Federal Disability Retirement: In Life, the Pragmatic Trumps the Theoretical

In administrative and other processes, as in life generally, there are issues which on a theoretical level would seem to work; but when tested in the “real world”, somehow the perfect paradigm suddenly disintegrates.  Thus, one may ascribe a series of seemingly logical propositions, each in their independent and isolated delineations apparently stand strong and without a flaw; but somehow, in their linear progression of dependence, one upon the previous one, the linkage itself may be the determining factor.

Thus the old adage:  An X is only as strong as the weakest link.

In preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, the Federal or Postal employee may lay out a plan of attack which, on its face, may appear sound and credible; but as experience in anything constitutes the crux of everything, so the first-time experience of thinking that one’s own case is a “slam-dunk” case because the “pain I feel” is so excruciating that there is no way that OPM could do otherwise than to approve my case, may be that weakest link.

Think again.  OPM deals with thousands of such cases; your particular case, as the unique case singularly known by you, is essentially a mere theoretical example of countless other such cases.  The pragmatic reality of the Federal bureaucracy is what one must ultimately face; again, as in life in general, the practical aspects of an engagement rules the day.

Sincerely,

Robert R. McGill, Esquire

Federal Worker Disability Retirement: Societal Complexities

For over 50 years, we have been told that our lives will be simpler, more efficient, of greater ease, resulting from the technological advancement of society at large.

With each technological innovation, some aspect of the common man’s life was supposed to be unburdened, with greater leisure time and less stress.  But a fundamental principle of human nature was ignored throughout the incremental advancement towards such sophistication:  the innate hunger to create ever more, and the desire by those at the pinnacle of civilization to play the role of master of the universe.

In legal circles, we were all doomed once the fax machine was invented; for, with such a contraption, the 3-4 days it took to send out a first class letter confirming a conversation or following up on one, became instantaneous, and the war of the who-said-what and what was settled upon became an urgent necessity with the ability to send and receive immediately.

Contrary to the great promise of our times, technology and modernization has further complicated, stressed and compounded the problems of daily living.

For the Federal or Postal employee who is contemplating filing for Federal Disability Retirement benefits, whether under FERS or CSRS, the added complexity of winding one’s way through a maze of bureaucracy, of compiling an effective legal case for one’s Federal Disability Retirement application, is often “too much” because such an effort is in addition to the burden of dealing with one’s debilitating medical condition.

The key is to always streamline and simplify; but of course, that’s precisely what society has been purportedly doing all of these years, with each new gadget declaring the end of stress; and we are all the more stimulated by it.

Sincerely,

Robert R. McGill, Esquire

Federal Worker Disability Retirement: The Apparent Independence of Each Stage

In some ways, the fact that each “stage” of the process of Federal Disability Retirement is independent from each other, is a “given”.   When a Federal Disability Retirement application is denied at the Initial Stage of the process, then again at the Reconsideration Stage of the process, it is considered a positive part of the administrative process that the Merit Systems Protection Board will evaluate and decide the case “de novo”, or “anew” or “afresh”, without regard to what the Office of Personnel Management stated, decided, affirmed or concluded.

To that extent — to have an independent eye and an evaluation unbiased by prior analysis — is a good thing.  However, when one reads the decision of the Office of Personnel Management at the Initial denial of the application, then again at the Reconsideration denial of the application, it is somewhat disconcerting that neither OPM Representatives relied upon the analysis of the other.  What this allows for, of course, is an independent review by both the Initial Stage of the application and the Reconsideration Stage of the application, and while such independence of review can be seen in a positive light (again, that one OPM Representative is not influenced or biased by the views of the other), more often than not, what happens is that the Reconsideration Stage OPM Representative merely comes up with new and previously unfounded arguments upon which to deny the application a second time.

In short, it is difficult to stabilize the arguments upon which OPM relies, in order to answer and refute them.  That is why the MSPB’s approach of viewing a case de novo is important.  For, by ignoring the malleability of OPM’s reviewing process, one may get an objective and truly independent analysis and evaluation of the case.  Independence is an important component of “fairness”; objectivity is an integral element; and integrity is the filament which holds the law together.

Sincerely,

Robert R. McGill, Esquire

Federal and Postal Disability Retirement: The Long Road

The bureaucratic process identified as “Federal Disability Retirement” with the Office of Personnel Management is indeed a long, and often frustrating, endeavor to undertake.  

From the long wait at the initial stages of preparation and formulation; to the waiting wasteland once it gets to the Office of Personnel Management — including first the period of waiting merely to have it assigned to a case worker, then the long period of uncertainty while it has been assigned but pending an actual review by the OPM Caseworker; then, of course, if it is approved, the lengthy period of receiving interim (partial) pay before it gets “finalized” and calculated — this, all on the assumption that the Office of Personnel Management will perform the monetary calculations of backpay, interim pay and final pay in a correct, indisputable manner; and further, if it gets denied at the First Stage of the process, then the further period of waiting at the Reconsideration Stage of the process; and further, if it gets denied at the Reconsideration Stage of the process, then an appeal to the Merit Systems Protection Board.  

A recent case — indeed, just decided a couple of days ago — where the client went through the First Stage, the Reconsideration Stage, then a Hearing at the Merit Systems Protection Board, all without an attorney, and came to the undersigned attorney to file a Petition for Full Review at the Merit Systems Protection Board where, fortunately, there were enough legal mis-steps on the part of the Administrative Judge that the collective “we” were able to get it reversed and obtain an approval for Federal Disability Retirement benefits from the Office of Personnel Management — all told, took about 2 and a half years from the start of the process to the final decision.  By any standard, that is a very, very long time.  

Caution:  It is not recommended that an individual wait until after an MSPB decision to obtain the services of an attorney.  The wait for a Full Review by the MSPB 3-member Board alone took about 10 months, and moreover, it is very difficult to reverse the decision of a Merit Systems Protection Board’s decision.  It can be done (and has been done), but it is obviously a better idea to win at the MSPB Hearing level, and not try and reverse an AJ’s decision based upon an “error of law“.

Sincerely,

Robert R. McGill, Esquire

Postal and Federal Disability Retirement: Letting Go

In preparing, formulating and filing a Federal Disability Retirement under FERS or CSRS, it is often normal to have concurrent “cases” filed — an appeal to the Merit Systems Protection Board in response to an adverse action or termination by the Agency; an EEOC case proceeding against the Agency; and other judicial and quasi-judicial forums.

At some critical point, however, there comes a time when a decision must be made — a bifurcation, an “either/or”:  Either one wants to continue litigating to get one’s job back, or the preparation of the Federal Disability Retirement application under FERS or CSRS, as an admission that one is no longer able to perform one or more of the essential elements of one’s job, must proceed.  But not both.  

For the most part, concurrent judicial proceedings can continue without a conflict between the two.  Lawyers can talk out of both sides of the mouth, and beyond — sometimes out of three or four sides of the mouth.  It is well that an attorney’s mouth is circular and not triangular, thereby failing to restrict and contain how many sides there are.  

Given that, however, there often comes a time when a Federal or Postal employee cannot credibly state that the Agency had no right to terminate one’s employment, yet claim with the Office of Personnel Management that one can no longer perform one or more of the essential elements of one’s job.  

Indeed, as a practical matter, it is often a good negotiating point — of persuading the agency that the Federal or Postal employee will be willing to drop the adversarial proceedings in return for the Agency restating the basis of the removal, based upon one’s medical inability to perform the essential elements of one’s job.  Furthermore, it is often a pragmatic “health reason” — to let go of the adversarial proceedings, and allow for a Federal Disability Retirement application to get approved, so that one may begin the process of recuperating one’s health.  Just some thoughts.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Workers: The Anxiety of Procrastination

In preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS, there are numerous issues, points, time-frames,etc., during the administrative process, when a Federal or Postal employee’s anxieties may become exacerbated — both because of the inherent complications resulting from the process itself, as well as because of what others do.  Many of the complexities which arise are beyond the control of one’s capabilities.  Thus, if one is accustomed to having some “control” over events and circumstances, it can quickly become a process full of anxieties, exasperation and frustration.  

Time is often beyond one’s control — the time the Agency takes to fill out their portion; the time a doctor responds to a request for a medical narrative; and, finally, the time that the Office of Personnel Management takes in reviewing and rendering a decision on a Federal Disability Retirement application.  

One point of frustration which often builds without ceasing, however, is within the control and capacity of all Federal Disability Retirement applicants — procrastination.  Procrastination merely delays the inevitable, and compounds the complexities because it merely allows for outside difficulties and problems to continue to build, without resolution.  If the need arises to begin filing for Federal Disability Retirement benefits under FERS or CSRS, procrastination should not be part of the game plan.  This is especially true because the Office of Personnel Management is a bureaucracy which takes a long time itself, and procrastinating at the front-end of the process will only delay things further at the back-end.

Sincerely,

Robert R. McGill, Esquire