Postal and Federal Disability Retirement: Time for Comparison and Double-checking

Upon an initial denial of a Federal Disability Retirement application, the Federal or Postal employee has a right to Request Reconsideration of the denied Federal Disability Retirement application within thirty (30) days of the date of denial (the rules allow for a later date — 30 days from the date of receipt — but it is always advisable to utilize the date of the letter, as that date can obviously be verified).

If the Federal or Postal employee is denied a second time, then there is a right to an appeal to the U.S. Merit Systems Protection Board.  Again, the timeframe within which one must file an appeal to the MSPB is identical to that which one has at the Reconsideration Stage of the process — 30 days, or the later one of receipt of date of the letter.

Often, when one reads through a denial from the U.S. Office of Personnel Management, there is a growing suspicion that OPM has either ignored, overlooked, or otherwise has never received for review, important and significant documentation, whether medical or otherwise, which should have been part of the file.

Once an appeal is filed with the U.S. Merit Systems Protection Board, the U.S. Office of Personnel Management is mandated to forward a complete copy of the file to the “Appellant” (the one who is filing the appeal) and to the attorney for the Appellant.  Once this file is received, it is important to “compare notes”, and to determine whether the “missing piece of information” is indeed missing, and may need to be re-submitted.

That is the time for comparing notes (“files”, in this case), and double-checking whether OPM has all of the information it should have.

Sincerely,

Robert R. McGill, Esquire

Medical Retirement for Federal Workers: Understanding a Differing Perspective

Sometimes, all that one can do is scratch one’s head.  That common statement — to “scratch one’s head” — is meant to convey puzzlement or disbelief over an action, statement, or occurrence which belies rational explanation.  As rationality has been the foundation of thoughtfulness and considered formulations of explainable actions, so logic and reason have been the joists which provide the bridging support for acceptable discourse.

In preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, one assumes that there will be a fair and reasoned review of each Federal Disability Retirement application.

If a Federal Disability Retirement application is approved, then of course the level of rational discourse need not be extensive — for, implicit in the approval itself is an acknowledgement that the legal nexus between the medical conditions described and the statutory criteria required to be met, have been adequately constructed.  But in a denial, one would expect a well-reasoned discourse of “why”, as opposed to a standard template of identifying various documents submitted, and multiple declarative statements (with barely a rational explanation) of, “You do not meet criteria No. X”.

Often, it is a waste of time to try and understand the perspective of OPM.  The Office of Personnel Management is an agency which is busy and overwhelmed with a volume of cases.  Time constraints often betray the proper application of the law.  It is well that the old saying did not refer to scratching one’s back; for, there are many places where one simply cannot reach in order to scratch, and that is the sense one is left with in reading some of OPM’s denials.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Medical Disability Retirement: Cornering OPM’s Malleable Stance

At the initial stage of the process identified as “Federal Disability Retirement” from the Office of Personnel Management, whether under FERS or CSRS, it is often difficult for the Federal or Postal worker to grasp the various components which must be gathered, formulated, prepared and consolidated, in order to meet the legal criteria for eligibility.

Once submitted, if an approval is received from the Office of Personnel Management, then one need not be further concerned with whether or not the legal criteria was “met” (although one should still be vigilant in doing those tasks and preparatory work in order to retain and maintain one’s right to Federal disability retirement benefits).

If a denial is received from the Office of Personnel Management, then it is necessary to file a Request for Reconsideration within the thirty (30) day time period, and begin to determine which of the multiple issues OPM has delineated as being the basis of a deficient Federal Disability Retirement application.

Some attempt to do this via a “shotgun” approach — of spraying every answer available and hoping that some of the arguments, supplemental documents, statements, etc., hit the mark in some way.  A different approach is to selectively choose those issues which appear to be central to the case, and answer the essential ones, allowing for such answers to concurrently address the peripheral points brought out by OPM.  A third approach is to identify and consolidate OPM’s alleged basis for the disapproval, consolidate the issues into 2 or 3 main points, then “corner” the arguments by addressing them, concluding that the Federal or Postal employee has addressed the concerns of OPM and therefore OPM should not be able to change them at the Merit Systems Protection Board.

While an MSPB appeal is conducted “de novo” (“anew” or “afresh”, without regard to any previous determinations), it is nevertheless an effective methodology to point out the malleability of OPM’s varying stances, and thereby effectively streamline that which needs to be proven at the MSPB level.  A leopard which changes its spots too often loses its credibility, and making sure that OPM stays in one place is a useful tool in winning a Federal Disability Retirement application, whether under FERS or CSRS.

Sincerely,

Robert R. McGill, Esquire

Federal Employee Medical Retirement: The Human Narrative

Ultimately, of course, a Federal Disability Retirement application under either FERS or CSRS is based upon a “human narrative” — delineating, describing and revealing (sorry — I could not think of an appropriate third word in this attempted alliteration which begins with the letter “d”) an individual’s story of one’s medical condition, the impact upon such condition upon one’s ability/inability to perform the essential elements of one’s job, and the further impact upon one’s routine of daily living (yes, we tend to forget that third part on SF 3112A, which asks about how one’s medical condition impacts other aspects of one’s life).  

Is it a story which “touches” someone at the Office of Personnel Management?  If one reads enough of the denial letters from the Office of Personnel Management (and only an attorney who handles such cases would have access to denial letters other than the one which is addressed to a particular applicant), one begins to realize that the Case Worker at the Office of Personnel Management is merely applying a set of legal criteria in a mechanical, almost assembly-line like manner.  

There is very little humanity involved in the review and determination by the Office of Personnel Management.  Now, one may argue that there could not be “another way” of making a determination — for, to show human emotion, compassion, sympathy or empathy would be contrary to the mandate of “the law”, and that is probably true.  One hopes, however, that the human narrative which is described in the Applicant’s Statement of Disability touches — in some way — such that it triggers a determination of approval based upon the law.  This, because if it is merely “the law” which is applied by OPM, then that implies that one must “know the law”; and knowledge of the law is rarely shown, and even more rarely applied, by the Office of Personnel Management.

Sincerely,

Robert R. McGill, Esquire

Federal Worker Disability Retirement: Crossing Lines

The question has been posed:  How can one Federal Agency make a determination of disability while another, separate Agency can deny a determination of disability? Contained within that question, of course, is an answer of disability from each Federal Agency, which was further preceded by multiple questions requesting the agency to make a determination of disability.

A simple answer to the question posed would be:  Each Agency is independent and separate, and thus has the authority to make an independent determination.  That is what is deemed a “power” answer.  But there are further nuances of an answer which go beyond the mere authority or power of an agency to make a determination.

In preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS, the question of another agency’s determination on disability is often asked:  How can one…?  The full answer to the question would require a complex analysis of the various laws, statutes and criteria, which would include the following:  Each Federal agency which provides a particular disability benefit is mandated by a specific statutory authority which sets out a specific set of criteria, and is different from the statutory authority defining another agency’s particular benefits; some legal criteria are based upon a determination of percentage ratings, while others are based upon employability or whether a particular kind of job can be performed.

Given all of this, one may still “cross the lines” by making arguments utilizing statements from one agency, as persuasive authority in arguing for another agency’s medical disability benefits.  In crossing such lines, however, it is important to maintain the integrity of the role, the criteria, the specific citation of the law, and what Judges actually have stated concerning the extent and authority of the influence which one agency determination may have another another.  Thus, if one attempts to cross the lines, do so with knowledge and understanding of the law.

Sincerely,

Robert R. McGill, Esquire

 

Disability Retirement for Federal Government Employees: OPM and the 7-Part Criteria

In any denial of a Federal Disability Retirement application under FERS or CSRS, the Office of Personnel Management incessantly refers to their 7-part criteria of eligibility, in making their determination as to the legal viability of a case.

The criteria, as stated, can be both helpful, as well as result in a negative determination, for multiple reasons.  To the extent that it extrapolates and extracts from the relevant Code of Federal Regulations, it minimally states the fundamental legal requirements for eligibility of a Federal employee or Postal employee who is filing for Federal Disability Retirement benefits.

However, because such a basis only extracts from the originating statutory foundation for eligibility, what it completely ignores is the continually evolving cases which clarify, interpret and define the very terms which constitute the criteria.  To that extent, OPM’s adherence to the strict and narrow application of the original “law” can often result in a negative determination, precisely because such an application ignores the subsequent clarifications which have evolved and progressed from various cases which have been litigated, both in the Federal Circuit Courts as well as at the Merit Systems Protection Board level.

Beware of the 7-part criteria; if followed, it can backfire; if not followed, it can backfire.  The 7-part criteria is a Catch-22 in sheep’s clothing.

Sincerely,

Robert R. McGill, Esquire

Medical Retirement from the Office of Personnel Management: Legal Criteria

There is “The Law” — the originating, statutory authority which is passed by Congress — then, the compendium of the entirety of the legal arena, which includes decisions handed down by Administrative and Federal Judges, which comprise the expanding and evolving interpretation, clarification and extension of “The Law”.  

Unfortunately, in making its decision on an Application for Federal Disability Retirement benefits under FERS or CSRS, the Office of Personnel Management constrains itself (and its knowledge of the law) to a template based upon a “7-part criteria” which is extrapolated from the Code of Federal Regulations.  

This 7-part criteria is a simplistic and misleading application of the law.  It is not so much that it is an “error” on the part of the Office of Personnel Management to apply such a criteria; rather, it is that, in evaluating and determining the sufficiency, viability, and meeting of the standard of proof of “preponderance of the evidence” of a Federal Disability Retirement application under FERS or CSRS, it simply does not go far enough.  Because the 7-part criteria fails to include the interpretive evolution of the entirety of the laws governing Federal Disability Retirement, it fails by excluding many Federal Disability Retirement applications which are based upon legal criteria which fall outside of the delimited circumference and parameters of what OPM has set forth. 

In short, they are “behind the times” in many instances, and so when a denial is based upon a misapplied criteria, it is important to point out to OPM that X law applies in particular case Y — where “X” is outside of the scope or knowledge of the Office of Personnel Management.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement for Federal and USPS Workers: The Process of Eligibility

The problem with possessing power is that it must be accompanied by truth, validity and rational foundations, if it is to be effective over the long term.  

In filing a Federal Disability Retirement application under FERS or CSRS, there is the process of proving one’s eligibility by meeting the burden of proof, termed as the “preponderance of the evidence“.  A disagreement can occur during the process, in that the Representative from the Office of Personnel Management can deny the Federal Disability Retirement application.  

Such a denial can occur twice at the OPM level — at the Initial Stage of the process, then at the Reconsideration Stage of the process.  OPM possesses the power to approve or deny each Federal Disability Retirement application.  Often, however, the denial itself fails to be accompanied by a rational discourse which strives to meet the high standards that a Federal Agency should always adhere to — guided by the truth and validity of any claims made in a denial letter.  Too often, the discourse which is the basis of the denial merely regurgitates a series of template-like statements, and then the OPM denies the claim.  

Fortunately, however, OPM is not the only Agency which makes the determination during the entirety of the process.  After the second denial, it then loses its jurisdiction over a case, and an appeal can be made to the Merit Systems Protection Board.  

The integrity of the entire process depends upon the independence of the MSPB in reviewing all such cases, and indeed, the Administrative Judges at the MSPB review each case carefully, with an open mind, and with the proper application of the law.  Each Judge must render a decision which contains the rational basis of a decision, based upon precedents and statutory legal underpinnings.  To have the full benefit of the process is indeed the basis of a system with integrity.

Sincerely,

Robert R. McGill, Esquire

Federal Worker Disability Retirement: Extrapolating Carefully from “The Law”

In preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS, it is important to recognize the major legal cases (those “landmark cases”) from which many other cases derive their foundational basis.  Such cases form the fundamental and overriding criteria of a legal arena, and this is no different in arguing for Federal Disability Retirement benefits under FERS or CSRS, either for Federal or Postal employees.  Furthermore, in citing a case to argue for one’s position of eligibility and entitlement, it is equally important to have read the cases carefully, and to argue the merits of an issue persuasively and accurately.  

One of the worst things that a lay, non-lawyer applicant can do is to mis-cite a case or a statute, and its meaning and ancillary conclusions.  For, when the Office of Personnel Management reviews a case and refutes a particular issue, and further points out that a legal precedent or statutory authority has been mis-applied, one’s credibility as to the substance of the application is not only undermined, but further, the viability of one’s legal argument has been subverted.  As such, it is normally advisable to leave the law to lawyers — and in Federal Disability Retirement cases under FERS or CSRS, to leave it to lawyers who specialize in the field. For, to do little or no harm to one’s self is certainly better than to saw off the branch which one has grasped onto, no matter how tenuous the position to begin with.

Sincerely,

Robert R. McGill, Esquire

Medical Retirement Benefits for US Government Employees: Office Notes

The Office of Personnel Management will often request that a doctor’s “office” or “treatment” notes be attached for approximately the last 1 – 2 years.  What is the purpose of this request?  Normally, to compare whether or not the doctor’s treatment notes reveal the consistency with what is stated in the narrative report prepared by the doctor.  This is often unfair, of course, because the purpose of office notes is quite different from the purpose behind a narrative report requested to support a Federal Disability Retirement application under FERS or CSRS.  

Office notes often reflect a cursory overview of the type of treatment rendered, and will sometimes contain statements of the positive advances and treatment responses of the patient/applicant, including any progress made in response to therapy, surgery, treatment, and medication regimens.  Thus, statements such as, “patient is showing good progress” or “Patient comes in today feeling much better” may be used by the Office of Personnel Management to deny a Federal Disability Retirement application under FERS or CSRS, and yet such statements must always be seen within the context of treatment, and in no way are inconsistent with a medical narrative report which clearly and unequivocally shows that a Federal or Postal employee is no longer able to perform one or more of the essential elements of one’s job.  Next:  How to overcome OPM’s unwarranted focus upon the Office/Treatment notes.

Sincerely,

Robert R. McGill, Esquire