Federal Disability Retirement Attorney: Qualia & First Person Attribution of Mental States

Private, subjective mental states are unique by self-definition; they become public knowledge only when shared with deliberate intent, revealing the inner thoughts, private conceptual pondering, and narrative voices of the subjective “I”. Pain is similar in form, in that one can mask and keep private the experiential factor of pain, just as one can remain hidden in the private thoughts one engages.

Qualia, in philosophy, has to do with the subjective experience of one’s encounter with the greater world; and the first person attribution of a mental state encompasses the “I” in the midst of that universe of contained subjectivity. The problem always is how one can and should relate the private experience when a public narrative of that subjectivity is required.

For Federal and Postal employees who must file for Federal Disability Retirement benefits through the U.S. Office of Personnel Management, the problem of conveying in persuasive form and argumentation, of transversing the chasm between the “qualia” of one’s subjective mental state into the foray of medicine, diagnostic testing, clinical encounters with medical professionals, and the entire compendium of what constitutes the “objective” world, is a necessary prerequisite where the incommensurable wall must be overcome.

An effective OPM Disability Retirement application under FERS, CSRS or CSRS Offset, is like watching a gymnast on a balance beam; overstating the subjective may result in loss of that balance.  Federal employees and Postal workers who suffer from those specific medical conditions which are considered “unverifiable” through normal channels of diagnostic methodologies — Fibromyalgia, chronic fatigue, chronic and intractable pain, etc. — must find ways where the public description goes beyond the qualia of private mental attributes.

In many ways, we have progressed culturally; and such progressivism is found in the diminishment and near-extinguishment of that dualism between the cognitive and the physical, and this is established by the general acceptance of psychiatric conditions as being just as “valid” as physical maladies. But old haunts and biased perspectives still abound, and during such times of transition, one must still take care in how one approaches subjectivity in the wake of the yearning for objectively verifiable evidentiary components.

Like the public who watches the graceful movements of a gymnast on a balance beam, it is the roar of the crowd in appreciation one seeks, and not the gasp of disappointment when lack of balance results in a sudden and unexpected fall.

Sincerely,

Robert R. McGill, Esquire

 

Federal Employee Medical Retirement: Cartesian Bifurcation

Modern philosophy is often considered to have begun with the French philosopher, Descartes; this is perhaps unfortunate, for the resulting inward navel gazing which was precipitated and the subsequent conceptual bifurcation between mind and body, for which we must contend with and pay the price, to this day.

For the longest time, of course, there was a suspicion that psychiatric conditions were somehow less viable and more difficult to prove; this is perhaps as a result of a misconception and misunderstanding of that proof which constitutes “objective” data as opposed to “subjective” interpretations of any factual analysis.

In Federal Disability Retirement cases, the U.S. Merit Systems Protection Board has steadfastly rejected any notions of subjective/objective differentiation, especially when it comes to psychiatric medical conditions.  Fortunately for the Federal and Postal Worker who suffers from medical conditions such that the medical disability prevents one from performing one or more of the essential elements of one’s positional duties, the MSPB has repeatedly rejected OPM’s claim that certain medical evidence (clinical examinations and encounters with a psychiatrist, for instance) is merely “subjective”, as opposed to what they deem to be considered “objective” medical evidence.

Whether anyone at the U.S. Office of Personnel Management is aware of Descartes and the French philosopher’s profound influence upon the mind/body bifurcation is a matter of factual irrelevance; the important historical point to be recognized is the trickling down impact from theoretical discourses in academia, to the pragmatic application of concepts in bureaucratic administrative functions.

Descartes lives, and the echoes of his philosophical influence resounds and reverberates down into the hallways of the U.S. Office of Personnel Management, in the daily reviews of Federal Disability Retirement applications.

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

Disability Retirement for Federal Workers: Pain and the Fallacy of Objectivity

Pain by definition is “subjective”, if by it one means that the experiential verification of the condition is uniquely possessed by the “I”, or the subject of the experience.  By contrast, that which is deemed “objective” is presumably validated by more than the possessor of the experiential condition — i.e., by third parties; by testing for the validity and verification of an event through means other than the personal narrative of a singular subject.  Yet, if verification of an experience is accepted merely by sheer volume of a collective consensus, then most scientific revolutions in advanced discoveries would never have survived.

In Federal Disability Retirement law, it is often the argument of the U.S. Office of Personnel Management that the Federal or Postal applicant has failed to provide “objective” medical evidence in presenting his or her case.  The narrative of having a condition of “chronic pain”, or “severe pain” — being “subjective” by definition — is not deemed “objective“, and therefore cannot be the valid basis alone for a Federal Disability Retirement case (or so the argument by OPM is often presented).  Even the results of an MRI will not necessarily satisfy the scrutiny of OPM; for, ultimately, an MRI can only reveal an observable abnormality — not that a person experiences “pain”.

Fortunately, there are a number of cases in law which rebut OPM in their attempt to bifurcate between “objective” and “subjective”, and such legal tools should always be cited and applied in any Federal or Postal Disability Retirement application.

While pain may indeed be subjective by definition, the objectivity of a Federal Disability Retirement application should never be based upon what OPM deems as sufficient; rather, it is the law and the long history of legal guidance by the courts which should mandate how OPM acts.  Indeed, if we let OPM’s subjective determinations rule the day, we would all be left in an existential state of pain — one which would then result in a collective consensus which may be deemed objective in nature.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Additional Supporting Evidence

In preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, there is nothing to preclude one from attaching multiple supporting documentation in proving one’s eligibility for Federal Disability Retirement benefits.

In doing so, however, it is appropriate to keep in mind that the conceptual paradigm of “supporting” should be just that — it must be to assist, help, or otherwise enhance such evidence which constitutes the central component of one’s Federal Disability Retirement application.

Thus, “supporting” should not be the primary basis of one’s evidence, but rather, that which further enlightens and advances the primary documentary evidence.  For example, statements from co-workers, photographs, and similar supporting evidence can be provided to OPM, but only if –and as — it enhances the primary documentation, which should be comprised of medical documentation from treating doctors, specialists, referral consultative medical providers, etc.  Even ancillary supporting documentation — SSDI approvals, VA assignation of disability ratings, OWCP acceptance, OWCP second-opinion doctor’s reports, etc — should be viewed as “supporting”.

It is important, as an aside, to recognize that the OPM Case Worker does not, and will not, expend hours upon hours reviewing every piece of document one submits, and therefore it is important to streamline and provide an efficient, effective presentation.

Think about it this way as a guiding principle:  If you approach a file which is an inch thick, or one which is 8 inches thick, which do you tackle on a Friday afternoon?

Sincerely,

Robert R. McGill, Esquire

Postal and Federal Disability Retirement: Never a Science

Ultimately, a Federal Disability Retirement application under FERS or CSRS is not a science, in terms of a mechanistic approach and methodology in determining the successful outcome of a case.  In law, there is always a distinction to be made between truth, evidence, and persuasive argumentation.  It used to be that the middle term (evidence) provided for the latter concept (persuasive argumentation) through the strength of the former term (truth).  

Science always relied heavily on the first two terms, believing that the strength of the first two determined the last term by logical default.  But once “science” began engaging in valuations and judgments based upon projected possibilities of future occurrences, the art of persuasive argumentation took on greater prominence in determining the truth, and the “evidence” to be presented became less important.  

Similarly, in preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS, because there is not a computational calculus in determining whether or not a particular Federal Disability Retirement application meets all of the legal eligibility criteria, it is not a “perfect science” and, indeed, it is not a science at all.  

A human being at the Office of Personnel Management must determine whether or not the applicant under FERS or CSRS is eligible for Federal Disability Retirement benefits.  As such, a fair amount of subjectivity comes into play.

The “art” of submitting a persuasive Federal Disability Retirement application — where the spectrum of objectivity is greater at the medical evidence side of things, and where human emotions and descriptive delineation of the impact of the medical condition upon one’s ability/inability to perform the essential elements of one’s job will be more apparent in the Applicant’s Statement of Disability — all combine to present a totality of evidence mired in subjective/objective compendium of the whole — for a presentation of the truth.

Sincerely,

Robert R. McGill, Esquire

Federal and Postal Disability Retirement: Sufficiency of Medical Evidence

In meeting the eligibility criteria for Federal Disability Retirement benefits under FERS or CSRS, one must obtain the proper medical documentation, meeting a “preponderance of the evidence” burden of proof, such that it is more likely than not that you are entitled to Federal Employee Disability Retirement benefits.  

Whether a medical report and supporting documentation satisfies the eligibility criteria is based upon the subjective interpretation of the evidence presented.  By “subjective” is meant the following:  The reviewing Claims Representative at the Office of Personnel Management, while allegedly applying a 7-part legal criteria in making a determination of eligibility for each FERS or CSRS Federal Disability Retirement application, must nevertheless make an interpretive determination based upon the sufficiency of the medical evidence, and taking into account all other evidence.  

Indeed, often the interpretation of the statutory meaning which governs all Federal Disability Retirement applications is misunderstood and misinterpreted by OPM.  That being the case, how can one expect that OPM will “get it right” when reviewing and interpreting complex medical documentation?  For example, OPM will often cite as necessary that the medical evidence was not “compelling” enough; or, that the medical evidence presented did not show that it warranted the applicant’s “total exclusion from the workplace” — despite the fact that neither of these standards are required by law.  

The sufficiency of the medical documentation is the linchpin of a Federal Disability Retirement application.  As such, it must be prepared by the treating doctor by pulling together a compendium of multiple factors.  While it need not be compelling, one thing is for certain:  quantity versus quality will not meet the sufficiency test, and it is always better to have one excellent medical report, than numerous mediocre ones.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement for Federal and USPS Workers: The Reluctant Doctor II

Dealing with the Reluctant Doctor — one who presumably has been treating the potential applicant for Federal Disability Retirement benefits for at least several months, but often for several years — is a rather “touchy” subject.  

On the one hand, the build-up of confidence, confidentiality, and security developed over many years of having a doctor-patient relationship is at stake; on the other hand, the Federal or Postal employee has come to a critical point in his or her future, career and professional life, where the support of the treating doctor in the preparation, formulation and filing of a Federal Disability Retirement application has become necessary.  

Doctors, by nature dislike the administrative aspects of preparing lengthy medical narrative reports.  Yet, most doctors recognize the necessity of that aspect of their practice, and are willing to perform the service as part of their duty to their patients.  A diplomatic, sensitive balance must be struck, but one that is honest and placed within the appropriate context of one’s health and future well-being.  

In essence, the doctor must be asked about his or her support in preparing a Federal Disability Retirement application under FERS or CSRS, but in the context of a larger discussion concerning one’s health, treatment modalities, permanency and chronicity of disabling medical conditions, and future treatment.  In essence, the “reluctant doctor” must be persuaded to disrobe his or her reluctance, for the sake of the patient’s health.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Medical Disability Retirement: The Fallacy of Objective Medical Evidence

The Federal Circuit Court of Appeals has already addressed the issue of the Office of Personnel Management’s unjustified adherence to making a distinction between “objective medical evidence” as opposed to what they deem and declare to be “subjective” evidence.

The distinction has no statutory basis or authority, but OPM continues to make the same, repetitive and tiring arguments concerning such a distinction.  Of course, when there exists a plenitude of “objective” evidence, then OPM will often sidestep such evidence and argue that it wasn’t “compelling” enough.  

The fallacy of “objective” versus “subjective” becomes most apparent, of course, when it addresses the issue of “pain”.  Pain is by definition a subjective state of experiential encounter.  If there is any “objective” evidence of pain, it is a misunderstanding of what constitutes such evidence.  Thus, for instance, one might point to an MRI showing a multi-level disc degeneration from L3-L4, L4-L5, etc., and state, “There, we have objective evidence of pain.”

Not quite.  What you merely have, if one stops and considers it, is simply a parallel set of observable facts:  A:  an image which reveals an abnormality of the spine, combined with B, which has an individual who conveys a sensation of pain.  However, inasmuch as there are many people who have similar or worse states of “A” (multi-level disc degeneration), but go through life without any apparent pain, one cannot therefore argue that A is “objective” evidence of “B”.  There may be a parallel correlation to be made, but no causal connection.  

Regardless, the Federal Circuit Court has already declared OPM to be in error for making such a distinction.  However, despite the law, OPM continues to deny Federal Disability Retirement applications under FERS & CSRS by adhering to the false distinction.  Imagine that.

Sincerely,

Robert R. McGill, Esquire