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

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

Postal and Federal Disability Retirement: Sparing the Legal Argument

In preparing, formulating, and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, there are multiple discretionary decisions to make.  By “discretionary decision“, is meant that there may be differing priorities of values which must be placed in the very process of deciding whether or not to include or exclude a medical document, legal argument, etc., and the prioritizing of the value placed upon such evidence is what will determine the decision itself.  There may ultimately be no “correct” decision on the matter, as opposed to an incorrect one.

Further, one may never know (or care, once an approval of a Federal Disability Retirement application is received) whether or not the Office of Personnel Management made a positive or adverse decision on the Federal Disability Retirement application (whichever the case may be at any given stage of the administrative process) based upon the same priority of values assessed upon the decision itself.

For example, sometimes the evidence itself — whether medical or non-medical documentary evidence — may be compelling enough in and of itself, that making a long and tedious legal argument may in fact detract from the prima facie strength of the evidence itself.  Or, it may be that a short sentence or annotation in a medical document may be so significant that a particular legal argument, however long and involved that may be, should be stated, and stated at length, and argued boldly.

Discretion dictates a restraining of a reactionary response; sometimes, the shorter the statement, the more effective is the presentation.  Length and verbosity alone do not constitute effectiveness in preparing, formulating and filing for Federal Disability Retirement benefits from OPM.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Workers: The Cogent Argument

In preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS and submitting it to the Office of Personnel Management, it is important to formulate a cogent argument for approval.  

There are different methodologies of persuasive argumentation — including logical argumentation; appeal to emotional elements; presenting a compendium of multi-faceted sub-arguments; overwhelming the listener with volumes of facts and issues, etc.

A cogent argument, however, involves persuasiveness by means of the logical structure, believability and inherent clarity and incisiveness of the argument itself.  It is the argument, in the context of a Federal Disability Retirement application under FERS or CSRS, which creates the necessary “nexus” between one’s medical conditions and the essential elements of one’s job.  For, whether one agrees with, or understands this (or not), in preparing a Federal Disability Retirement application under FERS or CSRS, and specifically when one writes the narrative presentation on the Applicant’s Statement of Disability (SF 3112A) , in describing one’s medical conditions and their impact upon one’s ability or inability to perform one or more of the essential elements of one’s job, you are arguing for persuasive effect.  

Cogency is the key to an effective argument.  Clarity of logical and sequential dependent clauses building upon an ultimate conclusion — or a conclusion which will systematically follow from the premises which are presented in a clear and concise manner — is important in making one’s “case” to the Office of Personnel Management.  

A cogent presentation is an effective one; lack of clarity only muddles the issues; and when a Federal or Postal employee is attempting to persuade, by means of a paper presentation, to a faceless bureaucracy, it is important to make the impact of cogency felt immediately.

Sincerely,

Robert R. McGill, Esquire

Federal Employee Medical Retirement: OPM and the Law

The Office of Personnel Management is the agency which determines all applications for Federal Disability Retirement, whether under FERS or CSRS (or CSRS-Offset).  In making such a determination, a standard of “objectivity” is expected by each and every Federal and Postal employee, in making such a determination.  

The Office of Personnel Management (OPM) applies a set of criteria as determined by statute and further expanded upon by the Merit Systems Protection Board and the Federal Circuit Court of Appeals.  The entirety of “the Law” which governs and guides the eligibility and entitlement to Federal Disability Retirement benefits is thus based upon a patchwork of legal holdings, statutory language, and cases and legal opinions which have “evolved” over the years.  From this patchwork of laws, one expects a “representative” from OPM to apply it fairly, objectively, and without any arbitrariness or capricious intent.  Yet, since the individuals applying “the Law” at OPM — at least at the first and second “Stages” of the process — are not themselves lawyers, how realistic is this?  

Ultimately, legal arguments in persuading OPM to approve a case are best made when they are concurrently explained — explained in their logic, their force of argumentation, and in their applicability to a given issue.  Simply declaring that “the Law” applies will not do; one must sensitively guide OPM to understand the very laws which govern their behavior.

Sincerely,

Robert R. McGill, Esquire

Federal Disability Retirement: Formulating an Effective SF 3112A

The “heart of it all” is…   The medical report will provide the substantive basis; a supervisor’s statement may or may not be helpful or useful at all; legal arguments will certainly place the viability of the application for Federal Disability Retirement into its proper context and arguments which touch upon the legal basis will inevitably have their weight, impact and effect upon whether one has met by a preponderance of the evidence the legal criteria required to be eligible and entitled.  All of that aside, the SF 3112A — the Applicant’s Statement of Disability — is where the heart of the matter resides in preparing, formulating, and filing a Federal Disability Retirement application under FERS or CSRS. 

If a Federal or Postal employee is unsure of what to state, how to state it, or how much to reveal and state, that becomes a problem.  For, ultimately, the proper balance must be stricken — between that which is relevant as opposed to superfluous; between that which is substantive as opposed to self-defeating; and between that which is informational, as opposed to compelling.  Formulation takes thought and reflection.  Yes, the SF 3112A — the Applicant’s Statement of Disability — is the heart of it all.

Sincerely,

Robert R. McGill, Esquire

Federal and Postal Disability Retirement: Objectivity & Legal Arguments

Having written about the importance of maintaining a level of objectivity in preparing, formulating and submitting a Federal Disability Retirement application under FERS or CSRS, and further, about the necessary component of a legal argument and references to prior legal citations, it is of note that the two intersect in significant ways.  Because the law, statutes, cases, etc., are intended to apply to everyone, it is meant to be a ‘universal principle’.  Whether one agrees with the law or not is beside the point, and ultimately irrelevant.  

Further, one must make a distinction between using the law as either a shield or a sword, and for a Federal or Postal employee who is considering citing the legal precedents in filing a Federal Disability Retirement application, it is important to utilize the law, case-law and statutes as a ‘sword’ in order to persuade the Office of Personnel Management to approve your case.  

The two together — of maintaining a level of objectivity in preparing a Federal Disability Retirement application by focusing upon the medical reports & records; citing case-law and legal precedents to argue one’s case in an affirmative manner — form a powerful and compelling basis in any Federal Disability Retirement application.  The intersection between the two — objectivity and legal arguments — direct the tone, tenor, and foundation of any Federal Disability Retirement application.

Sincerely,

Robert R. McGill, Esquire