Early Medical Retirement for Disabled Federal Workers: Harm of Linguistic Impurities

The integrity of the law is kept intact by the careful scrutiny of compliance, via oversight by guardians whose responsibility it is to maintain, challenge and question the diversionary attempt, however minor and in what seemingly inconsequential modalities, such imperceptible excursions into areas outside of the linguistic purity of the law, regulations and case-law interpretation when attempted.

In Federal Disability Retirement law, it is the Federal Agency itself — the U.S. Office of Personnel Management — which often must be kept “in check”.  For, it is precisely those “allowances” of language which provides for licenses not otherwise granted which, if left unchallenged, will continue to repetitively reappear in subsequent decisions rendered for future Federal Disability Retirement applicants.

Thus, in a Federal Disability Retirement denial, it may be that a decision of denial of a Federal Disability Retirement application may state that the medical evidence “does not show that your medical conditions kept you out of the workplace altogether”, or that the diagnostic testing did not establish that the Federal Disability Retirement applicant “had a disabling disease which caused a disablement which incapacitated” the individual — implying, thereby, a standard of medical disability far above and beyond what is necessary for eligibility for Federal Disability Retirement benefits.

Such misstatements must be challenged and refuted; otherwise, the integrity of the law is left soiled and smeared, and future attempts by Federal and Postal Workers may be harmed by the careless allowance of linguistic impurities to surface and fester.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Workers: The Legal Responses

There is of course the old adage that “good fences make good neighbors“.  It is meant to magnify the importance of demarcations, and how societal mores, rules, and accepted dictates of common etiquette provide for social boundaries without which the breakdown of common decency occurs.

Fences and boundaries not only contain; they provide markings which restrain others.  The white powder placed on a football field; the painted lines on a basketball court; the pitcher’s mound from which the pitcher must throw the ball; these are all accepted boundaries — symbols of containment as well as of restraining devices to the “others”.

In a Federal Disability Retirement application to the U.S. Office of Personnel Management, whether under FERS or CSRS, imagine what the outcome would be for the Federal or Postal Worker if all that existed were the originating statutes governing the criteria for a Federal Disability Retirement application.  Imagine a world in which OPM was the sole arbiter of its own statutes — of having the right to interpret the dictates of its own mandates.

Look at the recent case of Stephenson v. OPM, in which OPM interpreted the statutes of another agency (the Social Security Administration) and decided that an offset of SSDI benefits against a FERS Disability annuity could still be perpetrated even though no actual receipt of funds was received.

Laws are like fences and boundaries; they are to be used both as a shield, as well as a sword.  Use of legal arguments not only restrains a Federal Agency from acting and stepping out “too far”; they can also be used to attack and force a retreat.  But remember that, just as the fence-building should be left to the carpenter, so the sword should be used by a warrior.  In today’s parlance, don’t think that anyone and everyone can be a courtroom lawyer.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Manufactured Legal Criteria

Even assuming good faith, the application of a manufactured legal criteria can lead to a harm which can be irreversible.  The consequence of a Federal or Postal employee relying upon a mis-stated, non-existent legal criteria can potentially result in simply raising one’s hands in frustration, as a sign of futility, and giving up on the process of attempting to pursue a Federal Disability Retirement application under FERS or CSRS.  

David Hume’s philosophical argument concerning causality and the fact that, because there is no “necessary connection” between two objects which meet, which result in one object “causing” the movement or sequential effect of the second object, may be a technically ingenious analysis of an intellectual discourse.  In the “real world”, however, when two objects collide, there are causal consequences.  

Similarly, in a Federal Disability Retirement application under FERS or CSRS, when the Office of Personnel Management requires that one submit “objective evidence” to justify the medical doctor’s conclusions of disability, what the Office of Personnel Management is requiring is a “necessary connection” which does not exist in “the law”.  Years of clinical examinations; notations of progressive deterioration; limited flexion and mobility; consistent complaints of pain; the aggregate of such complaints in and of itself constitutes evidence — but of course OPM ignores such evidence as being merely “subjective“.  

Just as Hume’s requirement of a necessary connection violates the pragmatic standards applicable in the “real world”, so OPM’s requirement of “objective medical evidence” betrays the legal criteria in a Federal Disability Retirement application. Fighting the misapplication of a non-existent legal criteria is like denying a negative, however; it can be done, but you must use the law as a sword, and not merely as a shield.

Sincerely,

Robert R. McGill, Esquire

Federal and Postal Disability Retirement: The Importance of Knowing “the Law”

The old dictum that “ignorance of the law is not an excuse” for violating the law, applies just as well in a Federal Disability Retirement application — unless, of course, the entity which fails to recognize the substance of the law, its applicability, and its extended content and consequences happens to be the U.S. Office of Personnel Management.  

Let me expand somewhat.  

In order to qualify for Federal Disability Retirement benefits under either FERS or CSRS, one must prove by a preponderance of the evidence that one is entitled to the benefits.  Such proof of “preponderance of the evidence” must be in compliance with the applicable statutes, regulations, legal criteria, case-law (as handed down by the Merit Systems Protection Board decisions, as well as by the Federal Circuit Court of Appeals).  However, when the entity which constitutes itself as the intermediate arbiter of all Federal Disability Retirement applications (it is merely “intermediate”, as opposed to “final”, because there is the review process by the Merit Systems Protection Board and the Federal Circuit Court of Appeals) itself fails to apply the applicable law, there exists an inherent problem.  

OPM is designated to decide cases based upon the applicable law.  Yet, in its denials, it will often apply criteria which has absolutely no basis in “the law”.  

All the more reason why, in preparing, formulating and filing for Federal Disability Retirement benefits, it is important for the Federal or Postal worker seeking to obtain Federal Disability Retirement benefits, whether under FERS or CSRS, to know and understand the law — its substance, applicability, and consequential reverberations upon the multiple aspects of issues involved in a Federal Disability Retirement application.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Government Employees: OPM and the 7-Part Criteria

In any denial of a Federal Disability Retirement application under FERS or CSRS, the Office of Personnel Management incessantly refers to their 7-part criteria of eligibility, in making their determination as to the legal viability of a case.

The criteria, as stated, can be both helpful, as well as result in a negative determination, for multiple reasons.  To the extent that it extrapolates and extracts from the relevant Code of Federal Regulations, it minimally states the fundamental legal requirements for eligibility of a Federal or Postal employee who is filing for Federal Disability Retirement benefits.

However, because such a basis only extracts from the originating statutory foundation for eligibility, what it completely ignores is the continually evolving cases which clarify, interpret and define the very terms which constitute the criteria.  To that extent, OPM’s adherence to the strict and narrow application of the original “law” can often result in a negative determination, precisely because such an application ignores the subsequent clarifications which have evolved and progressed from various cases which have been litigated, both in the Federal Circuit Courts as well as at the Merit Systems Protection Board level.

Beware of the 7-part criteria; if followed, it can backfire; if not followed, it can backfire.  The 7-part criteria is a Catch-22 in sheep’s clothing.

Sincerely,

Robert R. McGill, Esquire

Medical Retirement from the Office of Personnel Management: Legal Criteria

There is “The Law” — the originating, statutory authority which is passed by Congress — then, the compendium of the entirety of the legal arena, which includes decisions handed down by Administrative and Federal Judges, which comprise the expanding and evolving interpretation, clarification and extension of “The Law”.  

Unfortunately, in making its decision on an Application for Federal Disability Retirement benefits under FERS or CSRS, the Office of Personnel Management constrains itself (and its knowledge of the law) to a template based upon a “7-part criteria” which is extrapolated from the Code of Federal Regulations.  

This 7-part criteria is a simplistic and misleading application of the law.  It is not so much that it is an “error” on the part of the Office of Personnel Management to apply such a criteria; rather, it is that, in evaluating and determining the sufficiency, viability, and meeting of the standard of proof of “preponderance of the evidence” of a Federal Disability Retirement application under FERS or CSRS, it simply does not go far enough.  Because the 7-part criteria fails to include the interpretive evolution of the entirety of the laws governing Federal Disability Retirement, it fails by excluding many Federal Disability Retirement applications which are based upon legal criteria which fall outside of the delimited circumference and parameters of what OPM has set forth. 

In short, they are “behind the times” in many instances, and so when a denial is based upon a misapplied criteria, it is important to point out to OPM that X law applies in particular case Y — where “X” is outside of the scope or knowledge of the Office of Personnel Management.

Sincerely,

Robert R. McGill, Esquire

Medical Retirement Benefits for Federal & Postal Employees: Beyond the MSPB

Because filing for Federal Disability Retirement benefits under FERS & CSRS is a process which may potentially take the full stages — from the initial application stage, to the Reconsideration Stage, to the Merit Systems Protection Board; then, if denied at the MSPB, to the Petition for Full Review, and if denied there, to the Federal Circuit Court of Appeals; as a result, it is a good idea to be represented by a Federal Disability Attorney.  Remember that the last two stages of the process only allow for arguing an error of law.  To that extent, if one pauses for a moment and reflects — everything ultimately comes down to an error of law.  Very rarely is there a misinterpretation of the facts. 

In a Federal Disability Retirement case, the medical evidence is fairly straightforward.  Yes, there can be some arguments concerning the interpretation of the extent and severity of the medical conditions, but the substantive focus of disagreement between the applicant and the Office of Personnel Management normally comes down to the appropriate application of the standard of law, and whether the application has met the burden of proof and satisfied the legal criteria for eligibility.  As such, the essence of a Federal Disability Retirement application comes down to whether OPM — and subsequently the Administrative Judge — has mis-applied the law.  Thus, at each stage of the process, it is important to lay the foundation by pointing out where the error of applying the law happened — at each and every stage of the process.

Sincerely, Robert R. McGill, Esquire