Postal and Federal Disability Retirement: Sparing the Legal Argument

In preparing, formulating, and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, there are multiple discretionary decisions to make.  By “discretionary decision“, is meant that there may be differing priorities of values which must be placed in the very process of deciding whether or not to include or exclude a medical document, legal argument, etc., and the prioritizing of the value placed upon such evidence is what will determine the decision itself.  There may ultimately be no “correct” decision on the matter, as opposed to an incorrect one.

Further, one may never know (or care, once an approval of a Federal Disability Retirement application is received) whether or not the Office of Personnel Management made a positive or adverse decision on the Federal Disability Retirement application (whichever the case may be at any given stage of the administrative process) based upon the same priority of values assessed upon the decision itself.

For example, sometimes the evidence itself — whether medical or non-medical documentary evidence — may be compelling enough in and of itself, that making a long and tedious legal argument may in fact detract from the prima facie strength of the evidence itself.  Or, it may be that a short sentence or annotation in a medical document may be so significant that a particular legal argument, however long and involved that may be, should be stated, and stated at length, and argued boldly.

Discretion dictates a restraining of a reactionary response; sometimes, the shorter the statement, the more effective is the presentation.  Length and verbosity alone do not constitute effectiveness in preparing, formulating and filing for Federal Disability Retirement benefits from OPM.

Sincerely,

Robert R. McGill, Esquire

Federal Worker Disability Retirement: The Applicability of the Legal Argument

If there is a legal argument to be made, make sure that it is applicable; further, it is important to distinguish between the necessity of making a legal argument, as opposed to allowing the facts to speak for themselves, and the medical reports and records to establish the necessary proof by a preponderance of the evidence.

In administrative law, and specifically in preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, the “applicant” (the one filing for Federal Disability Retirement benefits, whether as a Postal Worker or as a non-Postal, Federal Worker) has the advantage of thoughtfully compiling the material, documentation, legal memorandum, narrative reports, and the entire compendium of proof necessary to meet the legal requirements of eligibility, and therefore entitlement, to Federal Disability Retirement benefits.

It is essentially a “paper presentation” to the Office of Personnel Management.  As such — because the applicant is able to take the necessary time and effort at the front-end of the process to prepare a compelling case, it is important to “pick and choose” the viable legal arguments to be made.

Sometimes, facts can speak for themselves, and there need not necessarily be a legal case to support the facts.  Other times, the medical report and records can meet the legal requirements, without citing a specific statute or case-law.  Then, there are applicable legal arguments which must, and should, be made, if merely because one should assume that OPM will not recognize the legal requirements unless aggressively informed about it.

In making such legal arguments, however, don’t undermine your own case unless you know what you are talking about.  Better to remain silent on matters not known, lest you reveal your lack of knowledge on the matter.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: The Resignation Argument

Sometimes, in preparing to file for Federal Disability Retirement benefits from the Office of Personnel Management under FERS or CSRS, one is either forced to resign or, because of financial or other reasons, it is the best course of action to take.  

In any resignation, one should submit a resignation letter which clearly and concisely identifies the reason for one’s resignation:  Medical inability to perform one’s job.  While such resignation, for the reasons stated, may not invoke what is termed the “Bruner Presumption“, it nevertheless lays the groundwork for arguing that one is entitled to the Bruner Presumption.  

Now, understand that such an argument may fly completely over the heads of anyone and everyone at the Office of Personnel Management.  However, if the case is denied both at the Initial Stage of the Process, and at the Reconsideration Stage of the Process at the Office of Personnel Management, then it must be filed as an appeal to the Merit Systems Protection Board.  There, with an Administrative Judge reviewing the record, while it may still end up that one is not entitled (technically) to the Bruner Presumption, sometimes the strength of an argument in favor of a legal precedent is almost as strong as obtaining the substantive elements of the legal precedent.  

Indeed, if all of the corollary issues surrounding the stated resignation for medical reasons are consistent — the medical documentation; using FMLA; being on OWCP for part of the time, or otherwise only able to work part of the time; etc. — then the fact that one was forced to resign based upon one’s medical inability to perform one’s job, is a consistency worth documenting and arguing thus:  While it is true that one was not removed for one’s medical inability to perform the job, it is “as if” one was removed, because there was really no other choice available.  Sometimes, it is the argument itself which provides the foundation for persuasion, and not the technical application of a legal device.

Sincerely,

Robert R. McGill, Esquire

Federal Disability Retirement: Beyond the Bruner Presumption

The methodology of making extended legal arguments beyond the explicitly stated statute or case-law is a natural event, accepted and expected by Judges and opposing counsel.  However, there are unspoken but circumscribed limits to such arguments, and when an individual attempts to go beyond the parameters of rational argumentation, the entire argument loses its underlying credibility.  

Thus, in a Federal Disability Retirement application under FERS or CSRS, one may argue for the application of the Bruner Presumption once a proposal to removal a Federal or Postal employee for his or her medical inability to perform the essential elements of one’s job has been  initiated.  Such an argument would certainly be a logically viable one.  

Further, there is certainly legal authority and precedent for use of Social Security Disability approvals, and Veteran’s Administration ratings, as persuasive arguments in a Federal Disability Retirement case.  But how far can an argument — often “by analogy”, which has a long tradition of acceptance in the legal arena — be taken?  For instance, can an email discussion between supervisors within an agency discussing and admitting a proposed removal of an employee based upon his or her medical inability to perform the job be used?  Probably, but sparingly.  Can the Bruner Presumption be applied in such a hypothetical?  Probably not, but the principles underlying the case of Bruner v. OPM can certainly be argued as “further evidence” of the agency’s inability to accommodate the Federal or Postal applicant.  

These all constitute the boundaries of legal argumentation, which can be pushed to their limits, but with care and the tool of logical force.  But one must, of course, always be careful — because, to use a tool based upon logic implies that the user has been trained in logic and logical argumentation, which in and of itself is a discipline sorely lacking in many people, including many attorneys.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement for Federal and USPS Workers: The MSPB

The Merit Systems Protection Board (better known by its acronym, the “MSPB”) is the third stage of the administrative process in attempting to obtain Federal Disability Retirement benefits under FERS or CSRS.  By this Stage, while the Office of Personnel Management has been both the “judge and jury” for determining one’s eligibility for Federal Disability Retirement benefits, the case is then handed over to an Administrative Judge to be the arbiter of such determination.

While it is advisable for a Federal or Postal Worker to obtain a FERS/CSRS Disability Attorney from the start of the administrative process, it is of even greater importance to consider obtaining proper legal representation before proceeding down the path of the MSPB.  This statement of advising any Federal or Postal employee to obtain proper representation at the MSPB is made for several reasons, not the least of which includes the following:  The MSPB is the last “stage” of the process in which a Federal or Postal employee who is seeking to obtain Federal Disability Retirement benefits may submit evidence in order to prove one’s case (with some special exceptions); any basis for an appeal, upon the chance that the Administrative Judge rules against you, must be established during the Hearing of the case at this stage; and since this stage is the arena of “the law”, it is important to be familiar with the most recent case-laws which govern Federal Disability Retirement.  The MSPB is not a place to feel one’s way through; it is the playground where the “grown-ups” play.

Sincerely,

Robert R. McGill, Esquire

Federal Disability Retirement Benefits for Federal & Postal Employees: Point of Necessity

Just as one should purchase insurance based upon the worst-case scenario, so one should generally prepare for anything in life with unexpected consequences in mind.  This is similar to the proper approach in preparing, formulating, deciding, and filing a Federal Disability Retirement application under FERS & CSRS.  People will often call an attorney only when he or she “thought it necessary”.  But who determined the point of necessity?  If the individual who determines the point of necessity is the same person who finds him or herself at the point of necessity, then it is often too little too late. 

Can most cases be reversed and won even after an initial denial?  Yes.  Can most cases be reversed and won even after a second denial at the Reconsideration Stage?  Yes.  Can most cases be reversed and won even after an initial denial, a denial at the Reconsideration Stage, then an adverse Initial Decision by an Administrative Judge at the Merit Systems Protection Board?  Perhaps.  How about thereafter?  You are then asking if, after all of the facts have been put forth, after all of the stages of consideration by the administrative process of filing for Federal Disability Retirement benefits, whether an error in the application of the law can be found.  Yes, at each state of the process, a Federal Disability Retirement application can be won; however, remember the the “point of necessity” is not best determined by the one who thinks it is finally necessary; it is often best determined by an experienced OPM Disability attorney.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: The Law and Language

Language is the playground of the Attorney.  It is the heart and soul of his or her profession.  Through language, the attorney describes, delineates, argues, and provides a sequential (hopefully) rebuttal and attack upon any attempt by the “opposing” forces or the named “adversary” to undermine one’s logically structured application — in this case, an application for Federal Disability Retirement benefits under FERS or CSRS.  While logic and argumentation are the chosen methodology of attack, it is the stringing of descriptive words to create concepts; the sequencing of concepts in order to provide complex compounds of winning arguments; and the totality of language in order to convey meaning, persuade and bring about agreement. 

In Administrative Law arenas, especially in the law of Federal Disability Retirement, it is especially important to have the ability to describe, delineate, argue and persuade — because the package of persuasion is in written format — and the reader (a claims clerk at the Office of Personnel Management) does not know the disability retirement applicant personally, and only comes to know the issues, the person, the medical condition, and the intertwining compexity of the medical condition upon the person, through the words which are put together.  As such, how a Federal Disability Retirement packet is put together, which words are chosen, too few, too many, and what definitional arrows are meant to be conveyed, not only comprise part of a Federal Disability Retirement application; in many ways, it comprises the entirety of the process.

Sincerely,

Robert R. McGill, Esquire

Federal and Postal Disability Retirement: Approaches & Decisions

With each case, a story must be told.  If the case gets denied, normally my approach is not so much that a “narrative” must be retold, but rather, I tend to view the Reconsideration Stage of the Federal Disability Retirement application process more as the “battle” to set the proper stage — to either win at the Reconsideration Stage, or to win at the Merit Systems Protection Board stage.  What is interesting is that, within the three stages of the process (excluding the appellate stages of the Full Board Review and the appeal to the Federal Circuit Court of Appeals), the need to tell a coherent, empathetic, sympathetic and compelling story of a dedicated and loyal Federal employee who suffers from a medical condition such that it impacts him or her from performing one or more of the essential elements of one’s job, comes “full circle”. 

I approach the “Reconsideration Stage” of the Federal Disability Retirement process under FERS & CSRS as the “center point” of battle, in many ways, precisely because it is the step just before taking it before an Administrative Judge at the Merit Systems Protection Board.  It is the place to give the Office of Personnel Management a subtle warning:  This is your last chance before the destiny of the Disability Retirement Application is taken completely out of your hands and control, and placed into the hands of an Administrative Judge.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Legal Arguments

Whether and to what extent legal arguments in Federal Disability Retirement cases under FERS or CSRS should be made, should rarely be ventured into by non-lawyers.  The boundaries of legal arguments are naturally constrained for lawyers both internally and externally:  internally, because (hopefully) lawyers are trained to recognize that maintaining the integrity of legal precedents is vital to the process, and externally, because all legal arguments are ultimately subjected to the review of a Judge — in the case of administrative laws governing Federal and Postal Disability Retirement, at the first instance by the Administrative Judge at the Merit Systems Protection Board, then potentially at the Federal Circuit Court of Appeals.  When laymen attempt to make legal arguments, there is the added danger of misinterpretation and mis-application of the law, which can further injure the chances of an Applicant filing for Federal Disability Retirement benefits to obtain an approval.  And, finally, such chances for success may be further damaged if it needs to come before an Administrative Judge for review.

Sincerely, Robert R. McGill, Esquire

OPM Disability Retirement: Termination (Part 2)

There are times when an Agency will proceed and terminate a Federal or Postal employee based upon adverse grounds — of “Failing to follow proper leave procedures”, for being AWOL, for Failure to do X, Y or Z.  Such adverse actions may be the “surface” reason for the actual, underlying reason — that of one’s medical inability to perform one or more of the essential elements of one’s job.  Once a proposed termination becomes an actual termination, then the course of action to take, of course, is to file an appeal with the Merit Systems Protection Board.  An Administrative Judge can often be of great assistance in defining and narrowing the issues, and in gently persuading and convincing the Agency to consider changing and amending the “surface” reason to the true, underlying reason of medical inability to perform the job.  The goal here, of course, is to do everything to help in “weighting” a disability retirement application in your favor, and while obtaining the Bruner Presumption in a case is not critical, in many cases, it can be helpful.  And the way to get the Administrative Judge on your side, so that the AJ will then try and persuade the Agency to consider amending a removal, is to obtain well-documented, well-written medical narrative reports from the doctors.  As is almost always the case, the underlying basis for any disability retirement application begins and ends with a well-written medical report.

Sincerely,

Robert R. McGill, Esquire