Federal Disability Retirement Lawyer blog: Meeting the Legal Criteria

Lawyers often speak about “the law” as if it has the character of a science — of established principles which are objective, without the arbitrary influences of subjective interpretive devices or nuances. But even science itself fails any pure test of universal unalterability; one need only read Kuhn’s description of shifting paradigms in the history of science (The Structure of Scientific Revolutions) to understand that objectivity is merely another word for pragmatism. For, that which “works” or is “effective” in the eyes of the greatest number of people, is what matters to most people. That is why success is an irreplaceable harbinger of general opinion.

In the Federal government, one would like to expect application of rules, regulations, etc., somewhat in an algorithmic form, where favoritism is lacking, and where everyone has a “clean shot” at everything.

Especially when it comes to a benefit such as Federal Disability Retirement, which impacts those who are most unfortunate — one beset with a medical condition such that one can no longer perform all of the essential elements of one’s job — an expectation that an objective criteria which can be met by pure factual presentation, legal magnification of relevant statutes and laws, and perhaps some modicum of argumentation for persuasion, is what should occur in a perfect world. But as the proverbial perfect world fails to materialize, we must do with what we are given; subjective interpretation, and selective analysis are merely human frailties and imperfections.

That is why legal argumentation and countering of subjectivism must be employed.

Federal Disability Retirement, whether for FERS or CSRS employees of the Federal government, must be fought for, and “won”; there is no mathematical algorithm of objective application; there is no parallel universe of perfection; there is only the human condition, which requires interpretation, knowledge, analysis, and argumentation which persuades and cajoles.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Medical Disability Retirement: Bureaucracy and the Objective Algorithm

On the one hand, objectivity can be viewed as a positive thing; for, with it, one is assured that all applications are treated equally, by the implementation of identical criteria across the board.  “Gut feelings”, personal beliefs, and that “sixth sense” is eliminated; and thus is fairness achieved by the equal treatment of all cases, and “exceptional circumstances” are not, and cannot be, considered.

What such an approach gains in large-scale application, however, may lose out in individual cases.  For, if experience and age accounts for anything, it should allow for decisions made outside of the mainstream of thought, based upon those very factors which make up the difference — wisdom from years of engaging in a particular endeavor.

The problem with the bureaucratization of a process is precisely that it fails to allow for exceptions; but concomitantly, it is precisely those unique circumstances which cry out for a carved-out exception.  In a Federal Disability Retirement application, submitted to the U.S. Office of Personnel Management, whether under FERS or CSRS, there are always cases where all of the facts and circumstances reveal eligibility; but in applying the mathematical (and thoughtless) algorithm of criteria-based analysis, there may be something missing.  Perhaps the doctor would not, or could not, say exactly X; or the test results revealed nothing particularly significant.

In some ways, the medical conditions identified as Fibromyalgia or Chronic Fatigue Syndrome represent such scenarios.  In those instances, it is important to descriptively convey the human narrative in a particularly poignant manner.

The administrative bureaucracy is here to remain among us; to rise above the level of thoughtless application of a criteria, however, one must creatively encourage the phoenix to rise from the ashes of boredom, and span its wings to include those others who deserve the benefits of Federal Disability Retirement.

Sincerely,

Robert R. McGill, Esquire

Medical Retirement (for US Federal Employees): Administering Treatment versus Administrative Functions

Doctors rarely have any problems with administering treatment based upon clinical encounters and subjective narratives from their patients; yet, when it comes to providing a medical report and performing similar administrative functions, the sudden pause, hesitation, and sometimes outright refusal, is rather puzzling, if not disconcerting.

Such trepidation from the doctor can obviously result in a difficult wall for purposes of preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS.

For, much of medical evaluation, diagnosis, prognosis and prescribing of treatment encompasses receipt of subjective responses from the patient:  where the pain is present; the nature and extent of the pain; the history and chronicity of manifested symptoms; even functional capacity evaluations must necessarily be an observation of the subjective actions & reactions of the participant.  Of course, there are often distinguishable “objective” factors — swelling; carcinogenic versus benign tumors; broken bones, etc.

On the other hand, even MRIs and other diagnostic tools reveal only that X exists — not that X results in symptom Y.  An example would be a bulging disc — while the abnormality itself may show up on an MRI, whether the individual experiences any pain from the abnormality may differ from subject to subject.

This is why, despite the willingness of a doctor to treat based upon most factors being “subjective” in nature, it becomes a puzzle why the same doctor shows an unwillingness to write a report stating that, because of the medical conditions for which patient M is being treated, one must necessarily conclude that he or she cannot perform essential elements X, Y and Z of his or her job.

It is the jump from treatment-to-disability-determination which is often problematic for the treating doctor.  All of a sudden, the excuses flow:  “I am not trained to make such determinations”; “There is no objective basis for your pain” (then why have you been treating me for over a decade and prescribing high levels of narcotic pain medications?); “I can’t say whether you can or cannot do your job”; and many other excuses.

The switch from administering treatment, to treating administrative matters, is one fraught with potential obstacles.  How one approaches the treating doctor will often determine whether such obstacles can be overcome — and whether one’s Federal Disability Retirement application can be successfully formulated.

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: Manufactured Legal Criteria

Even assuming good faith, the application of a manufactured legal criteria can lead to a harm which can be irreversible.  The consequence of a Federal or Postal employee relying upon a mis-stated, non-existent legal criteria can potentially result in simply raising one’s hands in frustration, as a sign of futility, and giving up on the process of attempting to pursue a Federal Disability Retirement application under FERS or CSRS.  

David Hume’s philosophical argument concerning causality and the fact that, because there is no “necessary connection” between two objects which meet, which result in one object “causing” the movement or sequential effect of the second object, may be a technically ingenious analysis of an intellectual discourse.  In the “real world”, however, when two objects collide, there are causal consequences.  

Similarly, in a Federal Disability Retirement application under FERS or CSRS, when the Office of Personnel Management requires that one submit “objective evidence” to justify the medical doctor’s conclusions of disability, what the Office of Personnel Management is requiring is a “necessary connection” which does not exist in “the law”.  Years of clinical examinations; notations of progressive deterioration; limited flexion and mobility; consistent complaints of pain; the aggregate of such complaints in and of itself constitutes evidence — but of course OPM ignores such evidence as being merely “subjective“.  

Just as Hume’s requirement of a necessary connection violates the pragmatic standards applicable in the “real world”, so OPM’s requirement of “objective medical evidence” betrays the legal criteria in a Federal Disability Retirement application. Fighting the misapplication of a non-existent legal criteria is like denying a negative, however; it can be done, but you must use the law as a sword, and not merely as a shield.

Sincerely,

Robert R. McGill, Esquire

Federal Employee Medical Retirement: The Human Factor

In preparing, formulating and filing a Federal disability Retirement application under FERS or CSRS, the self-contradiction involved in the entire process is that the Federal Disability Retirement packet is being submitted as a “paper presentation” to people at the Office of Personnel Management, yet, concurrently, the preparation of the submission is done with the intent of eliminating the “human factor”, and instead to meet all of the critical elements and the legal burden of proof.  

The human factor necessarily involves human elements, and therefore the potential for errors.  There is no mathematical formula in preparing a Federal Disability Retirement application.  It is not an exact science, and one cannot predict the guarantee of a Federal Disability Retirement application as to its approval.  

Because of the human element involved, one can only attempt to formulate the packet by inoculating against the potential of human errors, and that means that one must understand and interpret all of the legal criteria which are necessary for a successful approach to the process.  The human factor is countered by more human factors — that is why there is a process of appeals — before administrative judges, and Judges at the U.S. Court of Appeals for the Federal Circuit.  The appellate process is a further attempt to review the possibility of human errors, and an attempt to correct such human errors.  

If there was a mathematical construct which could precisely determine the eligibility of each Federal Disability Retirement submission, and there was unanimous agreement that the computer model was fair and without error, perhaps such a computer program will one day make the determination of an approval or denial of a Federal Disability Retirement application.  That is doubtful, however, because we are dealing with human beings, human medical conditions, and human suffering.  As such, the human factor can never be entirely eliminated, and nor should it.

Sincerely,

Robert R. McGill, Esquire