Federal Worker Disability Retirement: Algorithms & Human Peculiarities

In maneuvering through the process of filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, there are potentially multiple stages that one may encounter:  The First Stage of the process — the initial filing; if denied, one has a right to have the denial “reconsidered” by filing a Request for Reconsideration within thirty (30) days of the denial; if denied by OPM a second time, then one has a right to file an appeal to the U.S. Merit Systems Protection Board, before an Administrative Judge.

There are, beyond the three stages identified, additional appellate stages of the process, including a Petition for Full Review before a 3-Judge panel of the MSPB, as well as an appeal to the Federal Circuit Court of Appeals.

At each stage of the process, the Federal Disability Retirement application is reviewed and evaluated for sufficiency of proof and satisfaction of the statutory criteria for eligibility; and, moreover, a different person looks at the application at each stage of the bureaucratic process.

Thus, there is no singular algorithm — no application of a computer model which is identical across the board — in the evaluation of one’s Federal Disability Retirement application.  Instead, a different person reviews and evaluates the Federal Disability Retirement application at each stage.  This is probably a positive approach, and one which would be deemed “fair” by any objective standard.  For, while an application of a standard algorithm may be deemed objectively impersonal and unbiased, whereas human beings, in their inherently fallible nature may indeed possess biases and inclinations; nevertheless, it is the peculiarities of human imperfections which are still the trusted traits for procedural determinations.

That is why there is such a hue and cry over the increasing use of video replays and electronic line judges in sports; for some reason, we still trust in the human perspective, as opposed to the cold hardware of computers.  Perhaps, in our collective childhoods, we all became paranoid from watching HAL 9000 in Kubrick’s 2001:  A Space Odyssey.  A shivering thought.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: The Human Element & Application of the Law

It may well be that technological advances will one day allow for imputed algorithms to precisely calibrate and decide everything in life; but for the time being, we must all deal with the human element in the process of decision-making.  

Comparative stories abound about how X obtained disability retirement benefits with minimal documentary proof, and even less of an actual medical condition.  It is always an anomaly as to how one can possibly answer the query which involves the following:  “X told a friend of Y, who knows of Z who filed and got his Disability Retirement benefits approved within T-amount of time”.

The particulars of each case must always determine the outcome of the case; some stories become inflated with the telling of the narrative when passed through third parties multiple times; but, on the other hand, there is the possibility that the final narration of the story is entirely true.  The reason is because the human element is still the determinative factor in any Federal Disability Retirement application.  

There is no computerized algorithm which is applied in making a determination at the U.S. Office of Personnel Management.  And, so long as human beings continue to remain a part of the administrative, bureaucratic process in scrutinizing a Federal Disability Retirement application, by analyzing the content and substance and applying the relevant laws, there will never be a perfect continuity or consistency of application.  

In some ways, this is a good thing; for, as each human being is unique, so the story of each medical condition and the impact upon one’s inability to perform all of the essential elements of one’s positional duties, in preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, is also particularized and unparalleled.  May it be so in the future, lest we ourselves become mere drones in this world of conventionalized perspectives.

Sincerely,

Robert R. McGill, Esquire

Federal Worker Disability Retirement: Application of a Neutral Legal Criteria

The application of law upon determination of a Federal Disability Retirement application is based upon a set of criteria which focuses upon the impact of a medical condition on the Federal or Postal employee’s ability or inability to perform all of the essential elements of his or her job.  Thus, it is different from other government programs or compensation benefits, in that it ignores such issues as causality or prima facie accepted medical diagnoses.

Indeed, one can have a serious medical condition and still be denied one’s Federal Disability Retirement application if one fails to show the nexus, or the impacting connection, between the serious medical condition and one’s ability/inability to perform all of the essential elements of one’s Federal or Postal job.  In that sense, the applicable legal criteria is neutral in its very essence:  first, the Office of Personnel Management should (obviously) apply the law in a “neutral” manner, without regard to the person who applies, or be influenced in any way by the agency; but, moreover, and more importantly, the law itself is neutral to the extent that it makes no judgment upon the medical condition itself — only upon the medical condition in conjunction with the impact to one’s ability/inability to perform the essential elements of one’s job.

As such, in preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, the primary focus in attempting to prove this point — both from a medical perspective as well as from the applicant’s approach — should be to emphasize the connection between the diagnosed medical condition and the essential elements of one’s job, and not merely upon the seriousness of the former.  Only in this way can the neutrality of the legal criteria properly assess the viability and force of one’s Federal Disability Retirement application.

Sincerely,

Robert R. McGill, Esquire

Federal Worker Disability Retirement: Criteria & Proof

In preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS, a two-step process (at a minimum) must be engaged in when compiling the foundational presentation of a Federal Disability Retirement application.  

First, a thorough reading, comprehension and understanding of the “what” in reviewing the criteria applicable for eligibility and entitlement to a Federal Disability Retirement application:  What does it say?  What is required?  What type of evidence meets the requirements?  And sometimes just as importantly:  What has previously failed to meet the requirements?  

Thereafter, once the conceptual framework of grasping and understanding the “what” of the process, and proceeding to gather the information requested in preparing and formulating one’s Federal Disability Retirement application under FERS or CSRS, then the pre-filing conceptual stage of the second-order should be engaged in:  “Whether”.  

Whether what is gathered is sufficient to meet the legal criteria necessary to be eligible and entitled to Federal Disability Retirement benefits under FERS or CSRS; whether it is either (or both) qualitatively and quantitatively sufficient to meet the legal criteria for eligibility.  The “whether” question is a much more universal one, in that it must encompass the full panoply and compendium of the evidence gathered.  Not that it cannot be supplemented at a later date (it can), although there are restrictions and limitations imposed by what is delineated on one’s Applicant’s Statement of Disability (SF 3112A).

Understanding the conceptual distinction between the “what” and the “whether” is an important mental exercise to undertake, if only on a superficial level of making one pause for a moment to consider whether the extensive effort one must endure will be worthwhile.  

It is better to take the necessary and sufficient time at the outset, than to find out after much effort has been expended, that both the “what” and the “whether” have been insufficient to meet the basic legal criteria for eligibility for Federal Disability Retirement benefits under FERS or CSRS from the Office of Personnel Management.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: “It May Sound Good”

There is the statutory legal criteria which is mandated by law, by case-law, and by regulatory dictum as to the proper application of review in making a determination on a Federal Disability Retirement application, whether under FERS or CSRS.  Yet, the question is whether or not the Office of Personnel Management has applied the proper legal criteria in making its determination, and the answer to such a question can only be evaluated based upon the language which is utilized by OPM in its denial letter. 

An approval letter issued by the Office of Personnel Management is entirely unrevealing, precisely because it is simply a template letter advising the approved Federal Disability Retirement annuitant of the next steps to follow.  However, when a denial letter is issued by the Office of Personnel Management, often the Claims Representative will insert language which “sounds good” and proper, and even convincing — but ultimately, wrong as far as the proper application of the law is concerned.  For example, OPM may assert with unequivocal brevity that there lacks “compelling medical evidence” in the Federal Disability Retirement application.  “Compelling” is not a legal criteria required by statute, case-law, or regulatory dictum.  As such, it is a meaningless word-usage.

Moreover, it is harmful to a case because it means that OPM applied a standard of review which is nowhere found in any statute.  Further, it gives an appearance of authenticity and authoritative credibility where none exists.  What to do about it?  It needs to be addressed and pointed out — but diplomatically.  Diplomacy is nothing more than a forceful rebuttal clothed in the finery of courtesy, but it is a necessary ingredient in establishing the proper tone and tenor of a response to OPM.

Sincerely,

Robert R. McGill, Esquire

Medical Retirement Benefits for US Government Employees: Meeting the Statutory Minimum

In preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS, the Federal or Postal employee must prove, by a preponderance of the evidence (that burden of proof which is fairly minimal in the order of difficulty, requiring that a Federal or Postal employee show that he or she is “more likely than not” entitled to Federal Disability Retirement benefits under FERS or CSRS) that the compilation of the evidence meets the statutory requirements such that one is eligible and entitled to Federal Disability Retirement benefits.  

Thus, it is the cumulative set of evidence which is reviewed by the Office of Personnel Management, and not merely a single piece of evidence.  Yet, the manner and methodology of how OPM reviews the evidence is revealed in any given denial letter issued by the claims representative, or the “Legal and Administrative Specialist” assigned to any particular case.  

It is a methodology of (A)  listing whatever medical evidence which was submitted by naming the doctors, thereby giving an appearance of a full and thorough review of the documents, and (B) selectively extrapolating statements made by the Applicant, the Supervisor, the doctor(s) and anyone else in attempting to undermine the conclusion that the statutory criteria for eligibility has been met.  In laymen’s terms, this is called, “Taking potshots” at something.  If meeting the criteria for eligibility is to show a sequence of connecting dots from point A to point B, then OPM’s view is that if there are enough potshots which sever the line between the points, then OPM has shown that a Federal or Postal employee is ineligible for Federal Disability Retirement benefits.  

This is the approach; it is up to the applicant who is preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS to ensure that any weak links in the line are sufficiently reinforced.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement for Federal and USPS Workers: The Process of Eligibility

The problem with possessing power is that it must be accompanied by truth, validity and rational foundations, if it is to be effective over the long term.  

In filing a Federal Disability Retirement application under FERS or CSRS, there is the process of proving one’s eligibility by meeting the burden of proof, termed as the “preponderance of the evidence“.  A disagreement can occur during the process, in that the Representative from the Office of Personnel Management can deny the Federal Disability Retirement application.  

Such a denial can occur twice at the OPM level — at the Initial Stage of the process, then at the Reconsideration Stage of the process.  OPM possesses the power to approve or deny each Federal Disability Retirement application.  Often, however, the denial itself fails to be accompanied by a rational discourse which strives to meet the high standards that a Federal Agency should always adhere to — guided by the truth and validity of any claims made in a denial letter.  Too often, the discourse which is the basis of the denial merely regurgitates a series of template-like statements, and then the OPM denies the claim.  

Fortunately, however, OPM is not the only Agency which makes the determination during the entirety of the process.  After the second denial, it then loses its jurisdiction over a case, and an appeal can be made to the Merit Systems Protection Board.  

The integrity of the entire process depends upon the independence of the MSPB in reviewing all such cases, and indeed, the Administrative Judges at the MSPB review each case carefully, with an open mind, and with the proper application of the law.  Each Judge must render a decision which contains the rational basis of a decision, based upon precedents and statutory legal underpinnings.  To have the full benefit of the process is indeed the basis of a system with integrity.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Government Employees: The Medical Records

Federal Disability Retirement under FERS & CSRS is essentially “connecting the dots” between one’s medical conditions (whether singular or multiple) and the impact of the medical condition(s) upon one’s ability to perform all of the essential elements of one’s job.  The treatment records, also, are helpful in the matter of connecting the dots, as the Office of Personnel Management will often request a copy of the medical records — evidence of treatment over the years — in order to ascertain the extent of the medical conditions claimed.  

This can sometimes present a problem, when a Federal or Postal employee has switched doctors, has quietly endured the pain of the medical condition with little or no treatment over the years, or where the doctor fails to annotate any legible or detailed notes in his or her treatment notes.  Normally, however, there is a consistency of evidence between treatment/office notes and the medical narrative which the doctor prepared; or, between the diagnostic results and the clinical findings and conclusions of the treating doctor.  Where there is a lack of medical records “backing up” the narrative report of the doctor, often a Functional Capacity Evaluation or an “independent medical evaluation” by a referral doctor will help a case.  As always, there are ways to counter the problems which arise, in order to meet the eligibility criteria as proposed by the Office of Personnel Management in a Federal Disability Retirement case.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement for Federal and Postal Employees: Causality

Hume’s exposition on causality is both interesting and instructive in terms of looking at the validity of an argument.  In this instance, we are obviously making an analogy with how the Office of Personnel Management, and to a larger degree, people in general who make a causal argument and declare that it is a ‘valid’ argument.  David Hume’s argument on causality essentially states that there is nothing in the world other than two independent events (which we merely deem as ’cause’ and ‘effect’), which we repetitively witness.  However, because there is no ‘meta-factor’ beyond the independent events, what he terms as a ‘necessary connection’, therefore there is no certainty beyond a repetition of events.  Thus, Hume argues that we actually never see anything ‘new’ — no ‘necessary connection’ between cause and effect, in the 100th time we observe an event, any more than the first time. 

This is, indeed, analogous to how the Office of Personnel Management views rendering a denial in a Federal Disability Retirement application under FERS or CSRS. Look at the lack of logical argumentation in an OPM denial.  It is a series of independent events, delineated and categorized in some semblance of chronological order (perhaps the order that the OPM Representative read the medical documentation):  Dr X says this; Dr. Y says that; then the effect:  “The medical evidence fails to meet the criteria for eligibility for Federal Disability Retirement.”  Like Hume’s description of the world, there lacks a ‘meta-factor’.  Whether the stated causes have any connection (see the analogy?  It is like Hume’s reference to “necessary connection”) to the “effect” is entirely irrelevant.  Events do not need to justify the decision.  It is acceptable to merely refer to medical documents and then come to a conclusion, without any need to justify the validity of an argument.  But, then, that seems to be how most people in the general population formulate an argument these days — based upon how one “feels”.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: OPM May Say So, But… (Part 2)

Then, of course, there are the multiple “other” issues which the Office of Personnel Management “says so”, such as failure to pay the full amount of back-pay due; failure to compute the average of the highest-3 consecutive years correctly; reinstating the full amount of FERS once a person becomes no longer eligible for Social Security Disability benefits; arbitrarily and capriciously deciding that the medical report is not “good enough” in answering a post-disability approved, Medical Questionnaire; failing to compute the earned income in any given year properly, and thereby informing the disability retirement annuitant that he or she earned over the 80% limit of what the former federal employee’s former job currently pays; and a host of other issues.  My specialty is in obtaining disability retirement benefits for my clients; I only selectively get involved in post-disability annuity issues, but the point here is that the Office of Personnel Management has a track-record of being in error, in multiple ways, on multiple issues, in volumes of cases. 

It is thus important to recognize that the Office of Personnel Management is not an infallible agency.  Far, far from it, they are merely made up of people who are subject to error, but often stubbornly so — unless you counter their denial in an aggressive, but calm and rational manner.  If a denial comes your way, do not get distressed; prepare your case well, and lay out the groundwork necessary to win.

Sincerely,

Robert R. McGill, Esquire