OPM Disability Retirement: The Human Element & Application of the Law

It may well be that technological advances will one day allow for imputed algorithms to precisely calibrate and decide everything in life; but for the time being, we must all deal with the human element in the process of decision-making.  

Comparative stories abound about how X obtained disability retirement benefits with minimal documentary proof, and even less of an actual medical condition.  It is always an anomaly as to how one can possibly answer the query which involves the following:  “X told a friend of Y, who knows of Z who filed and got his Disability Retirement benefits approved within T-amount of time”.

The particulars of each case must always determine the outcome of the case; some stories become inflated with the telling of the narrative when passed through third parties multiple times; but, on the other hand, there is the possibility that the final narration of the story is entirely true.  The reason is because the human element is still the determinative factor in any Federal Disability Retirement application.  

There is no computerized algorithm which is applied in making a determination at the U.S. Office of Personnel Management.  And, so long as human beings continue to remain a part of the administrative, bureaucratic process in scrutinizing a Federal Disability Retirement application, by analyzing the content and substance and applying the relevant laws, there will never be a perfect continuity or consistency of application.  

In some ways, this is a good thing; for, as each human being is unique, so the story of each medical condition and the impact upon one’s inability to perform all of the essential elements of one’s positional duties, in preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, is also particularized and unparalleled.  May it be so in the future, lest we ourselves become mere drones in this world of conventionalized perspectives.

Sincerely,

Robert R. McGill, Esquire

Federal Worker Disability Retirement: He Who Dictates the Law…

He who dictates the law, controls the conditions and criteria which govern a process.  Whether such dictation is an accurate reflection of the actual substance of the law, of course, is another matter.

Thus, when the Office of Personnel Management applies their 7-part criteria, they purportedly and in declarative form assert that it is based upon the substantive law which is extrapolated from the statutory authority which underlies Federal Disability Retirement laws, statutes, regulations, and expansive case-law as handed down from the U.S. Merit Systems Protection Board decisions and opinions rendered by the Federal Circuit Court of Appeals cases.

Merely asserting that a given set of legal criteria has been applied, does not constitute a verification of the proper interpretation of what the law means.  Proper interpretation requires legal analysis, an understanding of the context of how the law was applied, in what fact-scenarios the law was cited, and an argument as to whether it applies in one’s own set of factual circumstances.

Indeed, often the U.S. Office of Personnel Management will describe a linear state of a Federal or Postal employee’s set of medical reports, conditions, etc., then merely declare that the legal criteria was applied, then (without any explanatory nexus between the facts and the conclusion) make a decision stating that the medical conditions “did not satisfy the legal requirements” — without any bridging explanation as to why such a statement should be accepted as true.

Having the authority to dictate the law is one thing; such authority does not mean that one is right, or that such authority grants the agency any great insight into proper legal reasoning.  Fortunately, there are appellate procedures, such as the next step in the process — the Second Stage of the process (Reconsideration Stage), and beyond, to the U.S. Merit Systems Protection Board.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Manufactured Legal Criteria

Even assuming good faith, the application of a manufactured legal criteria can lead to a harm which can be irreversible.  The consequence of a Federal or Postal employee relying upon a mis-stated, non-existent legal criteria can potentially result in simply raising one’s hands in frustration, as a sign of futility, and giving up on the process of attempting to pursue a Federal Disability Retirement application under FERS or CSRS.  

David Hume’s philosophical argument concerning causality and the fact that, because there is no “necessary connection” between two objects which meet, which result in one object “causing” the movement or sequential effect of the second object, may be a technically ingenious analysis of an intellectual discourse.  In the “real world”, however, when two objects collide, there are causal consequences.  

Similarly, in a Federal Disability Retirement application under FERS or CSRS, when the Office of Personnel Management requires that one submit “objective evidence” to justify the medical doctor’s conclusions of disability, what the Office of Personnel Management is requiring is a “necessary connection” which does not exist in “the law”.  Years of clinical examinations; notations of progressive deterioration; limited flexion and mobility; consistent complaints of pain; the aggregate of such complaints in and of itself constitutes evidence — but of course OPM ignores such evidence as being merely “subjective“.  

Just as Hume’s requirement of a necessary connection violates the pragmatic standards applicable in the “real world”, so OPM’s requirement of “objective medical evidence” betrays the legal criteria in a Federal Disability Retirement application. Fighting the misapplication of a non-existent legal criteria is like denying a negative, however; it can be done, but you must use the law as a sword, and not merely as a shield.

Sincerely,

Robert R. McGill, Esquire

Federal and Postal Disability Retirement: The Importance of Knowing “the Law”

The old dictum that “ignorance of the law is not an excuse” for violating the law, applies just as well in a Federal Disability Retirement application — unless, of course, the entity which fails to recognize the substance of the law, its applicability, and its extended content and consequences happens to be the U.S. Office of Personnel Management.  

Let me expand somewhat.  

In order to qualify for Federal Disability Retirement benefits under either FERS or CSRS, one must prove by a preponderance of the evidence that one is entitled to the benefits.  Such proof of “preponderance of the evidence” must be in compliance with the applicable statutes, regulations, legal criteria, case-law (as handed down by the Merit Systems Protection Board decisions, as well as by the Federal Circuit Court of Appeals).  However, when the entity which constitutes itself as the intermediate arbiter of all Federal Disability Retirement applications (it is merely “intermediate”, as opposed to “final”, because there is the review process by the Merit Systems Protection Board and the Federal Circuit Court of Appeals) itself fails to apply the applicable law, there exists an inherent problem.  

OPM is designated to decide cases based upon the applicable law.  Yet, in its denials, it will often apply criteria which has absolutely no basis in “the law”.  

All the more reason why, in preparing, formulating and filing for Federal Disability Retirement benefits, it is important for the Federal or Postal worker seeking to obtain Federal Disability Retirement benefits, whether under FERS or CSRS, to know and understand the law — its substance, applicability, and consequential reverberations upon the multiple aspects of issues involved in a Federal Disability Retirement application.

Sincerely,

Robert R. McGill, Esquire

Federal Worker Disability Retirement: Extrapolating Carefully from “The Law”

In preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS, it is important to recognize the major legal cases (those “landmark cases”) from which many other cases derive their foundational basis.  Such cases form the fundamental and overriding criteria of a legal arena, and this is no different in arguing for Federal Disability Retirement benefits under FERS or CSRS, either for Federal or Postal employees.  Furthermore, in citing a case to argue for one’s position of eligibility and entitlement, it is equally important to have read the cases carefully, and to argue the merits of an issue persuasively and accurately.  

One of the worst things that a lay, non-lawyer applicant can do is to mis-cite a case or a statute, and its meaning and ancillary conclusions.  For, when the Office of Personnel Management reviews a case and refutes a particular issue, and further points out that a legal precedent or statutory authority has been mis-applied, one’s credibility as to the substance of the application is not only undermined, but further, the viability of one’s legal argument has been subverted.  As such, it is normally advisable to leave the law to lawyers — and in Federal Disability Retirement cases under FERS or CSRS, to leave it to lawyers who specialize in the field. For, to do little or no harm to one’s self is certainly better than to saw off the branch which one has grasped onto, no matter how tenuous the position to begin with.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: Beware the Layman

Federal employee attorneys create and manufacture a parallel universe of statutory interpretation, legal argumentation, case-law citations, and extrapolations from esoteric provisions in arguing the “finer points” of law.  Thus, it is a temptation for the lay person — the “non-lawyer” — to attempt to borrow from cases and take a stab at citing case-law and statutory authority in trying to garner support for his or her Federal Disability Retirement application.  In taking on a case at the Reconsideration Stage or the Merit Systems Protection Board, I have the opportunity to read some of the “legal arguments” which non-lawyers have attempted to make.  While many such arguments are valid, some (i.e., too many) mis-cite the law, and often fail to understand and proffer the substantive import of what the cases are saying.  On top of it all, I suspect that the Office of Personnel Management gets a bit annoyed when a non-lawyer applicant attempts to preach the law to another non-lawyer OPM Representative.  A word to the wise:  let lawyers entertain themselves in the parallel universe of the law; let the doctors render their medical opinions; let the non-lawyers make the best arguments possible, in layman’s language. 

Sincerely,

Robert R. McGill, Esquire