Disability Retirement for Federal Workers: The Law

The Law is a peculiar concept:  at once, it comprises the aggregation of individual lawyers, judges, clerks; it represents the legislative branch of local, state and Federal governments; it encompasses the buildings where the concept itself is applied, argued and rendered; it is governed by the multiple statutes, regulations, court opinions, etc.

Wittgenstein’s philosophical works on language games is interesting when one views the “law” from such a perspective:  the legal systems has no corresponding anchor in the “reality” of our lives, except in the very self-contained world of our language.  We speak about “the law”, live with its consequences, discuss “rights”, “legal precedence”, “court opinions”, without ever pointing to an object in the universe (except of our own creation, such as documents, buildings, people who are involved in the law, etc.) as a corresponding feature of relevance.  But certain areas of the law have “real-world” consequences.

Indeed, in preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, the connective relevance between the law, the individual, and the medical condition contains a corresponding reality, impact and significance.  The individual who files for such a benefit, the “I” who is the Federal or Postal employee, experiences the very real medical condition; the engagement in the world, as a Federal or Postal employee, is an encounter which occurs in the reality of the day-to-day world.

For some, the “law” is not merely a conceptual construct; it is a basis for which to plan for one’s future, and maneuvering through the morass of this confusing world of reality, virtual reality, complexity of language games, and the burdensome and onerous weight of the legal maze identified as Federal Disability Retirement, requires a reality-check on a daily basis.

Reality as defined by a person who suffers a medical condition, is often more “real” than those who have never encountered the experiential suffering of such constancy of reminders, that to be alive is not merely saying the words; it is a daily struggle through the acute sensing of one’s own frailty.

Sincerely,

Robert R. McGill, Esquire

Postal and Federal Disability Retirement: Providing Information

In every area of law, in most facets of life, and certainly in the administrative procedures of preparing, formulating and filing for Federal Disability Retirement benefits either under FERS or CSRS with the Office of Personnel Management, one must determine the extent, scope and substance of the information which will be provided to the requesting entity.  

Most of the time, the extent of information is pre-determined by the requirements which must be satisfied.  Similarly, the scope of the information to be submitted must meet certain criteria, but additionally, it will depend upon the question asked.  More importantly, the substance of the information one needs to provide, will be determined by the question asked, the criteria to be addressed, and the statutory and regulatory guidelines which must be met — in the case of Federal Disability Retirement under FERS or CSRS, that which would meet the legal standard of “preponderance of the evidence.”  

In venturing and maneuvering through the administrative process of applying for Federal Disability Retirement benefits, however, there will be times when either the Agency or the Office of Personnel Management may request “additional” information, indicating that they are not satisfied with what has been submitted.  

An appraisal of what information is being asked; whether the question is properly formulated as posed, or whether it can be reformulated and still satisfied; and the harm or good in responding fully or partially to the request — these are all determinations which are best guided by the advice and counsel of an attorney who understands the laws governing the legal criteria in Federal Disability Retirement cases.  

Not every question deserves a full answer.  Sometimes, the question itself must be re-formulated and answered in the re-formulated format.  Agencies are not gods; they are not omnipotent, and certainly not omniscient.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Government Employees: The Weight of Evidence

In preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS, the reason why it is important to understand, reflect upon, and have a practical knowledge of the laws governing Federal Disability Retirement issues — both in terms of statutes which govern and dictate the criteria for eligibility of Federal Disability Retirement benefits; the regulations which are propounded by the Office of Personnel Management; and the case laws which are administrative judicial opinions handed down (from the Merit Systems Protection Board, to the Full Board of the Merit Systems Protection Board; to the Federal Circuit Court of Appeals, etc.) — is that there is always a “trickle down” aspect to the evolving laws in any system of laws.

Thus, the opinions handed down by Administrative Judges at the Merit Systems Protection Board, as well as by Judges of the Circuit Court of Appeals for the Federal Circuit, are dictates and interpretation of statutory authority which are to be “followed” by the Federal Agency which is empowered to administer the decision-making process of Federal Disability Retirement benefits.

Part of that application of law, for instance, is the “standard of proof” which must be applied, and in the case of all Federal Disability Retirement applications, the standard of proof to be applied is the “Preponderance of the Evidence” standard.  But what does that standard mean?  While entirely subjective at worst, and somewhat confusing at best, the individual words which make up the conceptual entirety provides some inkling of what must be understood.

Whether qualitatively or quantitatively, one must have a showing of “preponderance” — of more, better, or of greater persuasive effect than not.  Thus, whether by sheer volume of the evidence presented, or in the quality of the presentation, the persuasive impact must be accepted as more likely than not, by the Office of Personnel Management or, if appealed to the Merit Systems Protection Board, then by the Administrative Judge.

It is important to not only apply a standard, but to have an understanding of the standard.  For, only by understanding can one then determine its proper application.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Disability Retirement: The "Process"

In my last writing, I briefly discussed why filing for Federal Disability Retirement benefits is, and must be looked upon as, a “process” as opposed to a mere “filing” with an expectation of an “automatic” approval.  This is because there is a legal standard of proof to be met, based upon a statutory scheme which was passed by Congress, and based upon a voluminous body of “case-law” handed down by the Merit Systems Protection Board and the Federal Circuit Court of Appeals.  With this in mind, it is wise to consider that, because it is a “process” with two administrative “stages” to the process, as well as an Appeal to an Administrative Judge at the Merit Systems Protection Board, then potentially to the Full Board via a Petition for Review, and finally to the Federal Circuit Court of Appeals — as such, each “step” in the process would naturally have a different and “higher” level of the laws governing Federal Disability Retirement. 

Because of this, it is often a frustrating experience for applicants, because a rejection or denial at the First Stage of the process often reveals the utter lack of knowledge by the OPM representative of the larger compendium of case-laws that govern and dictate how disability retirement applications are to be evaluated and decided upon.  Often, the so-called “discussion” of a denial letter is poorly written, meandering in thoughtlessness, and self-contradictory and with unjustifiable selectivity of statements from a medical report or record.  Such poor writing reflects a first-level decision-making process, and can be a frustrating experience upon reading the denial letter.  It is good to keep in mind, however, that the entire application procedure is a “process”, and each level is designed to have a greater level of competency and knowledge in the law.

Sincerely,

Robert R. McGill, Esquire