Postal and Federal Disability Retirement: Expectation of a Rational Basis

Giving a “reason” is the basis of rationality.  In some sense, such a statement is merely a tautology, a redundancy in propositional logic (as pointed out by Wittgenstein), or what Kant had termed as an analytic a priori statement, where the subject (“reason”) is essentially identical to the object (“rationality”) in definitional terms.  But it is precisely the providing of a reason which forms the proper basis for proceeding in a rational manner.

Thus, if a X states that it will rain today, the follow-up query might be:  “Why do you believe that?”  If X answers, “Because I say so,” such a “reason” would not be an acceptable basis to act upon, precisely because it is neither a valid reason nor a basis of rationality.  Contrast that to the following:  “Because the national weather service, after an extensive study of the weather patterns for the past two weeks, has concluded that there is a 97% chance of rain today.”  Now, one may argue that predictions concerning the weather are notoriously unreliable to begin with; but nevertheless, the latter forms a basis for proceeding in a rational manner, while the former gives us no such foundation.

Similarly, in all sectors of one’s life, one has an expectation of giving and receiving “reasons” for which to act upon.  In a Federal Disability Retirement case, we are expected to provide reasons for why a Federal or Postal employee is “eligible” for Federal Disability Retirement benefits from the U.S. Office of Personnel Management.  Conversely, it is a “reasonable” expectation to receive a “reason” when a Federal Disability Retirement application is denied at any stage of the process.  Templates used by OPM will often only present the most superficial of reasons; and some reasonings as proposed by OPM may be self-contradictory.

In the end, whatever the reasons given, the Federal or Postal disability retirement applicant must respond with reasons why OPM is wrong, or provide a rational basis for a difference of opinions.  But that is another matter for a different blog altogether — the very issue of “opinions” and what should be the foundation of a valid one.  For, after all, we each of us possess them, and a scant few make much of a difference.

Sincerely,

Robert R. McGill, Esquire

Federal Disability Retirement: Surprise in the Universe of Reconsiderations

Until the science of Physics can implement the ability of molecular and particle transference technology (i.e., “Beam me up, Scotty”), there is little potential of resolving the Cartesian mind/body dualism (i.e., that French Philosopher Rene Descartes, who bifurcated the world between the material and the spiritual). But such dualism in philosophical terms does not mean that we can be at two places at one time; or even attempt to be “objective” when the subjective “I” is the very same person who is attempting to appear objective.

In Federal Disability Retirement law, when the U.S. Office of Personnel Management issues a denial letter, the customary response by the denied OPM applicant, whether a Postal Worker or a non-Postal Federal Worker, is that he or she is “surprised” by the initial denial because of the strength, completeness, and thoroughness of one’s Disability Retirement packet.  But that should be a given.

No one who files with OPM should do so without meeting the requisite foundations of thoroughness or completeness.  But this is where the problem is:  the very person who determines that a Federal Disability Retirement application is sufficient, is the same person who suffers from the very medical conditions of which the application speaks about.

The subjective/objective coalescence makes for a difficult mind/body dualism, in that the one who suffers from the medical condition can hardly assess and evaluate, in an objective manner, the strength of the Federal Disability Retirement application.

Thus, the Cartesian mind/body dualism lives on, and until Captain Kirk can guide us otherwise, such bifurcated dualism will continue to pervade all Federal Disability Retirement applications, whether under FERS or CSRS, and the denials which follow will still have the familiar response of, “Surprise!

Sincerely,

Robert R. McGill, Esquire

Postal and Federal Disability Retirement: Denials

Denials come with an unexpected force and impact; for, in every Federal Disability Retirement case, there is the expectation that the application itself merits close scrutiny and a belief that a proper review will persuade the OPM trier of facts that the Federal Disability Retirement application should be approved.

Indeed, from the perspective of the applicant, who is suffering from the medical condition itself on a daily basis, it is often a reaction of disbelief and anger when a denial is issued by the U.S. Office of Personnel Management.  But one must understand that this administrative process identified as “Federal Disability Retirement” is one which is not an “entitlement”, but rather, an adversarial process where proof, argumentation and persistent appellate procedures must be invoked at every step of the way.

That is why, in preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, one needs to always prepare a case as if it will ultimately go to the U.S. Merit Systems Protection Board.

Further, it is understandably disappointing to read an OPM denial and find that the OPM case worker does not even mention or refer to much of the substantive medical documentation submitted, but instead blindly (and generically) issues a template of tired old phrases, such as, “You did not meet the legal criteria“; “The evidence did not show that…”

With hundreds of cases assigned to each OPM Case Worker, one must understand that denials are rarely personal; but in responding to a denial from OPM, one must be diligent, forceful, and approach it with the use of all legal tools available.

Sincerely,

Robert R. McGill, Esquire

Federal Worker Disability Retirement: He Who Dictates the Law…

He who dictates the law, controls the conditions and criteria which govern a process.  Whether such dictation is an accurate reflection of the actual substance of the law, of course, is another matter.

Thus, when the Office of Personnel Management applies their 7-part criteria, they purportedly and in declarative form assert that it is based upon the substantive law which is extrapolated from the statutory authority which underlies Federal Disability Retirement laws, statutes, regulations, and expansive case-law as handed down from the U.S. Merit Systems Protection Board decisions and opinions rendered by the Federal Circuit Court of Appeals cases.

Merely asserting that a given set of legal criteria has been applied, does not constitute a verification of the proper interpretation of what the law means.  Proper interpretation requires legal analysis, an understanding of the context of how the law was applied, in what fact-scenarios the law was cited, and an argument as to whether it applies in one’s own set of factual circumstances.

Indeed, often the U.S. Office of Personnel Management will describe a linear state of a Federal or Postal employee’s set of medical reports, conditions, etc., then merely declare that the legal criteria was applied, then (without any explanatory nexus between the facts and the conclusion) make a decision stating that the medical conditions “did not satisfy the legal requirements” — without any bridging explanation as to why such a statement should be accepted as true.

Having the authority to dictate the law is one thing; such authority does not mean that one is right, or that such authority grants the agency any great insight into proper legal reasoning.  Fortunately, there are appellate procedures, such as the next step in the process — the Second Stage of the process (Reconsideration Stage), and beyond, to the U.S. Merit Systems Protection Board.

Sincerely,

Robert R. McGill, Esquire

Federal Disability Retirement: The Syndrome of, “I Can’t Understand It”

In all aspects of life, both professional and personal, it is easy to get stuck in a rut where one cannot walk away from a particular irritant.  

In preparing, formulating and filing for Federal Disability Retirement benefits under FERS or CSRS, one cannot afford to engage in the luxury of pausing for too long in attempting to understand the reasoning, rationale, or alleged justification for a denial of a Federal Disability Retirement application under FERS or CSRS, as issued by the Office of Personnel Management.  

It is easy to get caught up in attempting to “figure out” the foundational basis of an OPM denial.  One can get stuck in a self-pity mode of asserting to one’s self that everything had been carefully gathered; the medical documentation was impeccable and irrefutable; even the Agency supported the Federal Disability Retirement application by acknowledging and conceding the fact that (A) the Federal or Postal employee’s medical documentation was of a severity such that (B) it prevented him or her from performing one or more of the essential elements of one’s job.  

Yet, while listing each of the medical evidence and recognizing the extent of the symptomatologies, the prior surgeries, the medication regimens, etc. — despite all of that, the concluding sentence by the Office of Personnel Management states:  “We cannot determine by the evidence presented that you are disabled under the law,” or, “The medical evidence submitted is insufficient to meet the criteria for Federal Disability Retirement purposes.”  

What?  However, it is best to simply “move on”.  

It does little to no good to remain entrapped in the syndrome of, “I can’t understand it,” because that same syndrome inevitably leads to, “I am going to waste my time trying.”  Extract what can rationally be understood; present updated medical information; prepare the best and most compelling legal arguments, and prepare for the long haul of the legal administrative process.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Government Employees: Initial Application, Reconsideration & MSPB Appeals

Each Stage of the process in attempting to obtain a Federal Disability Retirement application under FERS or CSRS offers a distinct, yet similar, challenge.  Do not be fooled by responding to a “template” approach; while the Office of Personnel Management may respond in an indifferent, antiseptic manner, a Federal or Postal employee who must respond to OPM’s denial at each stage of the process must pinpoint what OPM is looking for, and respond appropriately.  Indeed, it is the distinction which one observes, which makes all of the difference in the case.  

Often, it is clear that OPM’s denial at the Initial Stage of the process, as well as a denial at the Reconsideration Stage of the process (which then compels an appeal to the Merit Systems Protection Board), is merely a regurgitation of thousands of previous denial letters, with some minor insertions which are meant to appear “as if” the denial letter has been tailored to a particular case.  

Thus, references to a particular physician’s letter, and even extrapolating a quotation from a doctor’s note or narrative (often something like, “Your doctor stated that you were recovering well from your surgery,” or “Your psychiatrist stated that the medications were working”) have the effect of personalizing a denial letter.  Yet, the remainder of the denial letter is in an antiseptic, template form, and it is clear that you are merely one of hundreds & thousands of responses written by OPM’s representative.  However, while OPM has the power to generate such template-driven denials, the individual Federal or Postal Worker must respond in an independent, individualistic manner.  It must be based upon one’s particular case, and thus the response must not be a “generic” one, but one based upon the uniqueness of the case.

Sincerely,

Robert R. McGill, Esquire

Federal Employee Medical Retirement: Sometimes, It’s “The Law”

An assumption is often made that the “Disability Specialist” at the Office of Personnel Management who reviews the Federal or Postal Disability Retirement application understands, comprehends, and applies the laws governing Federal Disability Retirement applications.  Now, such an assumption may be logical and reasonable, to the extent that one thinks (A) that those who aspire to working in a specific specialty have some knowledge or understanding of the specialty, and (B) if a decision is made which involves discussing “the law”, one presumes that the mere discussion of it proves some knowledge of it.  

The problem with such reasoning, however (apart from the popular tripartite acronym which originates from the word “********-u-me”), is that it betrays the facts:  often, from reviewing the denial letters generated from the Office of Personnel Management, it is painfully clear that the administrative specialist, the legal specialist, or whatever other “specialist” designation has been embraced by the worker at the Office of Personnel Management, simply fails to apply all of the applicable laws which govern Federal Disability Retirement applications.  This is understandable, to this extent:  OPM representatives (other than those representing OPM at the MSPB level) are not lawyers, and as such, do not keep up with the latest evolution of the laws governing Federal Disability Retirement issues.  Whether that is a good thing or a bad thing, is another matter altogether.

Sincerely,

Robert R. McGill, Esquire