Postal and Federal Disability Retirement: A Directionless Travelogue

Traveling without knowing where one is, is perhaps the foundation of being “lost”; to compound such a problematic situation would be to also not even know where one is going.  The choices provided in this modern age reveals that information does not constitute wisdom or intelligent choice; for, if the converse were true, as society now possesses a vast vault of information, we would consider ourselves at the height of intellectual acuity.  Have you ever looked through various travelogues?  Brochures, commercial proposals, travel agents — the more one reads, the more confusing it gets.  

As with everything and anything in life, preparing, formulating, and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management first, and foremost, requires a sense of direction.  But where does one obtain such a sense?  Certainly not from the U.S. Office of Personnel Management — as they are the agency which will scrutinize and review a Federal Disability Retirement application, to obtain information from them would be like asking the proverbial fox how best to guard a henhouse.  Yes, sometimes studying one’s “enemy” is beneficial, but in this case, a regurgitation of the law, as interpreted by OPM, will not provide a sense of direction.  

The key in a Federal Disability Retirement case is to first accept and acknowledge that the Federal or Postal employee has come to a point in his or her life where some action is needed.  Once that is established, the next step is to search for the travelogue which will be most effective in getting the Federal or Postal employee from the present location, to the destination of a successful outcome.

Any other travelogue is merely an attempt to sell a dream; and while dreams are nice to have, they are best enjoyed within the security of a good night’s sleep, which comes from knowing where one is, where one needs to go, and how to get there.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Government Employees: The Realizing Process

By definition, a process entails multiple procedural steps.  Filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management encapsulates procedural administrative steps, and these include denials and appeals.

Yes, it is true that a certain percentage are approved at the first stage of the process.  Yes, it is also true that not everyone must go to the Second, or Reconsideration Stage of the process, or the Third Stage, the U.S. Merit Systems Protection Board.  But the fact that “not everyone” must be subjected to X, does not undermine, erase, or otherwise nullify the truism that it still remains a “process”, as opposed to an application for an entitlement benefit.

As a process, one’s Federal Disability Retirement application with OPM must be proven.  In order to prove a case, one must submit certain qualifying documentation.  As the U.S. Office of Personnel Management is the initial and secondary reviewer and determining agency for the first two stages of the process, so they have personnel of differing qualitative abilities — from pure incompetence, to indifference, to superior case workers who understand the full and complete application of the law, the regulatory criteria, and the statutory applicability of case-law interpretation.

Since it is the only process around, it is something we have to live with, and ultimately, follow.

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 Employee Medical Retirement: Proper Responses

A receipt of a denial from the Office of Personnel Management to a Federal Disability Retirement application under either FERS or CSRS is always an event which is upsetting to a Federal or Postal employee, but it is “part of the process” which occurs often enough.  

If it is a second denial (where a Request for Reconsideration has already been accomplished, and the Office of Personnel Management has denied it again), then the only appropriate response is to file an appeal to the Merit Systems Protection Board (no response is required, or even appropriate, to OPM, as it is out of their jurisdictional purview upon denying it a second time).  

If it is a “first denial“, then a “Request for Reconsideration” must be filed within thirty (30) days of the date of the denial letter (one can argue that the 30 days should be counted from the date of receipt, but it is always better to be on the safe side), and if requested, an additional thirty (30) days is automatically granted in order to have sufficient time to gather and submit further documentation to rebut and answer the denial from the Office of Personnel Management.

Submission of the Request for Reconsideration, and participation in the process of having the Office of Personnel Management reconsider the initial denial, is mandatory, not elective.  By this is meant the following:  You cannot bypass or skip the Reconsideration Stage and jump directly to the MSPB; you must first get a decision on the Request for Reconsideration before the Merit Systems Protection Board will consider your case.  

You cannot get angry or reactive and declare, “I will just file an appeal to the MSPB and have an Administrative Judge look at my case”.  You must patiently go through the proper channels of justice, and respond accordingly.

Sincerely,

Robert R. McGill, Esquire

Federal Disability Retirement: The Entirety of the Process

There is a common understanding, based upon comments and statements made by people over several years, that when an individual files for Social Security Disability benefits, most such cases are denied at the initial stage.  It is almost understood as an “automatic” denial at the first stage of the process. 

Whether this is true or not or, more importantly, whether or not there are some who get it approved at the initial application stage and therefore betray the truth of such a belief, is besides the point.  What is important is the perception that it is so, and therefore, the approach which individuals take in filing for Social Security Disability benefits is altered and adapted accordingly. 

Similarly, in preparing, formulating and filing for Federal Disability Retirement benefits under FERS or CSRS, whether or not most cases get approved at the Initial Stage of the Process, or at the Second, Reconsideration Stage of the process, is ultimately besides the point.  It is important to understand and approach the entirety of the administrative process with a proper frame of mind:  a denial at the Initial Stage of the process of filing for Federal Disability Retirement benefits under FERS or CSRS is not the end of the process; rather, it is just the beginning. 

By approaching the entirety of the process with a correct frame of mind — and reference — one can maintain one’s sanity while waiting for the conclusion of the long and arduous process to unfold.

Sincerely,

Robert R. McGill, Esquire

Federal and Postal Disability Retirement: Easter

Easter is a time of reflection and rejuvenation for Christians.  It is a designated week of Holy reflection — through capture, suffering, death, resurrection and forgiveness.  In a world where the distinction between the sacred and the profane has blurred to indistinguishable heights of platitudes and uncertainties, to reserve a week in one’s life for that which is “Holy” is indeed a phenomena worth preserving.  Christmas has become a season of celebration in a secular sense, full of traditions and shrieks of joy from the mouths of children; Christmas trees, decorations, presents and surprises; and while I am sure there will be disagreement on this matter, the assimilation of Christmas with a secularization of celebration, for whatever reason, is not disturbing.  Yet, somehow, despite the Easter Bunny, egg hunts and the attempt to merely marginalize Easter as a “time of Spring”, the awe of Easter has retained a reserved, contemplative aura with a special meaning. 

As an attorney who represents Federal and Postal employees with various medical conditions and disabilities, the common thread which I hear on a daily basis is the pain and distress which the human condition is able to endure on a daily basis. I do not equate the human condition and the clients I represent with the suffering which Christ endured; yet, those who suffer clearly have an affinity with the One who suffered on the Cross, yet forgave those who condemned and crucified, for the sake of the world.  I am daily amazed and humbled by the positive attitude and ability to endure, by Federal and Postal workers from all across the United States.  May we all have a sense of humanity within us that we can have forgiveness during this Holy Week.  Happy Easter.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: Decisions during the Process

In making decisions during the process of filing for Federal Disability Retirement benefits under FERS or CSRS, it is obviously important to make the “right decision” at each stage of the process.  Thus, for example, if a person files for Federal Disability Retirement, at the first stage it is important to determine which medical conditions to identify and base the application upon; at the Second, Reconsideration Stage, it is important to first identify what substantive concerns which the Office of Personnel Management is proposing (in any given denial of a Federal Disability Retirement case, it is often not that obvious what the OPM Representative is actually stating), and how to go about rebutting and answering the concerns (as opposed to taking a “shotgun approach” and trying to answer each and every concern expressed by the OPM Representative), and further, at the Merit Systems Protection Board, it is vitally important to place all evidence, legal precedents, arguments and objections on the record, so that if the Administrative Judge in the case denies your claim, you have a legal basis to file an appeal.  As always, it is important to see the entire application submission, from beginning to end, as a “process”.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: The Administrative "Process"

I have previously written about how a Federal Disability Retirement application should be prepared:  that it should be looked upon as an administrative “process”, and as such, it is not like taking a test for a driver’s license, or filing an application to obtain a permit — both of which are similarly “administrative” issues.  The reason why filing for Federal Disability Retirement benefits under FERS or CSRS is different, and is a “process” as opposed to merely filing an “application” for something which will be essentially rubberstamped, is that it requires proof which must meet a certain statutory legal standard — it requires that one prove, by a preponderance of the evidence, that one is entitled to receive disability retirement benefits.  

Now, wherever “proof” of eligibility is required, there can be a disagreement as to whether or not such proof met the statutory eligibility requirements.  Other applications, such as filing for a Social Security Card, may also have certain statutory requirements, but normally such administrative applications are fairly “cut and dry” — such as, certain documents will be accepted to prove X, or certain forms may need to be filled out to obtain Y.  But where a legal standard of proof must be met, differences between the Applicant and the Agency may erupt. 

OPM may state, and argue, that the medical documentation, the Supervisor’s Statement, the Agency Certification of Accommodation efforts, the comparison between the applicant’s Statement of Disability and the doctor’s statements and notes — did not rise to the level of meeting the legal standard of “preponderance of the evidence”.  This is where many people get themselves into trouble — by thinking that it is merely an “application” to file in order to obtain an administrative benefit.  Then, when it gets denied at the first level, applicants become devastated, thinking that it is the end of the world.  From the outset, it should be looked at as a “process” — one which may take going to the Merit Systems Protection Board, or even further, to the Full Board Review, and then, if necessary, to the Federal Circuit Court of Appeals.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement: The “Nexus” Between the Reconsideration Stage and the Merit Systems Protection Board

It is an accepted fact that there is a “psychological” aspect to almost everything in life, and this is no less true in the field of disability retirement law.  The “psychological” aspect is the nexus, or bridge, from the Reconsideration Stage to the Merit Systems Protection Board.  From OPM’s viewpoint, this is the last chance to make a decision on a case, before it is taken out of the hands — and therefore “control” — of the Office of Personnel Management.  Thus, OPM wants to be able to “justify” that its decision was reasonable, and legally-based and legally sufficient to withstand the scrutiny of an Administrative Judge.   From the Applicant’s viewpoint, it is a chance to show that OPM was unreasonable for not approving the case.

While it is true that all cases which come before the MSPB are heard de novo (meaning, anew, without regard to prior decisions by OPM), OPM nevertheless never wants to be viewed as ignoring the law and appearing unreasonable, and the Applicant wants OPM to appear unreasonable in the face of the medical evidence already provided.  This is the psychology behind trying to convince OPM to approve a case at the Reconsideration Stage.  Thus, at the Reconsideration Stage, it is important to cite applicable law to OPM, to corner them into a position of appearing unreasonable if the disability retirement application is denied.  On the other hand, the reasonings and underpinning of foundational bases provided in Reconsideration Decisions are often far more superior and accurate than those handed down at the Initial Stage.  In any event, always remember that there is a “psychological” aspect to everything, and it is the duty of an attorney to identify it, use it to the best advantage possible, and cite the appropriate law.

Sincerely,

Robert R. McGill, Esquire

Federal Disability Retirement: Symptoms Versus Diagnosis

If disability retirement were merely a matter of determining the proper diagnosis of a medical condition, and having a doctor ascribe a percentage rating of disability, then the process of disability retirement would substantively be altered, and perhaps there would be far fewer cases to adjudicate at the Merit Systems Protection Board level. For, if the criteria were that ‘cut and dry’, there would be little for OPM and the applicant & the applicant’s lawyer to argue over. However, it rarely is that ‘cut and dry’ — because the major battle is rarely over the diagnosis; it is rarely over an issue concerning a percentage ascription of disability; rather, it is over the symptoms manifested, the significance of such symptoms upon the type of work one does, and in the impact such symptoms have upon the essential elements of one’s job.

That is why descriptive terms are important in disability retirement law. It is not so important ‘what it is’, as opposed to ‘how it is characterized’. From this perspective, it is important for a disability retirement attorney to be more of a poet than to be cold and analytical — although, the best approach would be to have a little bit of both. Remember to always know the context — the applicant will not be standing in front of an OPM representative showing how terrible the applicant’s medical condition is; there will be no visual presentation; everything is based upon a narrative — the applicant’s statement, the medical documentation, the legal memorandum of the attorney, etc. Thus, it is all-important for the attorney who represents a disability retirement applicant to have a good command of the English language.

Sincerely,

Robert R. McGill, Esquire