OPM Disability Retirement: Laws, Facts & Persuasive Argumentation

In preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS, it is important to distinguish between laws, facts, and persuasive argumentation, as well as the targeted audience to whom such distinguishing elements are being conveyed.

For the first two “stages” of the administrative process, the Federal or Postal employee will be addressing personnel at the U.S. Office of Personnel Management.  This is merely at the “administrative”, or “agency” level of the process. Thus, the initial review, analysis, and application of the legal criteria will be performed by a non-lawyer, and any application of a legal criteria to determine the eligibility of the Federal Disability Retirement application will be done in a rather mechanical manner.  

By “mechanical manner” is merely meant that the criteria to be applied is merely an extrapolated generic form of interpretation, and will be applied by comparing the “list” of legal criteria against the submission of the Federal or Postal employee.  Whether there is sufficient justification in the medical report and records; whether the description of the Federal or Postal employee’s job comports with the official position description; whether the agency has offered an “accommodation”, and if so, in what form; whether a reassignment to another position at the same pay or grade was offered and declined — and other applicable criteria will be applied, analyzed and annotated by the OPM Representative.  

If the Federal Disability Retirement application is denied at this initial stage of the process, then it will again be reviewed at the Reconsideration Stage of the process — assuming that the Federal or Postal employee files a timely Request for Reconsideration with the Office of Personnel Management.  

It is at the next stage of the administrative process — an appeal to the Merit Systems Protection Board — that any legal argument will ultimately begin to carry significant and relevant weight.  For, at the MSPB, an Administrative Judge will review the entire file, and proceed to conduct an administrative hearing “de novo”, or “fresh” or “anew”, and weigh the evidence, the legal arguments, and determine the persuasive impact of either or both.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Medical Disability Retirement: Words

Words are peculiar entities; a mode of communication in a world of multiple methods of choosing which vehicle of conveying a concept, a descriptive word picture, an anticipated action; a historical event; a desire, a need, a want; and thus, the choice of which modality of communication to use, based upon effectiveness, utility, and context, is important.

The macro-choice of mode of communication, once chosen, then leads to the micro-choice of which words will be plucked from the universe of words. Whether from a Wittgensteinian perspective where language games merely parallel the “real world” out there, or the classical approach of words as representing such a world, the utility and effectiveness of words is an important determination in preparing, formulating and filing a Federal Disability Retirement application from the Office of Personnel Management, whether under FERS or CSRS.

Ultimately, for purposes of a Federal Disability Retirement application, the Federal or Postal employee is seeking the usage of the most effective word-choices.

In preparing and formulating the Applicant’s Statement of Disability (Standard Form 3112A), it is important to extrapolate from the total universe of words, those which will convey the meaning, delineate the concept, and evoke the proper emotive responses, as reflected accurately in comparison and contrasted with the words utilized by the doctors, the Supervisor, the Agency, etc.

Word choice is important.  Preparing and formulating a Federal Disability Retirement application is not just a matter of gathering the medical documentation and filing it. If that were the case, anyone and everyone could compile the data and submit it. Rather, it is the efficacy of words chosen which determine the success or failure of the entire endeavor; for, as words evoke a response, the person to whom a case is assigned at the Office of Personnel Management must read, analyze, evaluate, and ultimately decide based upon the words chosen.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Government Employees: Being Persuasive

In preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS from the Office of Personnel Management, there are certain “advantages” which a Federal or Postal employee/applicant may already possess from the outset, without having filed a single piece of paper with the Office of Personnel Management.  

These advantages may include:  an agency action removing the Federal or Postal employee from Federal Service based upon one’s medical inability to perform one or more of the essential elements of one’s job; an Air Traffic Controller receiving a disqualification by the Flight Surgeon; an OWCP-accepted claim where a Second Opinion doctor writes a comprehensive report and answers definitively that the Federal or Postal employee has a permanent medical condition which will prevent him or her from ever returning to his or her former job; a Supervisor’s Statement which clearly delineates and describes the extent of the Federal or Postal employee’s medical condition based upon observation and agency-impact; and multiple other “advantages”.  However, an advantage fails to become so, and remains only in a state of potentiality, unless it is actualized by being utilized effectively.  By “effective utilization” is meant that, just as one can be persuasive only by persuading, so one can effectively utilize an inherent advantage in a Federal Disability Retirement application only by persuasively arguing that the particular agency action has a legal basis in which the action itself is legally persuasive.  

In other words, the proper legal citations which have been mandated previously by a Judge in another case, must be cited and referred to, in order to use it as an argumentation basis to the Office of Personnel Management.  One cannot persuade unless one engages in persuasive conduct — and that means that one must not go out blindly into the field and use a scythe as a hammer, but be able to recognize the tool for what it is, then to use it accordingly.

Sincerely,

Robert R. McGill, Esquire

Federal and Postal Disability Retirement: Legal Standard & Persuasion

There is a distinction between the existence of a legal standard and the citing of such legal standard — to include statutory references, case-law citations, etc. — and the art of persuasion.  In reviewing Federal and Postal Disability Retirement applications which have been previously prepared, formulated and submitted by unrepresented Federal and Postal employees, which have been denied, it is often refreshing to see how laymen (i.e., “non-lawyers”) have utilized cases and case-law citations (often straight from some of my articles and blogs) in arguing his or her case. 

The problem with such an approach, however, is that the unrepresented Federal or Postal employee will often refer to such legal standards without engaging in the necessary art of persuasion.  Legal standards are certainly there to be used; however, there is a proper way and methodology of utilizing legal standards, and an improper way.  The improper way is to use the legal standard as a hammer — of stating:  X exists and states Y, therefore you must conclude Z.  The proper methodology in utilizing a legal standard is to engage in the art of persuasion:  X exists, and X determines why Y must come about, and therefore Z should be the logical conclusion, and here are the reasons why. 

Normally, I advise against non-lawyers using the law precisely because of the potential mis-application of the methodology.  Leave the law to lawyers; that is why lawyers are hired.

Sincerely,

Robert R. McGill, Esquire

Federal and Postal Disability Retirement: Argument, Persuasion & Logic

Filing an application for Federal Disability Retirement benefits under FERS or CSRS, either by a Postal employee or a non-Postal, Federal employee, is an administrative process which “requests” that a certain benefit be paid by the Federal Government.  In order to be approved, one must prove, by a preponderance of the evidence, that one has met the eligibility criteria that has been set forth through statute, regulation, and cases which have interpreted those statutes and regulations over the years.  Thus, like any other area of law, there is a large pool of legal issues which have arisen over the years.  Because of this, it is important to understand that a certain amount of argumentation, persuasion, and logical analysis and delineation must occur.  Many people are surprised when, after submitting the “paperwork” and attaching some medical documents to the application, that the Office of Personnel Management would deny the applicant’s submission, saying with surprise, “I thought it would be easy”.  In any area of law, administrative or otherwise, where the pool of issues has grown over many decades, there must be a level of argument, persuasion and logic which must be engaged.  The legal arena for being approved in a Federal Disability Retirement case for those under FERS or CSRS is no different.

Sincerely,

Robert R. McGill, Esquire