CSRS & FERS Medical Disability Retirement: Bureaucracy and the Objective Algorithm

On the one hand, objectivity can be viewed as a positive thing; for, with it, one is assured that all applications are treated equally, by the implementation of identical criteria across the board.  “Gut feelings”, personal beliefs, and that “sixth sense” is eliminated; and thus is fairness achieved by the equal treatment of all cases, and “exceptional circumstances” are not, and cannot be, considered.

What such an approach gains in large-scale application, however, may lose out in individual cases.  For, if experience and age accounts for anything, it should allow for decisions made outside of the mainstream of thought, based upon those very factors which make up the difference — wisdom from years of engaging in a particular endeavor.

The problem with the bureaucratization of a process is precisely that it fails to allow for exceptions; but concomitantly, it is precisely those unique circumstances which cry out for a carved-out exception.  In a Federal Disability Retirement application, submitted to the U.S. Office of Personnel Management, whether under FERS or CSRS, there are always cases where all of the facts and circumstances reveal eligibility; but in applying the mathematical (and thoughtless) algorithm of criteria-based analysis, there may be something missing.  Perhaps the doctor would not, or could not, say exactly X; or the test results revealed nothing particularly significant.

In some ways, the medical conditions identified as Fibromyalgia or Chronic Fatigue Syndrome represent such scenarios.  In those instances, it is important to descriptively convey the human narrative in a particularly poignant manner.

The administrative bureaucracy is here to remain among us; to rise above the level of thoughtless application of a criteria, however, one must creatively encourage the phoenix to rise from the ashes of boredom, and span its wings to include those others who deserve the benefits of Federal Disability Retirement.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Workers: The Unguided Doctor

In preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS, it is important to guide the doctor into properly preparing and formulating the medical narrative report.

This is not a matter of “telling what the doctor to say”.  The treating doctor is obviously aware of the types of medical conditions that the patient — the Federal worker who is filing for Federal or Postal Disability Retirement benefits — is suffering from.  The doctor’s professional integrity, as to what his or her medical opinions are, should always be preserved and be paramount.  

Further, it is merely a factual issue as to whether the doctor will be supportive of such an endeavor, and such support can only come about by having a direct and frank discussion about the requirements of one’s positional duties and how those positional duties are impacted by one’s medical conditions.  

Rather, the issue of guiding the doctor is one of informing him or her of the particular elements which are necessary and unique in a Federal Disability Retirement application, which must be addressed in a narrative report.  For, otherwise, the unguided doctor will simply issue a narrative report with a different focus and a different end.

Guidance is merely knowing what the goal of a particular activity requires, and unless the treating doctor understands the technical requirements of what is needed (the end-goal), that doctor will merely attempt to meander by accident in a formulation which may include elements which are more harmful, than helpful, in preparing, formulating, and filing for Federal Disability Retirement benefits under either FERS or CSRS.

Sincerely, Robert R. McGill, Esquire

CSRS & FERS Medical Disability Retirement: The Fallacy of Objective Medical Evidence

The Federal Circuit Court of Appeals has already addressed the issue of the Office of Personnel Management’s unjustified adherence to making a distinction between “objective medical evidence” as opposed to what they deem and declare to be “subjective” evidence.

The distinction has no statutory basis or authority, but OPM continues to make the same, repetitive and tiring arguments concerning such a distinction.  Of course, when there exists a plenitude of “objective” evidence, then OPM will often sidestep such evidence and argue that it wasn’t “compelling” enough.  

The fallacy of “objective” versus “subjective” becomes most apparent, of course, when it addresses the issue of “pain”.  Pain is by definition a subjective state of experiential encounter.  If there is any “objective” evidence of pain, it is a misunderstanding of what constitutes such evidence.  Thus, for instance, one might point to an MRI showing a multi-level disc degeneration from L3-L4, L4-L5, etc., and state, “There, we have objective evidence of pain.”

Not quite.  What you merely have, if one stops and considers it, is simply a parallel set of observable facts:  A:  an image which reveals an abnormality of the spine, combined with B, which has an individual who conveys a sensation of pain.  However, inasmuch as there are many people who have similar or worse states of “A” (multi-level disc degeneration), but go through life without any apparent pain, one cannot therefore argue that A is “objective” evidence of “B”.  There may be a parallel correlation to be made, but no causal connection.  

Regardless, the Federal Circuit Court has already declared OPM to be in error for making such a distinction.  However, despite the law, OPM continues to deny Federal Disability Retirement applications under FERS & CSRS by adhering to the false distinction.  Imagine that.

Sincerely,

Robert R. McGill, Esquire

Medical Retirement for Federal Workers: A Proper Sense of Objectivity

In preparing, formulating and filing a Federal Disability Retirement application under FERS & CSRS, one might ask the legitimate question as to why a “proper sense of objectivity” is even necessary, given the obvious fact that:  A.  The applicant is identical to the person whom the application is about and B.  

From the Merit Systems Protection Board cases touching upon the types of evidence which the Office of Personnel Management is required to accept and review, subjective evidence of pain is acceptable and must be considered.  While both of these statements (A & B) are true, the problem comes about when the focus of the discussion concerning the basis and reasons for granting of a Federal Disability Retirement application under FERS or CSRS are without a proper discussion of the medical conditions which should be discussed in the medical reports and records themselves.

This is where the bridge between the applicant’s own narrative of the medical condition and a proper perspective and balance of a discussion concerning the medical evidence being submitted, is often lost when the applicant for Federal Disability Retirement benefits is unrepresented, and is therefore one and the same as the person who is preparing the application.  

Some sense of emotion is never harmful; some sense of passion and strength of conviction is certainly preferable; too much of the “I” will, however, often result in the loss of the proper sense of objectivity in the formulation of a Federal Disability Retirement application under either FERS or CSRS.

Sincerely,

Robert R. McGill, Esquire

Federal and Postal Disability Retirement: Objectivity & Legal Arguments

Having written about the importance of maintaining a level of objectivity in preparing, formulating and submitting a Federal Disability Retirement application under FERS or CSRS, and further, about the necessary component of a legal argument and references to prior legal citations, it is of note that the two intersect in significant ways.  Because the law, statutes, cases, etc., are intended to apply to everyone, it is meant to be a ‘universal principle’.  Whether one agrees with the law or not is beside the point, and ultimately irrelevant.  

Further, one must make a distinction between using the law as either a shield or a sword, and for a Federal or Postal employee who is considering citing the legal precedents in filing a Federal Disability Retirement application, it is important to utilize the law, case-law and statutes as a ‘sword’ in order to persuade the Office of Personnel Management to approve your case.  

The two together — of maintaining a level of objectivity in preparing a Federal Disability Retirement application by focusing upon the medical reports & records; citing case-law and legal precedents to argue one’s case in an affirmative manner — form a powerful and compelling basis in any Federal Disability Retirement application.  The intersection between the two — objectivity and legal arguments — direct the tone, tenor, and foundation of any Federal Disability Retirement application.

Sincerely,

Robert R. McGill, Esquire

Federal & Postal Disability Retirement: Credibility (Part II)

Ultimately, then, credibility of a FERS or CSRS Disability Retirement application will often come about based upon an initial perusal and superficial, “first-time” look at a Federal Disability Retirement application under FERS or CSRS.  That is why it is often important to thoughtfully and sequentially place information in a methodological, coherent manner. That is why superfluous, peripheral material, opinions, statements from non-medical third parties, etc., should be kept to a minimum, at least in any initial attachment.  Now, if it is thought to be necessary and if it is determined to be helpful additional information, then an addendum attachment, or perhaps an attachment chronologically listed as “additional helpful information” can be part of the packet.  However, it should be clearly identified as such, and even the “additional information” should be streamlined, coherently structured and qualitatively and selectively utilized.  Remember that the essence of a Federal Disability Retirement case is the interconnection between a person’s medical condition and the type of work which one engages in.  As such, aside from the personal “I” statement, the medical reports and records should be the central focus.

Sincerely,

Robert R. McGill, Esquire