Medical Retirement for Federal Workers: The Changed Standard

Lawyers are trained to engage in linguistic gymnastics; that is precisely why Plato railed against rhetoricians of his day, as they used language to distort the fullness of being (as Heidegger would say).  For, the malleability of language allows for a spectrum of purposive and mischievous play upon words; only an abiding sense of integrity in the face of a world which has abandoned parameters and boundaries of what constitutes “fair play” in the arena of linguistic word games, would save the original foundation of the correspondence theory of truth.

In this postmodern world where objective truth can no longer be argued for, subtlety in playing a language game is no longer necessary; one can simply, deliberately and without conscience switch one word for another, and maintain a straight face.

So, in a Federal or Postal Disability Retirement case, when the U.S. Office of Personnel Management inserts words which clearly do not reflect the legal standard as presently existing, what does one do?  When the standard is raised to require “disability which precludes you from the workplace”, or evidence of a medical condition which is “compelling”, how does one respond?

Such unwarranted and baseless legal applications are inserted in many denials from the U.S. Office of Personnel Management, requiring a Request for Reconsideration or an appeal to the Merit Systems Protection Board.  In the end, in order to properly respond, one must first recognize the malleability of language; then to identify the proper legal standard to be applied; then to selectively address such improper legal standards.

In a Federal Disability Retirement case, whether under FERS or CSRS, the ultimate problem is that one is dealing with a Leviathan of an agency — the U.S. Office of Personnel Management — and one which has the power to engage in rhetorical flourishes with unfettered abandon.

Sincerely,

Robert R. McGill, Esquire

Early Medical Retirement for Disabled Federal Workers: The Bad Question

As children, we were encouraged to “ask questions“, and often with such niceties as, “Now, remember, there is no such thing as a ‘dumb question'” (despite all of us, even in tender years, knowing the untruth of such an assertion as we witnessed the facial expressions of horrified teachers, parents and neighbors — and of course, the smug, sidelong glances of those older siblings).

But the problem with taking such childhood experiences long into adulthood, is that it ignores the obvious:  the character and essence of a question determines the outcome of the answer.  Sometimes, a bad question leads to a bad answer.  In such an event, one must consider reformulating the question, or ignoring it altogether.

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 and Postal employee encounters multiple ‘bad questions’ — first in the form of the Standard government forms (SF 3107, with Schedules A, B & C for the FERS employee; SF 2801, with Schedules A, B & C for the CSRS employee; and SF 3112 series for both FERS and CSRS employees) and the questions posed in such forms — especially on SF 3112A (Applicant’s Statement of Disability); then, in a denial at the Reconsideration Stage of the process (for, in such a denial are contained inherent questions of what allegedly one ‘must’ do in order to meet the standards of OPM); then, finally, the questions which must be answered in order to satisfy an Administrative Judge at the MSPB.

But questions are funny vehicles of communication; often, it reflects more upon the questioner rather than upon the one who answers, and in the case of an OPM Case Worker, and of certain particular persons, this is all the more so.  Lest we forget another adage we learned in grade school (more on the playground among bullies, tough guys and the ‘cool’ set):  Don’t ask a question you don’t already know the answer to.

Sincerely,

Robert R. McGill, Esquire

Medical Retirement Benefits for US Government Employees: The Legal Standards

Recent decisions issued by the Full Board of the U.S. Merit Systems Protection Board — specifically, Henderson v. OPM, decided on January 31, 2012, reestablishes the two general standards of applicable evidentiary approaches in proving a Federal Disability Retirement case, whether under FERS or CSRS.  Whether or not the U.S. Office of Personnel Management will “comply” with the applicable standards as set forth by the MSPB is another question.

Often, the “trickle-down” effect of a legal opinion can take years to accomplish — and by that time, further refinements by the courts and by the MSPB may have made such legal opinions moot, irrelevant or otherwise restrictive in its practical application, anyway.  For the time being, however, the two legal approaches can be generally stated thus:  One must prove, by a preponderance of the evidence in all Federal Disability Retirement cases, either (A)  That certain specific medical conditions prevent one from performing certain specific essential elements of one’s job (somewhat like a 1 – 1 correspondence, or more generally, a medical opinion showing that medical condition X prevents job duties Y because of Z) or (B) as stated previously in Bruner and multiple other cases, there is an “inconsistency” between one’s medical condition (or multiplicity of medical conditions) and the type of positional duties one must engage in to perform the essential elements of one’s Federal or Postal job.

The former criteria to satisfy may be deemed “particularized”; the latter may be seen as a more “generalized” approach.  While there is certainly a conceptual distinction between the two, in pragmatic terms, such a distinction may be without too much difference, if only because doctors will often go back and forth between the two approaches, anyway, in writing a medical narrative report.

The conceptual distinction is not as apparent as one between “explicit” and “implicit”, but certainly the former approach encapsulates a greater specificity of detailing a connection between X and Y, whereas the latter requires the reader or reviewer (i.e., OPM or the Administrative Judge) to think through and analyze the entirety of the issue.  But that life would not be so complicated.

Sincerely,

Robert R. McGill, Esquire

Federal and Postal Disability Retirement: Applying the Legal Standard

In preparing, formulating and filing a Federal Disability Retirement application with the Office of Personnel Management, it is important to understand the legal criteria of “preponderance of the evidence”, to attempt to meet the legal criteria; to state and argue that the legal criteria has been met, and to reiterate and show how the legal criteria has been met.

Thus, as the Office of Personnel Management is a bureaucracy with multiple levels replete with clerical and administrative staff, it is important to present, to show, to reiterate, and to affirm:  the point to get across must be established in a succinct, effective, efficient manner, but it must be firmly established.

“Preponderance of the evidence” can be quite subjective, but within the context of such subjectivity, it encompasses the conceptual analogies of:  X is more likely than not; the quantitative weight of the evidence shows that the burden of proof has been met; the qualitative whole has proven that one is entitled to Federal Disability Retirement benefits; the compendium of evidence, both medical and supporting, shows that Mr. Y’s medical condition does indeed prevent him from performing one or more of the essential elements of his job; and similar conclusions to be reached as a result of the entirety of the evidence presented.

Of these analogies noted (which is not meant to be an exhaustive list, but merely an attempt to illustrate the meaning of the concept of “preponderance of the evidence”), the one which is most dangerous for people to embrace, is the “quantitative weight” of evidence.  For, ultimately, gathering a thick stack of medical documentation is the easiest way to put together a Federal Disability Retirement application, but the least effective.  And in the end, it is effectiveness which we seek, and not ease of completion.

Sincerely,

Robert R. McGill, Attorney

OPM Disability Retirement: Discretionary Judgments

There are many things in the long process of getting a FERS Disability Retirement application approved, which are purely “discretionary”, based upon one’s experience, sense of a case, an ear to listening to a client, and based upon a compendium of factors, facts and circumstances, to come up with the “best” decision on a particular issue.  A person who tries to go through the process alone, without the ear, mind, experience or judgment of an attorney who knows the process governing Federal Disability Retirement under FERS, has to make such discretionary decisions without the benefit of past experiences. 

Such decisions can range from small issues of:  how and when a treating doctor should be approached in the request for a medical narrative; how much guidance the doctor would need or want in preparing a medical narrative report; when and how to inform the agency of the pending decision to file for Federal Disability Retirement benefits, etc.; to the larger decisions, such as which medical conditions and reports to include in the final packet to be submitted to the Office of Personnel Management; and many other such discretionary decisions.  Yet, when grouped together, the complex interactions of the multiple “discretionary judgments” can often make or break a case.

Sincerely,

Robert R. McGill, Esquire