FERS & CSRS Disability Retirement: Making the Legal Argument

Legal arguments are merely a subset of ordinary ones; as variations of the facetious quip goes, if the facts are not on the lawyer’s side, then he will argue the law; if the law is not, he will argue the facts; if neither, then he will attempt to confound and obfuscate both.

By sequence of logical argumentation, it is self-evident that “facts” must be the first order of presentation; then, persuasive discussions concerning those facts, forming and molding a given perspective (for there is surely a distinction to be made between that which “is” and that which “is seen” by a particular individual, bringing in the subjective component of interpretation and conveyance of information); and only after the facts have bespoken should persuasive efforts follow; and then, the legal argument to be made.

Thereafter, the question of how aggressive a legal argument; of pounding like a hammer, or the subtle tap of the constant but insistent drumbeat, guiding the listener with a roadmap as to why a decision should be made pursuant to persuasive force, or threats of further legal action.

For the Federal and Postal worker who is trying to have a Federal Disability Retirement application approved, the art of persuasion, the effective use of legal argumentation, and the delineation of factual roadmaps must be coordinated with the utmost of care.  Administrative processes are often replete with frustrating procedures to follow, and it is a dangerous endeavor to allow for one’s frustration to erupt when dealing with a bureaucracy which is rarely responsive, and normally unaffected by the most dire of circumstances.

Thus, in sequence of logical argumentation: The facts as portrayed in as objective a manner as possible; the interpretation of the facts, such that the subjective perspective is insightfully applied, but without the overuse of the “I’ or “me”; argumentation; then, and only then, the applicability of the law.

Federal Disability Retirement is a benefit offered to all Federal and Postal employees who meet the minimum eligibility requirements of time in Federal Service, age and a level of medical evidence which must be carefully and thoughtfully presented.

As such, for the Federal or Postal worker who intends on filing for the benefit of OPM Disability Retirement, whether under FERS, CSRS or CSRS-Offset, the art of factual and legal argumentation must be presented with persuasive force, often like the slow dripping of an unconstrained faucet, as opposed to the break of a dam.

Sincerely,

Robert R. McGill, Esquire

Postal and Federal Disability Retirement: The Volume-based Application

A declaration of the sheer volume of medical evidence submitted is often an indicator of the basis for which a Federal Disability Retirement application was formulated; for, in the end, if reliance of the successful outcome of a Federal Disability Retirement application is expected based upon the longevity and extent of a medical condition, the chances of an initial approval may be somewhat compromised to begin with.

Volume can never replace content; and from the perspective of the U.S. Office of Personnel Management, there is often an underlying suspicion that receipt of a thousand pages of medical documentation indicates merely that volume of treatment is being substituted for the substantive content of meeting the required legal standards.

Much of medical notation and treatment records merely reflect a particular appointment’s mechanical applications — continuation of previous treatment plan; refill of prescriptions; standard positive or negative responses to particular questions; prospective treatment modalities; and, as supportive evidence attached to a substantive medical report, they can reinforce the satisfaction of the legal criteria of establishing the necessary nexus between one’s medical condition and the inability to perform the essential elements of one’s job.  But left as a replacement for the doctor’s explicit statement confirming such a nexus, it remains a hollow voice within an expansive but empty chamber.

One should never mistake the legal distinction between “primary” evidence and “supportive” evidence.  The former is meant to establish the nexus between one’s medical condition and the essential elements of one’s job; the latter is submitted to reinforce the former.  When one utilizes the former as the substitute for the latter, it is like the self-delusion that just because you are the best player on a pick-up team in your neighborhood, you are ready to enter into the world of professional sports.

Sincerely,

Robert R. McGill, Esquire

Postal and Federal Disability Retirement: The Beast of Burden

The burden is undertaken by those have little choice in the matter, but who willingly submit to the responsibility and obligation.  Traditionally, the “beast of burden” (other than being a Rolling Stone song) refers to a somewhat-domesticated animal, perhaps a donkey or an ox, who must bear the weight of man’s work.

In law, the “burden” is one of proof — of the affirmative obligation to present one’s facts, persuasive argumentation based upon such facts, and the application of the relevant law which supports both the facts and the arguments.  The “other side” in the litigation has no burden at all, and can simply sit and do nothing, if he or she so chooses, and see whether or not the plaintiff, the appellant or the Federal Disability Retirement applicant has submitted sufficient proof such that he or she has met his/her burden of proof.

As the weight placed upon a beast of burden is often heavy and demanding, so in a similar vein the litigant who has the burden of proof should always expect to exceed what is “necessary” in any given case.  For the Federal or Postal employee who is filing for Federal Disability Retirement benefits through the U.S. Office of Personnel Management, whether under FERS or CSRS, it is indeed a heavy burden to bear in order to meet the legal criteria of a Federal bureaucracy who has the unmitigated power and authority to approve or deny.

The burden of proof — it is as heavy as that which we place upon a beast of burden, and the weight of such responsibility can overwhelm us, lest we have the reserve of strength to plod onward.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Horns & Whistles

Acoustic signaling devices and technological innovations in repackaging information can convey a sense of “newness” and a refreshing sort of alternate sensory perception; however, ultimately, the substantive information which must be presented will require tackling the hard elements of a case.

In presenting a Federal Disability Retirement case to the Office of Personnel Management, whether under FERS or CSRS, it is important to distinguish between the foundation of the case, as opposed to the “extras” which one may add.  It is like the analogy of the great and master chef who thinks so highly of his or her own skills, that the preparation of the main meal of a course is done without the primary ingredient.  Even the most unrefined and coarse connoisseur can recognize when the steak is missing from a steak dinner.

Thus, in a FERS or CSRS Disability Retirement case, while one’s statement of disability may be persuasive; while “other evidence” by the agency, coworkers, etc. may establish a perspective of medical disability, the foundation of the nexus between one’s medical condition and the positional duties required must be established by the substantive essence of the case — the medical evidence itself.

Don’t mistake the periphery for the center; don’t be fooled by horns and whistles; much noise does not make up for the central requirement in any endeavor.

Sincerely,

Robert R. McGill, Esquire

Federal Gov. and USPS Disability Retirement: Overlapping Patchwork

When multiple hands work on a single project from different directions, the patchwork of designs may reveal the lack of coordination; yet, the beauty of the diversity in pattern, color, dimension and creativity may make up for such lack of uniformity.  Thus, lack of uniformity need not mean that the end-result lacks beauty; and, indeed, lack of conformity can in and of itself be a form of delicate attraction.

But human beings possess an innate desire for a sense of logical comprehension, and while overlapping patterns may possess a beauty of diversity, anarchical presentation of exploding colors and patterns must ultimately be brought together into some semblance of coordination.

There is, of course, a distinction to be made between art and mathematics; between artistic endeavors, which may bend the rules of uniformity, as opposed to a cohesive and comprehensible presentation in the form of a persuasive argument.  In law, an overlapping patchwork of arguments may unintentionally hit the mark; but you would not want to rely upon such an imprecise approach.

In preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, the approach of culling together a patchwork of arguments — borrowing a report from one’s OWCP doctor; arguing that because one received a percentage rating from the Department of Veterans Affairs, the relevance upon an OPM disability retirement application should be of X consequence; extrapolating language from an SSDI decision — while all of these are of some consequence, each must ultimately be garnered into a coherent whole.

It may well be that one’s Federal Disability Retirement application began as a patchwork of information; in the end, however, it should be the hand of a single artist who reworks the pattern into a cohesive whole.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: The Foundational Paradigm

Ultimately, Federal Disability Retirement is based upon the persuasive delineation of three primary elements:  A medical condition; impact of the medical condition upon one or more of the essential elements of one’s job; and an inability on the part of the agency to accommodate the resulting impact of the medical condition upon one’s inability to perform all of the essential elements of one’s job.

How one proceeds to “prove” the case; what “kind” of evidence one needs to provide; the qualitative nature of the proof to be submitted; the quantity and volume of the type of evidentiary submissions to be included; these are determined by necessity based upon the nature of the medical condition itself.

Thus, some medical conditions may require merely a few pages; others, extensive supporting documentation, including treatment notes, diagnostic test results, explanatory clinical encounters and narratives which show a history of treatment-resistant modalities of medical applications as well as fulfillment of such extensive attempts which validate that the patient/applicant is not a “malingerer”, but rather exhibits symptoms which defy traditional approaches both for diagnoses and treatment.

It is always upon the first of the three elements identified which forms the foundational basis of a Federal Disability Retirement application; the sequential nexus of the two following almost creates itself, like the phoenix arising from the ashes, only in this case, from the debilitating medical condition from which one suffers.

Sincerely,

Robert R. McGill, Esquire

Medical Retirement Benefits for US Government Employees: The Narrative of Emotion

Often, when one has been embroiled in a prolonged battle with another person, an organization, agency, etc., the embattled state itself takes on a life of its own, and decisions which should be based upon a rational perspective, what is in one’s best interest, etc., are cast aside.  That is why divorce proceedings — ones which involve little children — are such traumatic events to witness.  But domestic relations litigation is not the only type of proceedings which tear at one’s soul.

Often, a Federal or Postal employee will be involved in countless years of procedural and administrative litigation — including EEO filings, formal grievances, lawsuits filed in Federal courts, etc. — which take their toll upon one’s family, one’s career, and one’s health.  Sometimes, the engagement of litigation becomes a way of life, and the daily turmoil constitutes the norm by which one lives.

When one’s health is impacted, however, the Federal or Postal Worker who considers filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, will sometimes allow for the years of battle to cloud one’s judgment.  While historical narratives concerning the background of one’s medical conditions may be somewhat appropriate in preparing and formulating one’s Federal Disability Retirement Applicant’s Statement of Disability, one should be cautious in filing a narrative of emotion — that exhaustive rant against a particular supervisor or coworker; against the agency; and against the world which has turned into an enemy of daily turmoil and emotional upheaval.

Focus upon the essence of a Federal Disability case.  It may be time to leave behind that prolonged state of embattlement, and find a quiet spot in the pasture of one’s future, and enjoy a day of peace by securing one’s future with a Federal Disability Retirement annuity.

Sincerely,

Robert R. McGill, Esquire

Postal and Federal Disability Retirement: The Efficacy of an Argument

If a security system is never triggered, can one conclude that it has been effective?  Is the failure of a system more telling than its lack of use?  Can the negation of a fact be used to prove its existence and the validity of a theoretical construct?  Can one argue, See — X did not occur; therefore Y must have occurred?  In terms of pure propositional logic and its internal system of validity, one can conclude that certain logical constructs are on their face invalid and contain fallacies.

This was one of Wittgenstein’s points concerning human language games:  the very self-contained artifice of the universe of meaning possesses no reflective correspondence to the physical world; and, in today’s parallel universe of the Internet, Facebook, Twitter, emails, etc., the technological artifice which encapsulates so much of our lives only serves to exponentially magnify such lack of corresponding significance.

In making legal arguments in an OPM Disability Retirement application, whether under FERS or CSRS, it is often important to understand the context within which the legal argument is being made.  One never knows whether, and to what extent, any particular legal argument is effective; and sometimes all that can be made is the pretext of the argument, and to leave the substantive impact for future application.

For example, does the fact that a person has received a “proposed removal” have the same impact as one who has in fact been removed for his or her medical inability to perform one’s job?  Or, similarly, does a person who receives a VA rating determination of “unemployability” have the same impact as one who is allocated with a 90% disability rating, arrived at through various lesser ratings and combinations thereof?

The effectiveness of any argument will depend upon the level of persuasion employed; the level of persuasion will be contingent upon the validity of the sequential connections of often independent logical statements; and the force of a conclusion will be determined by the strength of its weakest link.  If an argument of negation must be employed, take care to do so by linking it to an undeniable fact.

Sincerely, Robert R. McGill, Esquire

Disability Retirement for Federal Government Employees: Legal Arguments

Legal arguments represent a peculiar form of persuasive argumentation; by appealing to statutory authority, precedents as set by prior court cases and administrative legal opinions, as well as decisions rendered in previous decisions — the foundation of a legal argument rests upon the validity of that which occurred prior to one’s own case.

That is why, in making a legal argument, lawyers argue “by analogy” — via similarity of factual context, as a logical proposition:  X resulted in Y; the factual circumstances in A are similar to X; therefore, A should similarly result in Y.  It is not, in terms of pure syllogistic logic, a valid one to make; for the dissimilarities between A and X may well determine the outcome as to Y.

Further, familiarity with the underlying reasoning of a legal opinion is essential to making a valid legal argument.  That is why non-lawyers who attempt to cite case-law and legal authorities as a basis for their Federal Disability Retirement often fail, and fail miserably:  while it may be the right case-law to cite, the analogy may not fit the context.  In preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, it is not only important to create the nexus between one’s medical condition and the positional duties of the Federal or Postal job; moreover, it is essential to make the logical and legal argument in a persuasive, effective manner.

According to an Aristotelian approach, man is indeed a rational animal, and rationality is effectively pursued through a logical methodology; but what is not stated in such an approach, is that rationality and logic do not constitute the entirety of the universe of human persuasion; legal argumentation is merely one facet of the society within which we must live; in the context of a Federal Disability Retirement application, it may play a major part; and that is why citing the right case, making the proper analogy, and creating the logical nexus between facts and “the law”, is essential to a successful outcome in a Federal Disability Retirement application, whether under FERS or CSRS.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Government Employees: Extensive Evidence

When first encountering the vastness of the sea, the young child pointed to it and said to his father with a breathless sense of wonderment and awe.  “It’s like a big swimming pool,” the child said.  “It won’t taste like one, though.  And do you see the waves?”  The boy stood in silence.

The mystery of the world, its infinite puzzlement, in contrast to man’s vain attempt to artificially recreate a semblance of its beauty, revealed itself to the child’s uncorrupted eyes.  Only a child whose first encounter with creation could see the true nature of being; the rest of us, compromised by age, cynicism and self-indulgence, would forever be blind to its breathless scope of beauty.

Such a slice of life story is meant to illustrate the distinction between substantive extensiveness, and a smaller version thereof, in preparing, formulating and filing for Federal Disability Retirement benefits under FERS or CSRS, from the U.S. Office of Personnel Management.  Volume of evidence (i.e., likened to “the ocean”) can be persuasive; yet, if it is merely an elaborate pool, then lack of substance may undermine its own efficacy.  On the other hand, a short but “to-the-point” medical report may be very effective, precisely because it is exactly what it was meant to be:  without much fluff, the doctor is unequivocal in his or her medical opinion.

The point throughout is that there is never a science in the compilation of proof in formulating an effective Federal Disability Retirement application.  Or, to put it another way:  don’t try to recreate something which cannot be copied; sometimes, the evidence is what it is, and how one presents the evidence will make all the difference.

Sincerely,

Robert R. McGill, Esquire