Federal and Postal Disability Retirement: The Undisciplined Narrative

‘Discipline’ is a concept which is anathema to the American psyche; for, it is precisely the American character to have unfettered liberty, the ability to “be one’s self”; of self-expressive uniqueness, and to embrace the boldness of the American Dream, as represented by the vast expanse of the American Midwest.

We debate about the constructive use of discipline for our children; complain if the government attempts to discipline our spending habits; and question whether societal constraints should be imposed in our daily lives.  In writing, however, a measure of self-discipline is necessary, if only because the audience for whom one writes will necessarily veto our refusal to discipline one’s writing in a penultimate manner, if we do not:  by refusing to read it.

In preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, one must discipline the writing of the Applicant’s Statement of Disability (Standard Form 3112D), in multiple respects:  in length; in providing historical background; in careful content selection; in answering the questions asked in a relevant and appropriate manner; in avoiding breaching certain taboo subjects which could defeat a Federal Disability Retirement application; in taking on the tone, tenor and texture of objectivity as opposed to pure emotional appeal, etc.

‘Discipline’ is a dirty word in the American lexicon; but in the preparation, formulation and filing of a Federal Disability Retirement application from OPM, it is a necessary clump of dirt which must be sifted, cleansed and appropriately dusted, in order to provide an effective narrative vehicle to have a Federal Disability Retirement application approved by OPM.

Sincerely,

Robert R. McGill, Esquire

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

Medical Retirement Benefits for US Government Employees: The Approach

In preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS from the Office of Personnel Management, one should always make the conceptual distinction between an “entitlement” and an “eligible benefit”.  

Federal Disability Retirement benefits fall into the latter category.  However, because the technical distinction between an “entitlement” and an “eligible benefit” is often not made, or not thought of, the approach in preparing and filing a Federal Disability Retirement application becomes problematic and fraught with defects.  

In speaking with various Federal and Postal employees who are contemplating filing for Federal Disability Retirement benefits, one often hears the case that his or her particular disability retirement application is “a sure thing,” or that the “medical evidence shows that it’ll sail through.” 

While self-confidence is an admirable quality, approaching a Federal Disability Retirement application with the idea that the benefit is tantamount to an entitlement because of the strength of meeting the applicable burden of proof, is what is popularly referred to as, “A recipe for disaster”.

When a Federal Disability Retirement application is reviewed by the Office of Personnel Management, it is never a sure thing.  It must be carefully prepared and presented, and any amount of taking an issue or element of the application for granted is a foolhardy perspective.  

Self-confidence should arise after a good piece of work has been accomplished; and, even then, one should always be prepared to engage in a protracted battle.  After all, the eligible benefit of Federal Disability Retirement is worth fighting for, in order to secure one’s physical, mental, and financial future.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Workers: The Quantitative Approach

The problem with submitting a Federal Disability Retirement application under FERS or CSRS based upon the “quantitative approach” (submitting a voluminous medical file which, by the sheer weight, extent and thickness of the file, reveals the severity of the multiple medical conditions) is that it often fails to provide the proper bridge between the particular medical condition a Federal or Postal employee suffers from, and the impact upon the essential elements of one’s job.

Certainly, medical records, notes, diagnostic test results, etc., can provide a narrative delineation of one’s continuing medical conditions — but the question becomes, a narrative to what end?  The Office of Personnel Management will often review a large stack of medical documentation and simply conclude that there has been insufficient medical documentation, and further, that the medical documentation submitted fails to show that such conditions are severe enough to prevent one from perform one or more of the essential elements of one’s job. That is because the mere existence of a medical condition — no matter how extensive such medical conditions have required in terms of hospitalizations, testing, surgical or other procedures, etc. — is not enough to satisfy, by a preponderance of the evidence, the criteria applicable for eligibility for Federal Disability Retirement benefits under FERS or CSRS.  

Remember, always use the golden rule:  quality over quantity.  And in a Federal Disability Retirement application under FERS or CSRS, quality means the bridging of that conceptual gap between the medical condition, and the essential elements of one’s job.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: The Decision (Again)

Yes, it is a difficult decision to make — to come to terms with filing for Federal Disability Retirement under FERS or CSRS.  It makes it all the more difficult when individuals wait until the last possible minute before calling up the attorney (me) to file for Federal Disability Retirement benefits.  There have been a few times in the past (very few) when I simply could not take on a case with only a week left before the Statute of Limitations runs out.  The only thing I can do at that point is to identify which forms to fill out (however imperfectly), and give the fax number and the address to Boyers, PA for the individual to file. 

Remember the important point:  You can always make factual, medical and legal arguments after you have filed; you cannot make any arguments if you have failed to file on time.  Of course, it comes with the territory — as an attorney who exclusively represents Federal and Postal employees to obtain disability retirement benefits (there are many attorneys who practice Federal Disability Retirement law as one aspect of a larger practice which includes other areas of Federal Employment law), I understand how intertwining the medical condition is, with the anxiety and stress of filing for Federal Disability Retirement benefits, and how procrastination is often part and parcel of the medical condition itself.  At the same time, however, I take pride in doing a good job; I like to service my clients; I like to see the successful outcome.  As such, I am reluctant to take on cases where there is very little time to file.  I have, and will, take on cases where the Statute of Limitations is about to run out, but there must be at least some time left.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Argument by Analogy

Attorneys argue “by analogy” all of the time; cases and decisions from the Merit Systems Protection Board, and language from the Federal Circuit Court of Appeals, provide the fertile fodder for such argumentation.  Thus, such issues as to whether the Bruner Presumption should apply in the case; whether a case is similar to previously-decided Federal Disability Retirement cases; the similarity of fact-scenarios and legal applications — they are all open to argument by analogy.  That is why case-citations are important — even in arguing a Federal Disability Retirement case to the Office of Personnel Management.  Whether and how much influence such legal argumentation can have at the first two stages of the disability retirement application process, may be open to dispute; but cases should never be compiled and prepared for the first or second stage alone; all disability retirement applications should be prepared “as if” it will be denied and will be presented on appeal to the Merit Systems Protection Board.  Such careful preparation serves two (2) purposes:  First, for the Office of Personnel Management, to let them know that if they deny it and it goes on appeal to the Merit Systems Protection Board, they will have to answer to the scrutiny of the Administrative Law Judge; and Second, for the Administrative Law Judge at the Merit Systems Protection Board, to let him or her know that you did indeed prepare the case well, and that your particular Federal Disability Retirement application conforms to the law, and should therefore be approved.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: The Perspective from the Office of Personnel Management

In effective argumentation, persuasion, written memoranda, oral presentation, and the entire spectrum of attempting to convince the “other side” of the validity, force, appropriateness, and viability of any administrative or legal filing of any nature, it is often a useful tool to attempt to view an issue from that “other” perspective.

Remember that, in filing a Federal disability retirement application under FERS or CSRS, it is good to consider the fact that the OPM representative who will be reviewing your particular application, merely sees your application as one among hundreds of files assigned to him or her. With that in mind, the essential question becomes: How can my particular application, as one among many, be reviewed in such a way that it “stands apart” so that it will be quickly approved? If you ask that question, or any variation of such a question, then you may be taking a wrong approach.

Remember that filing for disability retirement under FERS or CSRS is not like applying for a job; you are not filing a resume that needs to stand out; rather, it is often best if your particular application is nothing more than a “run of the mill” application — with strong, unequivocal and irrefutable medical evidence, along with strong legal arguments to support your case. Yes, of course your Applicant’s Statement of Disability should explicitly describe the human condition of medical disablement; yes, the “nexus” between your medical condition and your job should be carefully constructed; but no, your application should not necessarily “stand out” as uniquely different — for such an application will often be viewed as “suspicious” and “over-stated”, and may well lead to not just a first viewing, but a re-viewing, and a possible denial

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability: The Filing

Never be deceptive in your filing. Always be truthful. To be deceptive or untruthful will harm your credibility, your case, and ultimately, may defeat your ability to obtain disability retirement benefits. Now, there is a conceptual distinction between being “truthful” and emphasizing certain issues of your case, while leaving certain other issues as secondary and less prominent in the documents & supportive papers filed. Thus, to take a rather crude example, while everyone in the world spends a great deal of his or her life in the restroom, we rarely — if ever — talk about such events. Is it because we are not being “truthful”? No — instead, while it is an issue which is not emphasized, it is not something which we are also being deceptive about.

Thus, with respect to disability retirement issues, one should never deliberately attempt to mislead, hide, or otherwise “expunge” certain aspects of the disability retirement application. At the same time, however, those aspects which are not very helpful, or which may harm your case, should not be placed in bold-type or underlined in red. Wherever possible, those aspects which will weaken your case, should simply be de-emphasized — but never deliberately hidden.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: Trying it Without an Attorney

I get calls all the time by people who tell me that they thought their particular Federal Disability Retirement case was a “slam dunk”; that the medical documentation was there; that everything looked like it should be approved at the first level.  Then, there are people who tell me the same thing after the second, Reconsideration denial — that he or she thought it should definitely pass through.  But law, and especially administrative law before the Office of Personnel Management, has peculiarities beyond a surface, apparent reality.  There is a process and a methodology of obtaining disability retirement. Can a federal disability attorney guarantee the success of a disability retirement application?  No.  Does an individual applicant have a better chance with the assistance of an attorney who specializes in disability retirement law?  In most cases, yes.  Aren’t there applicants who file for disability retirement, without the assistance of an attorney, who are successful?  Yes.  Should everyone who files for disability retirement hire an attorney?  Not necessarily. 

When I speak to a client, I try and place him or her on a spectrum — and on one side of that spectrum is an individual who works at a very physical job, and who has such egregious physical medical disabilities; on the other side of the spectrum is an individual who suffers from Anxiety, who works in a sedentary administrative position (please don’t misunderstand — many people who suffer from anxiety fall into the “serious” side of the spectrum, and I am in no way attempting to minimize the psychiatric disability of Anxiety).  Most people, of course, fall somewhere in the middle.  Yes, I have told many people to go and file his or her disability retirement application without an attorney.  There are those cases which are so egregious, in terms of medical conditions, that I do not believe than an attorney is necessary.  However, such instances are rare.  Thus, to the question, Should everyone who files for Federal disability retirement under FERS & CSRS hire an attorney?  Not necessarily — but in most cases, yes.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: The First Denial

Your Federal disability retirement application was well-prepared:  perhaps it was prepared with the help of an attorney; the medical documentation seemed solidly unequivocal; the doctor made the necessary connections between one’s medical conditions and the type of essential elements of one’s job; the packet, by all accounts, should have been approved, and by all expectations, the approval should have been reasonably expected. 

Instead, you receive a letter stating that your disability retirement application was disapproved, and a “Discussion” section follows, explaining why the Office of Personnel Management denied your application.  Why did this happen?  There are multiple reasons why such a denial can occur:  the OPM specialist could be a person who lacks a clear understanding of the applicable laws governing disability retirement applications (more often than not, this is the case, and what you actually get in the so-called “Discussion” Section of the denial letter is merely a regurgitation of the statutory criteria for eligibility for disability retirement, without a recognition of the interpretation of such criteria by Federal Judges for the Federal Court of Appeals or by Administrative Judges from the Merit Systems Protection Board); it could be as simple as the OPM representative selectively choosing to read the medical reports and records, and disregarding or ignoring supportive portions of the medical records and reports; or it could be that additional medical reports and records need to be obtained in order to “shore up” the application. 

In any event, whatever the reason for the denial, one should not panic.  It is merely one step in a long, administrative process.  The mere fact that OPM denies your disability retirement application does not mean that they are “right” in doing so; indeed, in my opinion, they are rarely right.  That is why one has the right to have it “reconsidered”, and the opportunity to make further legal arguments, and obtain further medical documentation in support of your claim.  And, beyond that, you have the right to file an appeal to the Merit Systems Protection Board — and beyond.  Never give up; always take it to the next step.  In most cases, it will prove that OPM was in error, and in fighting the denial, you will have secured some semblence of financial security for your future.

Sincerely,

Robert R. McGill, Esquire