple factors which must interact, and the uniqueness of the approach must match and be tailored to the distinctions which are inherent in each case.  Not only are the medical conditions different; the job description, the essential elements of a job, the symptoms which manifest themselves; whether the Federal Disability Retirement application should be based upon a single medical condition or a combination of multiple conditions; whether psychiatric conditions are primary or secondary; the intersecting impact between the medical conditions and the essential duties of one’s job; and, beyond all of this, if a Federal Disability Retirement application is denied at the First Stage of the process, or even at the Reconsideration Stage, the methodology and approach of responding to such a denial is important.  

Generic approaches are sometimes useful, but in preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS, it is important to recognize that most distinctions do in fact make a difference.

Sincerely,

Robert R. McGill, Esquire

Medical Retirement Benefits for US Government Employees: The Issue of Discretion

A Federal or Postal employee who is filing for Federal Disability Retirement benefits under FERS or CSRS may also be undergoing concurrent disciplinary proceedings, or engaged in corollary grievances, EEO Complaints, or involved in a lawsuit in a separate forum, either in the Federal Circuit Courts or at the Merit Systems Protection Board.  

In either event, the question often comes to the fore as to whether such collateral issues should be brought up in the Applicant’s Statement of Disability (SF 3112A) or perhaps in a legal memorandum or cover letter which argues the merits of the case, the legal basis for eligibility, etc.  The answer to the question as to whether, how and where is one of discretionary choice, and there is never a singular answer.  

A separate question to be asked of one’s self (with no obvious answer) is whether or not, if the applicant who is filing for Federal Disability Retirement benefits under FERS or CSRS does not bring up the fact of a collateral issue being litigated in a separate forum, will the Agency bring it up and discuss it in a way detrimental to the Applicant, and further, will the fact that the issues was not brought up make it appear as if the Applicant is somehow trying to hide the issue?  As with all such hypotheticals, the answer to all of the above is:  It all depends…  

Often, not mentioning a potential “red flag” until and unless it becomes a red flag is the best approach.  Sometimes, making a passing reference to the collateral issue may be appropriate.  In all instances, unless a connection can be made between the collateral issue and the issues central to a Federal Disability Retirement application — the medical basis and the impact upon one’s medical inability to perform the essential elements of one’s job — it is normally best to leave it alone.  In any case, such discretionary decisions should be made with the advice of an attorney.

Sincerely,

Robert R. McGill, Esquire

Federal Worker Disability Retirement: The “Grab-bag” Approach

In preparing, formulating, and filing a Federal Disability Retirement application under FERS or CSRS, there is always the question of which medical conditions to include in the Applicant’s Statement of Disability (prepared on SF 3112A).  One approach which many Federal and Postal employees take (which, in my opinion is the wrong one to embrace), is to name every medical condition, symptom and suspected symptom one has suffered from, or is suffering from.  This might be characterized as the “shotgun” or “grab-bag” approach. 

One must be sympathetic to this approach, of course, if only because of the following reason:  OPM regulations and case-law supports the position that once an application for Federal Disability Retirement benefits has been filed with the Office of Personnel Management, a Federal or Postal employee cannot amend or add any further medical conditions without withdrawing the application and re-filing. 

Thus, a Federal or Postal employee who prepares and files an application for Federal Disability Retirement benefits is “locked into” what is stated on one’s SF 3112A.  Because of this, many Federal and Postal employees who prepare the application without the assistance of competent legal representation will take the “grab-bag” approach of listing every possible medical condition known to man. 

While this may seem like a reasonable, “safe” approach to take, remember that such an approach can have unintended consequences:  Upon an approval of the Federal Disability Retirement application, the approval letter may approve the Disability Retirement application based upon a minor medical condition which you no longer suffer from.  This, of course, can have negative consequences down the road.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement for Federal and USPS Workers: Shotgun v. Tailored Approach

In filing a Federal Disability Retirement application, there is the “shotgun approach” — of peppering the application with any and all medical conditions which may prevent or otherwise impact one’s ability to perform one or more of the essential elements of one’s job.  The danger of this approach, of course, is that the Office of Personnel Management can (and does) stop at the first medical condition which they deem disables the applicant from performing any of the essential elements of one’s job. If the basis of such a disability retirement approval is a secondary, or somewhat inconsequential medical condition, then there is the danger in the future that, if you receive a Medical Questionnaire requesting an update on your medical condition, that you may have recovered from such a secondary medical condition and deemed to have been fully recovered.  Now, every now and then, in the approval letter issued by the Office of Personnel Management, it will not specify which medical condition was the basis for the approval which was rendered.  However, this is in a minority of approval letters, and is not worthwhile enough to consider taking a chance on such a shotgun approach.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Time, Terms & Conditions

Never wait upon a Federal Agency to determine the time, terms and conditions for filing an application for Federal Disability Retirement benefits under FERS or CSRS.  While there are rare instances in which a potential applicant for Federal Disability Retirement feels an utmost sense of loyalty, such that he or she absolutely must inform the Agency of the impending desire and intent to file an application for disability retirement, in most cases it will simply backfire. 

Yes, there are those rare instances when an Agency reciprocates the many years of loyalty given; but even in those rare instances, there is nothing that the Agency can do which is of such value in a Federal Disability Retirement case which would warrant or justify the anticipatory probability that the reaction to such information may be to have enough preparatory time to undermine such an application. 

Yes, the Supervisor’s Statement could be helpful — but won’t the supervisor likely be helpful anyway, if he or she already has such a reputation, whether or not a potential applicant informs the agency (via the supervisor) a month or two beforehand? 

It is the applicant who is always at the disadvantage; as such, the applicant who intends to file for Federal Disability Retirement benefits under FERS or CSRS should be the one who controls the time, terms and conditions of when the Agency will be informed of any potential disability retirement application.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Discretionary Judgments

There are many things in the long process of getting a FERS Disability Retirement application approved, which are purely “discretionary”, based upon one’s experience, sense of a case, an ear to listening to a client, and based upon a compendium of factors, facts and circumstances, to come up with the “best” decision on a particular issue.  A person who tries to go through the process alone, without the ear, mind, experience or judgment of an attorney who knows the process governing Federal Disability Retirement under FERS, has to make such discretionary decisions without the benefit of past experiences. 

Such decisions can range from small issues of:  how and when a treating doctor should be approached in the request for a medical narrative; how much guidance the doctor would need or want in preparing a medical narrative report; when and how to inform the agency of the pending decision to file for Federal Disability Retirement benefits, etc.; to the larger decisions, such as which medical conditions and reports to include in the final packet to be submitted to the Office of Personnel Management; and many other such discretionary decisions.  Yet, when grouped together, the complex interactions of the multiple “discretionary judgments” can often make or break a case.

Sincerely,

Robert R. McGill, Esquire