Postal and Federal Disability Retirement: The Volume-based Application

A declaration of the sheer volume of medical evidence submitted is often an indicator of the basis for which a Federal Disability Retirement application was formulated; for, in the end, if reliance of the successful outcome of a Federal Disability Retirement application is expected based upon the longevity and extent of a medical condition, the chances of an initial approval may be somewhat compromised to begin with.

Volume can never replace content; and from the perspective of the U.S. Office of Personnel Management, there is often an underlying suspicion that receipt of a thousand pages of medical documentation indicates merely that volume of treatment is being substituted for the substantive content of meeting the required legal standards.

Much of medical notation and treatment records merely reflect a particular appointment’s mechanical applications — continuation of previous treatment plan; refill of prescriptions; standard positive or negative responses to particular questions; prospective treatment modalities; and, as supportive evidence attached to a substantive medical report, they can reinforce the satisfaction of the legal criteria of establishing the necessary nexus between one’s medical condition and the inability to perform the essential elements of one’s job.  But left as a replacement for the doctor’s explicit statement confirming such a nexus, it remains a hollow voice within an expansive but empty chamber.

One should never mistake the legal distinction between “primary” evidence and “supportive” evidence.  The former is meant to establish the nexus between one’s medical condition and the essential elements of one’s job; the latter is submitted to reinforce the former.  When one utilizes the former as the substitute for the latter, it is like the self-delusion that just because you are the best player on a pick-up team in your neighborhood, you are ready to enter into the world of professional sports.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Government Employees: Extensive Evidence

When first encountering the vastness of the sea, the young child pointed to it and said to his father with a breathless sense of wonderment and awe.  “It’s like a big swimming pool,” the child said.  “It won’t taste like one, though.  And do you see the waves?”  The boy stood in silence.

The mystery of the world, its infinite puzzlement, in contrast to man’s vain attempt to artificially recreate a semblance of its beauty, revealed itself to the child’s uncorrupted eyes.  Only a child whose first encounter with creation could see the true nature of being; the rest of us, compromised by age, cynicism and self-indulgence, would forever be blind to its breathless scope of beauty.

Such a slice of life story is meant to illustrate the distinction between substantive extensiveness, and a smaller version thereof, in preparing, formulating and filing for Federal Disability Retirement benefits under FERS or CSRS, from the U.S. Office of Personnel Management.  Volume of evidence (i.e., likened to “the ocean”) can be persuasive; yet, if it is merely an elaborate pool, then lack of substance may undermine its own efficacy.  On the other hand, a short but “to-the-point” medical report may be very effective, precisely because it is exactly what it was meant to be:  without much fluff, the doctor is unequivocal in his or her medical opinion.

The point throughout is that there is never a science in the compilation of proof in formulating an effective Federal Disability Retirement application.  Or, to put it another way:  don’t try to recreate something which cannot be copied; sometimes, the evidence is what it is, and how one presents the evidence will make all the difference.

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

Federal Worker Disability Retirement: Criteria & Proof

In preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS, a two-step process (at a minimum) must be engaged in when compiling the foundational presentation of a Federal Disability Retirement application.  

First, a thorough reading, comprehension and understanding of the “what” in reviewing the criteria applicable for eligibility and entitlement to a Federal Disability Retirement application:  What does it say?  What is required?  What type of evidence meets the requirements?  And sometimes just as importantly:  What has previously failed to meet the requirements?  

Thereafter, once the conceptual framework of grasping and understanding the “what” of the process, and proceeding to gather the information requested in preparing and formulating one’s Federal Disability Retirement application under FERS or CSRS, then the pre-filing conceptual stage of the second-order should be engaged in:  “Whether”.  

Whether what is gathered is sufficient to meet the legal criteria necessary to be eligible and entitled to Federal Disability Retirement benefits under FERS or CSRS; whether it is either (or both) qualitatively and quantitatively sufficient to meet the legal criteria for eligibility.  The “whether” question is a much more universal one, in that it must encompass the full panoply and compendium of the evidence gathered.  Not that it cannot be supplemented at a later date (it can), although there are restrictions and limitations imposed by what is delineated on one’s Applicant’s Statement of Disability (SF 3112A).

Understanding the conceptual distinction between the “what” and the “whether” is an important mental exercise to undertake, if only on a superficial level of making one pause for a moment to consider whether the extensive effort one must endure will be worthwhile.  

It is better to take the necessary and sufficient time at the outset, than to find out after much effort has been expended, that both the “what” and the “whether” have been insufficient to meet the basic legal criteria for eligibility for Federal Disability Retirement benefits under FERS or CSRS from the Office of Personnel Management.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Government Employees: Being Persuasive

In preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS from the Office of Personnel Management, there are certain “advantages” which a Federal or Postal employee/applicant may already possess from the outset, without having filed a single piece of paper with the Office of Personnel Management.  

These advantages may include:  an agency action removing the Federal or Postal employee from Federal Service based upon one’s medical inability to perform one or more of the essential elements of one’s job; an Air Traffic Controller receiving a disqualification by the Flight Surgeon; an OWCP-accepted claim where a Second Opinion doctor writes a comprehensive report and answers definitively that the Federal or Postal employee has a permanent medical condition which will prevent him or her from ever returning to his or her former job; a Supervisor’s Statement which clearly delineates and describes the extent of the Federal or Postal employee’s medical condition based upon observation and agency-impact; and multiple other “advantages”.  However, an advantage fails to become so, and remains only in a state of potentiality, unless it is actualized by being utilized effectively.  By “effective utilization” is meant that, just as one can be persuasive only by persuading, so one can effectively utilize an inherent advantage in a Federal Disability Retirement application only by persuasively arguing that the particular agency action has a legal basis in which the action itself is legally persuasive.  

In other words, the proper legal citations which have been mandated previously by a Judge in another case, must be cited and referred to, in order to use it as an argumentation basis to the Office of Personnel Management.  One cannot persuade unless one engages in persuasive conduct — and that means that one must not go out blindly into the field and use a scythe as a hammer, but be able to recognize the tool for what it is, then to use it accordingly.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Differing Perspectives

The old adage, “Walk in your fellow man’s shoes for a mile” is a saying which is meant essentially to teach a child (and many adults) to have a different perspective than one’s own, self-centered universe.  In practicing law, it is a good idea to attempt to obtain a perspective from the multitude of differing “shoes” — and this is especially important in putting together a Federal Disability Retirement application under FERS or CSRS. 

The gathering of such differing and different perspectives — that of the treating doctor; that of the applicant; that of the Agency (the Supervisor and the Agency in its determination that accommodation or reassignment is not available or appropriate for a given employee, given the particular medical conditions and the type of positional duties of the specific job which the Applicant must perform, as well as taking into account what constitutes “efficiency” in the Federal Service, etc.); and further, that of the Office of Personnel Management. 

It is the job of the Attorney representing a Federal or Postal employee in preparing a Federal Disability Retirement packet under FERS or CSRS, to pull together the various perspectives; write up and prepare, and gather the information from the multiple and differing perspectives; to neutralize those perspectives which may impact negatively upon the Federal disability retirement application; then to present the fullness of the different perspectives such that it meets the legal criteria and “perspective” of the Representative from the Office of Personnel Management:  that “ultimate” perspective which determines a “yes” or “no” in determining the viability of a Federal Disability Retirement Application.

Sincerely,

Robert R. McGill, Esquire

Federal & Postal Service Disability Retirement: Differing Legal Criteria

Similar benefits, at the State, Local, Private levels, and at the Federal level, each contain differing legal criteria for eligibility. Thus, for instance, Social Security Disability benefits require one set of standards of eligibility; private disability insurance policies require a different set of standards; and state disability benefits often differ from state to state.  This is of course true of Federal Disability Retirement benefits under FERS and CSRS — where the legal standard of eligibility is different from Social Security, Worker’s Comp, and State or private disability criteria.

Often, a question is asked whether a medical narrative report which is prepared for submission to the Office of Personnel Management can be used for submission for other “similar” benefits.  The short answer is, “It all depends”, but the long answer is that, in most cases, one must be very cautious.  When I represent a Federal or Postal employee under FERS or CSRS, one of the first steps in preparing a viable case is to request of the treating doctors a detailed medical narrative report.  One must understand that the treating doctor has, generally speaking, next to no idea as to the legal criteria that must be met under FERS or CSRS.  Furthermore, the treating doctor has no legal knowledge as to the differences between private disability insurance policies, State, Social Security, OWCP or FERS & CSRS.  It is the job of the Attorney to make sure and guide the treating doctors as to the criteria which must be met as to the particular and specialized field for which the medical narrative is being prepared.  This must be done with care, and with detailed guidance.

Sincerely,

Robert R. McGill, Esquire