Federal Employee Medical Retirement: Entrenchment versus Fidelity to a Promise

People often have a general sense of obligations and duties, and remain steadfast in fidelity to promises made.  Ultimately, it is actions which confirm the sincerity of words, and not an abundance of additional verbiage.  But fidelity to a course of action can constitute an entrenchment of actions without regard to changing circumstances or the vicissitudes which accompany a career or a course of events.  Intersecting issues will often require a changing response; a change in plans does not necessarily constitute a violation of a promise; rather, it may in fact be the very fulfillment of a promise.

And so it is with Federal and Postal employees who confront and must deal with a medical issue; those projects which were spearheaded by a particular person; those mission statements and goals intended — suddenly, multi-tasking must be pared down to a single duty; time must be taken to attend to one’s medical conditions; the course of action intended must be altered, modified, and sometimes abandoned.

If the essence of X becomes damaged, do its attributes remain untouched, also?  Or must the dependencies be transformed in order to preserve the essence? Staying on a course when the context has encountered dramatic alterations, can be viewed as either foolhardy, stubborn, or valiant.

When a Federal or Postal Worker who is suffering from a medical condition such that the medical condition impacts one’s ability to perform one or more of the essential elements of one’s positional duties, it is time to evaluate and review the course of one’s career.  Opting to preserve one’s health and to prepare and file for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, is not an abandonment of purpose; rather, it is a recognition that life’s unexpected turn has forced a change of course — honorable in intent, and necessary in preservation.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement for Federal and USPS Workers: Legal Tools

Few disciplines and classes of artisans create their own tools.  Musicians do not fashion their own instruments; accountants do not produce calculators or computers; painters do not manufacture their own brushes.  The blacksmith does, however, form and mold his own ironworks.

Similarly, the lawyer formulates the tools upon which he crafts his arguments; for, as most Judges are lawyers themselves, and the vast majority of legislators are also attorneys, so the statutes which are issued, and the judicial opinions which are rendered, are analogously “created” by those who are members of the class identified as “lawyers”.  Once created, it is how the tools are used which makes all the difference.

In Federal Disability Retirement law, the multiple tools available must be utilized for the very purpose of their making.  Thus, application of the Bruner Presumption must be invoked where appropriate, and “stretched” to their logical extension wherever possible; the “Trevan” rule concerning SSDI approvals should be pointed out whenever it has been approved during the process of waiting for a decision on a Federal Disability Retirement application; and the restatement of the applicable legal criteria in Henderson v. OPM should be emphasized when OPM attempts to misinterpret the applicable statutory criteria in being eligible for Federal Disability Retirement as requiring a 1-to-1 ratio between medical conditions and positional duties; and multiple other legal tools.

The issue of “where” a tool was manufactured, unless poorly constructed, is rarely one of importance or relevance; rather, it is how the tool is applied which is the issue of greater import and significance.  For it is precisely the “how” and the efficacy of the utilization of a tool which results in the intended consequences of such use.

For the blacksmith, a well-fitting horseshoe; for the accountant, a tax savings; for the artist, a masterpiece; for the lawyer, a victory.

Sincerely,

Robert R. McGill, Esquire

Federal Employee Medical Retirement: Collateral Work Issues

There is often, and inevitably (it would appear), collateral work issues which appear in parallel form, along with the impact of a medical condition upon a Federal or Postal worker.  Such issues can take multiple and varied forms — from actions on the part of the Federal or Postal employee which impact upon the performance of the job itself; to behavioral issues at work; to issues concerning actions by the Federal or Postal employee outside of the workplace, but which leads to legal issues which are brought to the attention of the agency.  Whether such collateral issues directly influence or have a peripheral reverberation upon a Federal Disability Retirement application is anyone’s guess.

In preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, however, it is best to assume that (A) the Office of Personnel Management will know, or will somehow find out, about the collateral issues, via being informed by the agency or through some non-pertinent document which mentions or otherwise touches upon the issue, and (B) that OPM will use it as a basis for an argument that there was an underlying motive for filing for Federal Disability Retirement benefits, aside from the medical issue itself.

There are ways to counter such selective attempts by OPM to use a collateral issue to defeat a Federal Disability Retirement application, and it is best to have both a paper-trail as well as a clear time-line of events, to show that the collateral issue existed in a parallel, but separate, universe than the central issue of one’s medical condition.  OPM searches to defeat; it is the job of the Federal or Postal employee to rebut the search, and to destroy the effort in order to force the issue, and obtain an approval from the Office of Personnel Management.

Sincerely,

Robert R. McGill, Esquire

Words, Actions and Comparative Analysis in Federal Disability Retirement

The test of sincerity is determined by the actions which follow upon words.  Words themselves are merely malleable vehicles, subject to linguistic gymnastics, and can have interpretive chameleon-like characteristics.  Thus, a declarative statement issued by an individual, in the form of, “I will take care of it!” seemingly solves a problem — immediately, by the mere force of the statement, and in the very usage of the words chosen.

Indeed, in this world of Facebook, websites and technology-based apparatus of endless statements without the need to act, but merely to speak it; where words constitute the substance of an entity; and where a person can appear to be X merely by declaring X; a comparative analysis of sincerity is necessary.  It is ultimately the action which follows, which determines the sincerity of the words stated.

In preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, it is important that the documentary evidence provided to OPM in support of the Federal Disability Retirement application, reveals a comparative consistency with the Applicant’s Statement of Disability as declaratively issued in response to Standard Form 3112A.  For, that is the primary basis of a denial by the case worker at OPM in evaluating and reviewing a Federal Disability Retirement application — by comparing the statements made, and the medical reports, records, office notes, etc., which are provided.  That is why merely having the doctor send the records to one’s Agency, then forwarded to OPM, without first having an opportunity to see what is being sent, is tantamount to malpractice.

Words and actions — the test of sincerity, and the comparative basis for an approval in a Federal Disability Retirement application.

Sincerely,

Robert R. McGill, Esquire

 

Medical Retirement for Federal Workers: Illness v. Disability

Everyone has experienced an illness which results in a temporary period of disability; there is, however, a vast difference between such an illness, and a medical condition which is of such severity, chronicity, and intractability, such that it prevents one from performing one or more of the essential elements of one’s job.

In this day and age of cynicism and suspicion, where economic forces have pitted the private sector against Federal and Postal employees, it is important to approach a Federal Disability Retirement case in a methodological, systematic way, such that there is no question as to the viability of one’s case.  The U.S. Office of Personnel Management scrutinizes each Federal Disability Retirement application with a set of legal criteria, and if any one point of the Federal or Postal Worker’s application fails to meet the legal criteria, the Office of Personnel Management will deny the case.

In preparing, formulating and filing for Federal Disability Retirement benefits, whether under FERS or CSRS, it is important to ensure that one’s narrative description, the compilation of medical reports and evidence, and the entirety of the Federal or Postal Disability Retirement application, is not characterized merely as a “temporary illness”, but is unequivocally shown to be a medical condition such that it prevents one from performing one or more of the essential elements of one’s job.

There is a difference between an illness of a temporary nature and a chronic and progressively debilitating medical condition; but more than that, there is a vast chasm between a fact and the effective description of the fact.  It is the latter which must be conveyed to the U.S. Office of Personnel Management.

Sincerely,

Robert R. McGill, Esquire

 

Football, Fair Play, and Federal Disability Retirement

Obviously, with the Super Bowl upcoming this weekend, any references to the game itself, whether by forced analogy or metaphor, is nevertheless an appropriate one.  I will play the politically safe game by not offending any of my clients — current, former, or future potential — by declaring, “May the best team win”.

I often wonder at people who claim to “never watch sports” — how an individual in this society, in this day and age, learns about what it means to distinguish the conceptual paradigms of “fairness” and “unfairness”.  As Wittgenstein consistently reminds us, much of what we learn is through repetitive observation and application; applying and utilizing the elasticity of language is merely an afterthought.  But when a person declares that “X is unfair”, in a generic, universalized statement of admonishment, the proper response before any further reaction is provided, is to ask the pre-textual question:  What are the rules of the game?  Thus, if a particular play in a football game is questioned as to its fairness, the proper response is to identify the “rules of the game” which delineate and define whether or not there was a violation of such rules.

In preparing, formulating and filing for Federal Disability Retirement benefits, fairness or unfairness in the evaluation, analysis and determination of the application — as well as the timeliness and the amount of time that an entity takes in making such a determination — can be assessed based upon the “rules of the game”.

In a Federal Disability Retirement application, such rules have to do with the Statutes, regulations and court cases which evolve, which define the limits and boundaries of decision-making.  Thus, if a Federal Disability Retirement application is denied, it is appropriate to respond with, “It is not fair,” if the Office of Personnel Management has failed to apply the rules, statutes and case-law in an appropriate manner, thereby violating the very rules which define whether an action is “fair” or “unfair”.  This requires knowing the “rules” of the game.  It is ineffective to merely declare that Action-X is “unfair” if one fails to understand and properly evaluate Rule-Y which applies and governs such actions.

Now, back to football:  whichever team one roots for, I predict the following:  the supporters of the losing team will declare:  “Unfair”.  Why?  Not necessarily because of a violation of rules, but because losing, in and of itself, has been accepted in society as being a state of unfairness.  So it goes (as that prominent author, Kurt Vonnegut, Jr., once said).

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Information in the Public Domain

In preparing, formulating and filing for Federal Disability Retirement benefits under FERS or CSRS, there is a quantity of information which exists in the “public domain”.  Just as in the areas of social, professional and (unfortunately) personal lives, information on issues, people, concepts, etc., are plentiful, so similarly the legal arena has exploded with unending and expansive admixtures of facts, opinions and information.  That is the nature of this “information age“.  

Quantity of information, however, is not an indicator of the quality of such information.  Further, quality of information does not necessarily result in knowledge.  Knowledge is conceptually distinct from information.  The former encapsulates the application and effective usage of the former, while the former remains a vacuity of existence until it is formed and utilized.  

Proving one’s eligibility for Federal Disability Retirement benefits under FERS or CSRS requires both knowledge and information.  For, ultimately, it is the effectiveness of the formulated application, one which persuades and meets the legal criteria at the Office of Personnel Management, which is what matters.  As such, it is important to first reach out for qualitative information, then to seek out a Federal Disability Attorney who has effectively applied such information for his or her clients.  

In the search for information, always ask questions, for questioning should always lead the comfort of mind that the source of the answers will provide an effective use of information, both in quantity and in quality.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: The Client

Waiting for the approval/disapproval, the determination, the decision,etc., when the Federal Disability Retirement packet is sitting on OPM’s desk, is a passive modality of existence.  Up to that point, however, it is often a good idea to be actively involved in the process.

Whether having an Federal Disability Attorney or not, it is good to “flag” interim dates, to keep on top of how long it has been since the initial letters have been sent out to the doctors, to call the doctors and (diplomatically) ask for a reasonable time-frame within which to have the medical narrative reports written; to ask whether or not a fee is required to prepare the narrative report, and if so, how much, and if prepayment will expedite the report.

Then, once it arrives at the Agency H.R. people (or, in the case of the Postal Worker, the H.R. Shared Services Center in Greensboro, North Carolina), it is a good idea to periodically call (about every two weeks) to see what stage in the process your application is at.  Thereafter, once it is forwarded to the finance office, then on to Boyers, PA, it is a matter of waiting for the CSA number to be assigned, and then the long, arduous wait.

Sincerely,

Robert R. McGill, Esquire
Federal Disability Lawyer

 

CSRS & FERS Disability Retirement: The Waiting

Yes, filing for, and obtaining, Federal Disability Retirement under FERS or CSRS is a long, arduous, bureaucratic process. It can take 6 – 8, sometimes 10 months from the beginning to the approval of the application at the First Stage. Then, even after it is approved, it can take another 60 days before even the initial, interim payment is received. Further, if it is denied at the First Stage, the Reconsideration Stage can take an additional 90 – 120 days. And of course if it is denied at the Reconsideration Stage, the appeal to the Merit Systems Protection Board can take 120 days or more (with temporary case-suspensions and waiting for the Judge’s decision). Beyond that, any further appeals can take many more months. All of this “waiting” and admonishment of “being patient”, with little or no income, and the anxiety of one’s financial future. There is no argument to be made: patience is necessary for the entire process. I, as an attorney, cannot promise that the “process” will be any smoother or shorter; hopefully, however, I can provide a level of expertise during the entire process, which can lessen some of the anxiety during the long waiting period. As I often say: If patience is a virtue, then Federal and Postal Workers going through the Disability Retirement process must be the most virtuous men and women of the world.

Sincerely,

Robert R. McGill, Esquire