Disability Retirement for Federal Government Employees: Logical Fallacies

The problem with logical fallacies is that the people who make them rarely recognize such errancy (otherwise they wouldn’t repeatedly make them), and further, are often the same people who refuse to recognize them even if it is kindly pointed out.

For example:  In a Federal Disability Retirement case, when the doctor’s report clearly and unequivocally points out that the Federal employee’s medical condition is “permanent”, one would logically infer from such a statement that the condition therefore will last a minimum of 12 months (the legal requirement in a FERS or CSRS Federal Disability Retirement case), and therefore would satisfy the legal requirement concerning that particular issue.

However, the U.S. Office of Personnel Management will often fail to make such an inference, and claim that the legal requirement that one’s medical condition must “last a minimum of 12 months” has not been satisfied.

Now, one essentially has three (3) choices in responding to OPM’s claim at the Reconsideration Stage of the process (or, if made a second time with a denial at the Reconsideration Stage, then to the Administrative Judge at the MSPB):  (1)  Ignore the logical fallacy, (2) Argue that OPM has made the logical fallacy and failed to make the correct inference, or (3) Have the issue restated in any updated medical documentation.

Of the 3, the last is probably the preferable, if only because one should expect that any failure to recognize such an obvious inference will likely reoccur again within the same organization (the U.S. Office of Personnel Management), and therefore clarity of statement (or restatement) would be the most effective course of action.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Workers: The Second Denial

The Second Denial — a denial from the Office of Personnel Management of a Federal Disability Retirement application under FERS or CSRS — often fails to annotate or delineate an extensive basis for the denial, but simply reiterates that they believe the original decision was correct based upon a re-review of the application.  

It means nothing more than that another Claims Representative in a separate “branch” of the same Agency decided to support the original Claims Representative in denying the application.  No greater validity is obtained merely because two different people looked at the application, as well as any additional medical or other supporting documentation, and came to the same conclusion.  Two people can be wrong about the same issue, and indeed, OPM is normally wrong about issues concerning Federal Disability Retirement applications, precisely because many OPM Representatives (if not most) do not keep up with the Court opinions and evolving case laws rendered by the Merit Systems Protection Board and the Federal Circuit Court of Appeals cases.  Moreover, most Claims Representatives at OPM support their fellow Claims Representative.  

A disabled Federal employee or an injured Postal worker should not become discouraged merely because a Second Denial has been issued.  Being wrong twice does not translate into a right decision.  This is not mathematics, where two negatives result in a positive conclusion.  It is merely the next “step” in the process of obtaining a Federal Disability Retirement approval under either FERS or CSRS.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Medical Disability Retirement: Unequivocal Statements

Unequivocal statements can go either way:  They can either show the force of authority, or unravel a lack of knowledge.  In a Federal Disability Retirement case, where a Federal or Postal Worker is attempting to obtain Federal Disability Retirement benefits under FERS or CSRS, such statements of “unequivocal” authority can be seen at any stage of the process.  An unequivocal statement of disability can be made by a treating doctor.  An unequivocal statement of denial of a Federal Disability Retirement application can be made by an OPM Representative.  

What is the distinction and difference between the two?  For the former, the medical doctor who makes an unequivocal statement of disability is based upon the history, clinical examinations, experience, possible diagnostic testing, and other criteria applied in coming to a medical conclusion.  There accompanies it the force of the doctor’s credentials.  The latter is an opinion based upon (hopefully) a comparison of the documentation submitted by the Federal or Postal worker, and the “letter of the law”.  But that assumes that the OPM Representative understands and correctly applies the law.  Such an assumption is often erroneous, inasmuch as the OPM Representative is not a lawyer — and that is just the first of many reasons.  

Don’t be fooled by unequivocal statements; authority of such statements must have a force of rational basis and credentials, and not just because a person “says so”.

Sincerely,

Robert R. McGill, Esquire

Federal Disability Retirement: OPM’s Detailed Denial

Neither length nor detail constitutes legitimacy.  The spectrum of the types and styles of denial letters issued by the Office of Personnel Management in Federal Disability Retirement cases under FERS & CSRS range from a short paragraph under the “Discussion Section”, to 3 – 4 pages of apparent references to doctor’s notes, reports, etc. — with a lengthy lecture about the need for “objective” medical evidence, and about how a particular medical condition “may be” treated by X, Y or Z treatment modalities. 

Don’t be fooled.  One may think that, because OPM provides a seemingly “detailed” explanation of why a particular disability retirement application was denied, that such lengthy detail means that it is somehow “substantive”.  In fact, I often find the opposite to be true:  the shorter the denial, the greater the substance.  The lengthy denial letters contain “substance”, all right — but substance of the wrong kind.  They contain:  Mis-statements of the law; mis-statements of the criteria to be applied; inappropriate assertions of medical opinions (contrary to what one might think, the OPM representative does not normally have a medical degree, let alone a law degree), and a host of other “mis-statements”.  Sometimes, the weightier the denial, the more confusing as far as how to respond.  And, perhaps, that is one methodology as to how OPM wants to approach the case:  If it seems long and complicated, maybe the applicant will sigh, give up, and go away.  Don’t.

Sincerely,

Robert R. McGill, Esquire