Medical Retirement for Federal Workers: The Changed Standard

Lawyers are trained to engage in linguistic gymnastics; that is precisely why Plato railed against rhetoricians of his day, as they used language to distort the fullness of being (as Heidegger would say).  For, the malleability of language allows for a spectrum of purposive and mischievous play upon words; only an abiding sense of integrity in the face of a world which has abandoned parameters and boundaries of what constitutes “fair play” in the arena of linguistic word games, would save the original foundation of the correspondence theory of truth.

In this postmodern world where objective truth can no longer be argued for, subtlety in playing a language game is no longer necessary; one can simply, deliberately and without conscience switch one word for another, and maintain a straight face.

So, in a Federal or Postal Disability Retirement case, when the U.S. Office of Personnel Management inserts words which clearly do not reflect the legal standard as presently existing, what does one do?  When the standard is raised to require “disability which precludes you from the workplace”, or evidence of a medical condition which is “compelling”, how does one respond?

Such unwarranted and baseless legal applications are inserted in many denials from the U.S. Office of Personnel Management, requiring a Request for Reconsideration or an appeal to the Merit Systems Protection Board.  In the end, in order to properly respond, one must first recognize the malleability of language; then to identify the proper legal standard to be applied; then to selectively address such improper legal standards.

In a Federal Disability Retirement case, whether under FERS or CSRS, the ultimate problem is that one is dealing with a Leviathan of an agency — the U.S. Office of Personnel Management — and one which has the power to engage in rhetorical flourishes with unfettered abandon.

Sincerely,

Robert R. McGill, Esquire

Federal and Postal Disability Retirement: Applying the Legal Standard

In preparing, formulating and filing a Federal Disability Retirement application with the Office of Personnel Management, it is important to understand the legal criteria of “preponderance of the evidence”, to attempt to meet the legal criteria; to state and argue that the legal criteria has been met, and to reiterate and show how the legal criteria has been met.

Thus, as the Office of Personnel Management is a bureaucracy with multiple levels replete with clerical and administrative staff, it is important to present, to show, to reiterate, and to affirm:  the point to get across must be established in a succinct, effective, efficient manner, but it must be firmly established.

“Preponderance of the evidence” can be quite subjective, but within the context of such subjectivity, it encompasses the conceptual analogies of:  X is more likely than not; the quantitative weight of the evidence shows that the burden of proof has been met; the qualitative whole has proven that one is entitled to Federal Disability Retirement benefits; the compendium of evidence, both medical and supporting, shows that Mr. Y’s medical condition does indeed prevent him from performing one or more of the essential elements of his job; and similar conclusions to be reached as a result of the entirety of the evidence presented.

Of these analogies noted (which is not meant to be an exhaustive list, but merely an attempt to illustrate the meaning of the concept of “preponderance of the evidence”), the one which is most dangerous for people to embrace, is the “quantitative weight” of evidence.  For, ultimately, gathering a thick stack of medical documentation is the easiest way to put together a Federal Disability Retirement application, but the least effective.  And in the end, it is effectiveness which we seek, and not ease of completion.

Sincerely,

Robert R. McGill, Attorney

Federal Employee Medical Retirement: Describing One’s Medical Conditions

In preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS from the Office of Personnel Management, the conundrum which one faces immediately is to attempt to overcome the seeming inability of third parties (OPM Personnel included) to understand, comprehend, relate to, and ultimately “feel” a sense of empathy and compassion for the particular genre of medical conditions a Federal or Postal worker suffers from.  

While the entire administrative process of filing for Federal Disability Retirement benefits is based upon a legal criteria, with a standard of proof set by law — that of “preponderance of the evidence” (which, simply put, means that one must prove that something is “more likely” the case than not — a relatively low standard of proof in the potential options of applying various legal standards) — it nevertheless comes down to having a fellow human being review, analyze, assess and evaluate one’s Federal Disability Retirement application at the Office of Personnel Management.  

Yes, there is an applicable legal criteria which is applied by the Office of Personnel Management.  Yes, there is a set of conforming documentation which must be submitted.  Yes, there are Standard Forms to be completed.  Yet, as with all processes of review, no evaluative process can be merely characterized as an objective calculus; otherwise, the eligibility requirement of a Federal Disability Retirement application should be able to be determined by a computer program.  

While such a possibility may well occur in the not-too-distant future, for the present, an actual person (although this is sometimes questioned, also, based upon the unresponsiveness of OPM and the voicemail messages one encounters) at the Office of Personnel Management must review, evaluate, and determine the viability of a Federal Disability Retirement application.  As such, part of the key to the success of the administrative process must be in the descriptive narrative of one’s medical conditions, their impact upon one’s ability/inability to perform one or more of the essential elements of one’s job, and the qualitative and quantitative impact, direct or otherwise, upon one’s life.  

Here again, a cold, objective calculus should not be the only approach.  The “human factor” should be included — and to do so, one must extrapolate and apply all of the descriptive tools available in the English language.  

Sincerely,

Robert R. McGill, Esquire