FERS Disability Law: The MSPB and Consistency of Argumentation

Is it even important, anymore?  Lawyers, of course, are notorious for making alternate arguments, presenting to a Judge or a Jury different explanations, alternative legal theories and justifications, often within the span of a single sentence, and even sometimes contradicting each other.

It is only when the contradiction occurs within the confines of a single theory that the Judge may say, “Wait, counsel — hoooooold on there!  Are you trying to argue X and Not-X at the same time?”  The answer by the clever lawyer: “No, your honor, I am merely pointing out that X could be, and Not-X is also credible, leaving my client to appear not only as an innocent bystander but, moreover, a not-guilty one as well!”

In some forums, that may hold; but in a Federal Disability Retirement case, the only way that inconsistency of argumentation works is when an OPM Medical Specialist says so.  OPM denies cases systematically without any regard to consistency of argumentation.  This is because there is no accountability at the U.S. Office of Personnel Management.  They can review a case, deny it, and it is out of the hands of the Medical Specialist who made the decision.

Then, at the Reconsideration Stage, a completely different Medical Specialist will make a brand new determination, based upon his or her own perspective and viewpoint, and it need not have any consistency of argumentation with the previous decision.

Fortunately, however, when it goes before an Administrative Judge at the U.S. Merit Systems Protection Board, Consistency of Argumentation becomes an important factor.  For, that is one of the primary basis upon which an MSPB Federal Disability Retirement case is lost — when consistency of argumentation based upon the evidence becomes questionable.

Inconsistency is the downfall of most cases at the MSPB; consistency — even with less than adequate evidence of a compelling nature — will often overcome much, and win the case.  The one thing that Administrative Law Judges at the MSPB dislike above all else: Inconsistency in testimony, Inconsistency in evidence, and Inconsistency in the closing argument of an attorney.

Sincerely,

Robert R. McGill
Lawyer exclusively representing Federal and Postal employees to secure their Federal Disability Retirement benefits under FERS from the U.S. Office of Personnel Management.

 

Postal and Federal Employee Disability Retirement: A Sense of Unease

It comes upon us at various moments and at unsettling times.  The problem, however, is that we all believe in our own “intuition” — that mysterious “sixth sense” that 4 a.m. radio programs like to talk about, about the eerie phenomenon of strange happenings, haunted houses and voices heard from another world.

Why we focus upon old Uncle Ben from the netherworld when there are enough unsettling events occurring right before our eyes, is a question we never ask and fail to answer.  The answer is: What is mysterious as a 3rd-party distraction is more interesting than the events unfolding before our very eyes.

The reality is that this time — the very times we live in now — has enough to give us a sense of unease.  A government which is not working; a country that appears fractured into 2 parties constantly fighting; a “gig” economy that appears to be in constant flux; wars, endings of wars, mass evacuations; no wonder there is a sense of unease.

Then, when a Federal or Postal employee suffers from a medical condition such that the medical condition impacts one’s ability and capacity to work in the chosen field of one’s career — that, in and of itself, can bring about a greater sense of unease.

Time to consult with a disability attorney who specializes in Federal and Postal Disability Retirement Law.

Preparing an effective Federal Disability Retirement application under FERS will not necessarily alleviate the sense of unease twirling about in the greater universe, but it will at least address the turmoil within your personal and professional life.  And that, of course, is the first step towards ameliorating the sense of unease.

Sincerely,

Robert R. McGill
Lawyer exclusively representing Federal and Postal employees to secure their Federal Disability Retirement benefits under FERS from the U.S. Office of Personnel Management.

 

Federal Disability Retirement: The Cheapness of Life

We give lip service to the belief that “life is sacred” or that “each life is unique”, but a society’s actions rarely support the sincerity of such a belief.  Sincerity of words cannot be affirmed by more words piled on top of words previously spoken; rather, it can only be validated through actions affirming such words, lest emptiness of belief be revealed through the inaction evidencing hypocrisy. How we treat one another; what we are willing to do for our fellow man; how we treat both strangers and friends alike; these actions, in contrast to the words we use, show and reveal the cheapness of life.

For Federal employees and U.S. Postal workers who suffer from a medical condition such that the medical condition prevents the Federal or Postal employee from performing one or more of the essential elements of one’s Federal or Postal job, the cheapness of life is revealed through the manner in which the Federal or Postal facility treats you once it has discovered that you are no longer valuable to the Federal Agency or the Postal facility.  Federal Disability Retirement is a benefit under the law which affirms the value of Federal and Postal employees; how your Agency or Postal facility treats you does not undermine the fact that Federal Disability Retirement is available when needed.

Consult with a Federal Disability Lawyer who specializes in FERS Disability Retirement Law and affirm the opposite of the view that the cheapness of life is the primary value to be upheld.

Sincerely,

Robert R. McGill, Esquire
OPM Medical Disability Retirement Attorney

 

FERS Employee Disability Retirement: Sequential Arrangement

If an individual was about to move into a home or an apartment, but the place needed a fresh coat of paint, would you advise that person to move all of his or her furniture into the place first, then paint the place — or first paint the place, then move in?

The question seems rather redundantly unnecessary, and the answer rather redundantly obvious; but, then, if one doesn’t think about the sequential arrangement of tasks to be accomplished, or even that the person in question simply has had no experience in such matters, perhaps the obvious must be pointed out for its logical consequences.  Clearly, it would make things easier to paint an empty premises as opposed to having the place cluttered with furniture and knick-knacks, exposing everything to paint droppings and just to even consider the logistical nightmare of trying to paint around a cluttered apartment or home full of furniture, etc.

Sequential arrangement is important in most matters — which should be done first; what needs to be accomplished as a preface to the step following, etc.

For Federal and Postal employees contemplating Federal Disability Retirement as an option to pursue, the fact that the forms presented — both the Standard Form 3107 series as well as the SF 3112 series — come in a sequence does NOT mean that you should complete them in the sequence arranged by the Federal Government.  Sequence is important because the information you provide depends upon the previous information you have gathered, and the sequence of such information is important and relevant in preventing any developing inconsistencies.  Just because SF 3107 and SF 3112 come in a neat and tidy packet arranged in a sequential manner does not mean that the sequential arrangement should be followed.

Consult with a FERS Disability Attorney who specializes in Federal Disability Retirement Law and discuss the sequential arrangement of steps to follow that will benefit your particular case, and not the case that can be made against you by the U.S. Office of Personnel Management.

Sincerely,

Robert R. McGill, Esquire
FERS Disability Retirement Lawyer

 

Federal & Postal Disability Retirement: The Qualifying Standard

What if a group of individuals gathered to compete in a race, of sorts, and trained, engaged in strenuous preparatory work and did all of the things necessary in order to “qualify”? They all gather on the agreed-upon date and, in customary athletic clothing, run a predetermined distance where 3 individuals out of ten cross a white line in sequential fashion. There is no doubt as to who the 3 “front runners” were. Yet, when the prizes are handed out, they are given to the 10th, 7th and 5th place runners. There is an understandable uproar. A protest is filed.

Umpires and referees gather (are there such people, or is that just in baseball, football, soccer and basketball?) and discuss the situation at length. Small, hand-held rule books are consulted and the audience sits in anguished silence as the outcome is debated in a deliberative fashion. Furrowed eyebrows are mashed in faces of concerned silence; the crowd that had gathered to witness the sporting event argue vociferously over the unfairness of it all; television crews have arrived, having been tipped off that a major scandal has been scented and the sharks have gathered for the afternoon kill.

No one notices that a little old man who has stood watching the entire spectacle with a peaceful, quiet calm has slowly made his way onto the platform where a microphone has been set up. He approaches the podium, adjusts the contraption and begins thus: “Ahem”. He pauses, waiting for everyone at the event to recognize the point from where the clearing of his throat originated, and continues on: “I am Mr. X; I organized this event. If you look at the last paragraph of the rules-book, it specifically states the following: ‘Mr. X is the sole determiner of the qualifying standard’. I am, as I said, Mr. X, and I determined that runners 5, 7 and 10 are the winners. End of story”. The little old man then turns around and walks back down, and away from the event.

Now, for Federal employees and U.S. Postal workers who suffer from a medical condition such that the medical condition leads the Federal or Postal employee to file for Federal Disability Retirement benefits, this story may appear to parallel the manner in which the U.S. Office of Personnel Management acts: As a law unto itself.

Fortunately, they are not the sole arbiter of the qualifying standard and, instead, there is such a thing as “The Law”. In order to apply the law and force OPM to follow the true and only qualifying standard, however, it is necessary to “know” the law; and, in order to do that, it is best to consult with an attorney who specializes in Federal Disability Retirement Law. Otherwise, you might be subject to the same standard (or lack thereof) as the little old man who does what he wants on any given day depending on how he feels on that day, or in that moment.

Sincerely,

Robert R.McGill, Esquire

 

OPM Medical Retirement under FERS: Castles in the air

Is it the same idea as Cervantes’ Don Quixote who charges at the wind mills?  Or of Don McLean’s soulful lyrics when he wrote, “And if she asks you why you can tell her that I told you, That I’m tired of Castles in the Air.”?

Is there a difference between dreams and visions realized, and those that remain as castles in the air?  Are such unrealized castles merely the childish remnants that were left behind within the bundled laughter of grown-ups who saw the folly of youth, or are they they vestiges of frustrations discarded because, when we “grow up”, we realize that reality doesn’t quite share the optimism of youth’s unfettered vision?

Whatever the origin, wherever the spark, it is important to preserve a semblance of a dream, even if never realized.  The “dungeon” is its antonym, where all such dreams drain because the lowest point of any location is where the water flows and the desolation of a desert abounds.

For Federal employees and U.S. Postal workers who suffer from a medical condition such that the medical condition prevents the Federal or Postal employee from performing one or more of the essential elements of one’s Federal or Postal job, it may well be that castles no longer exist in the air or elsewhere; that the medical condition itself has become the “reality” that one must deal with, and castles — in the air, on the ground, or somewhere far away — is a luxury one cannot afford to even consider.

And filing for Federal Disability Retirement benefits through the U.S. Office of Personnel Management may be the farthest thing from childhood dreams of what you saw yourself achieving; but in the end, it is the best option available precisely because it frees you from the workplace harassment, embarrassment and resentment where work is no longer compatible with your medical conditions; and as for those castles in the air?

They may still be there once you can focus upon and regain your health; for it is the dream even unrealized that allows for human creativity to spawn and spread, but the pain of a chronic medical condition is what makes of us all the Don Quixote who charges at harmless windmills.

Sincerely,

Robert R. McGill, Esquire

 

Federal Employee Disability Retirement: The river of life

The evocative images of such a metaphorical phrase are immediately understood by most.  As in challenges we all face throughout life, a river snakes across different and foreign terrain; in some seasons, a drought may dry up the vibrancy of the river, while in times of plenty, flooding and overabundance may occur.

There are periods of swift currents, and days of lazy haze; and underneath the calm exterior is an underworld of activity and blur of living, both of tumult as well as those timeless memories forever remembered, and it is precisely the paradigm upon which Heraclitus staked his perspective upon with the statement that “No man steps in the same river twice.”  For, indeed, the essence of the universe is one of ever-present change; it is the one constant in a life filled with unpredictable indifference, of inchoate beginnings that never lead to any fruition; of trials encountered without reason or rationale; and the river of life leads us through the mountaintops of emotional pinnacles and down into the depths of a valley so dark that despondency fails to reach the eternal chasm of sadness undefined.

Streams flowing into rivers; unexpected tributaries swallowing up the nameless and uncharted waters; and of snowcaps that melt and flow without fluidity of purpose, so life brings about such challenges, engagements and unexpected face-offs.  What are we to make of this river?  What to do in this life?  Must we always be defined by accomplishments, or can the value of a human being be sufficient by reason of a self-fulfillment of an ego’s search?  Is it truly the person who has amassed the greatest amount of “stuff” who is considered the “winner”, and does the river of life grant any greater significance, relevance or meaning to the quantifiable monetary value than to the man who dies penniless?

For the Federal employee and U.S. Postal worker who suffers from a medical condition, such that the medical condition necessitates the Federal or Postal worker into preparing, formulating and filing for Federal Disability Retirement benefits with the U.S. Office of Personnel Management, such questions embracing the river of life can be daunting, obsessively important, and awakening of a spark in the deeper recesses of one’s forgotten past to come to the fore.  Why?  Because medical conditions force a prioritization of values, meaning and relevance in one life; and, indeed, that is the foundational essence of every river of life – of what we believe; that we believe; and for which we believe.

Sincerely,

Robert R. McGill, Esquire

 

Medical Retirement from Federal Government Employment: Life’s enjoyment

Are we ever taught that?  If the answer is in the negative, then from whence did we learn, attain or otherwise receive the tools to engage in the purity of sensation such that we could embrace it?  Did we become such through osmosis; from imprints; from learned behavior encompassing a lifetime of observations reinforced by wisdom’s refrain upon the blank chalkboard of our consciousness?  How does one “enjoy” life, anymore than learning to ride a bicycle, drive a car or care for a cute puppy (the last in the list, of course, need not be learned, but only be taken in by the natural affinity one has upon seeing the eyes of warmth, intelligence and fierce loyalty displayed, and is an exception and one of life’s conundrums to be accepted without questioning)?

There are many who walk about, who have absolutely no clue as to how one can, should or would have any enjoyment at all; and thus the total immersion in one’s work, or projects begun and always left unfinished – for, to complete them would mean that something ended, and that would force one into a reflection about the meaning, value and relevance of one’s activities, would it not?

One often hears the familiar refrain:  “I don’t know how to enjoy life; to me, unless I am busy with work, chores, updating my Facebook page, texting friends or jogging, I can’t be happy.”  Productivity is the measure of success; time set aside for vacations – despite still doing email, texting, messaging or other forms of “connectivity” as advertised to be the horror of all horrors if loss of it were to ever occur – is a concept that questions the very meaning of life’s enjoyment.  For, if one pauses for a moment to reflect:  Is the treadmill one is on merely for purposes of getting off for a moment, then to get right back on in order to find, again, a time to get off for another period of repose?

If so, how is that any different from Camus’ essay on the absurdity of life’s perspective as seen through the eyes of a French Existentialist, and specifically, of the Myth of Sisyphus and the condemnation by the gods to roll the boulder up the hill, only to watch it tumble down, then to engage in the eternal monotony of pushing it back up, only to observe its descent?

Life’s enjoyment, and the promise for tomorrow, was always meant to be more than that – of a daily sense of joy, a widespread sensation of contentment, and an ease of burden when once we were innocent children playing with but a ready laughter to give.  It is the truth that haunts, and especially the proverbial quip about the final straw that breaks the camel’s back.  With the persistent onslaught of stimuli unable to be resisted, we allow for the daily bombardment to deplete the little energy we have in reserve.

For Federal employees and U.S. Postal workers who suffer from a medical condition, such that the medical condition not only intervenes in the ability and capacity to perform the essential elements of the Federal or Postal job, but further, depletes, diminishes and – ultimately — destroys even the potentiality to enjoy life and all of its complex presentations, the option to file for Federal Disability Retirement benefits must be considered.

Yes, it is a long and arduous bureaucratic process.  No, going through the process will not enhance, for the short term, life’s enjoyment.  But in the end, necessary changes are called for – nay, compelled by – medical conditions that interrupt life’s enjoyment, and filing for Federal Disability Retirement benefits, whether the Federal or Postal employee is under FERS, CSRS or CSRS Offset, is to enhance that potential for the future enjoyment of life’s joys, while perhaps foregoing the short-term stubble of inconvenient interludes of angst-driven necessities.

Sincerely,

Robert R. McGill, Esquire

 

FERS & CSRS Disability Retirement: False Positives

We demand that a “retest” be done, to ensure that the result did not have the opposite effect.  It is a linguistic conundrum that the affirmative means its negative; for, in medicine, a “positive” result is the worst of news, whereas in most every other context, it is a welcomed declarative.  But because it is a result which is not embraced with delight, we ask that it be further verified in the event that the “positive” is a false one, and we want it instead to not be a true one, and thus ask for a retest in order to see whether the second one will result in a true negative, which is the opposite of a true positive in hopes that the first positive result is a false one.

Are there such similar circumstances in daily life, apart from the medical field, where we received results of false positives?  The latter term in the phrase is misleading, precisely because laudatory declaratives are normally welcoming additions; yet, combined with the former word that essentially negates the latter, it is an oxymoron of sorts and is thus relegated to a defined field in the medical arena.

But false positive do rear their ugly heads now and again; in employment, where awards and exuberant encouragement are provided with nary a compensatory incentive, giving the impression that the company recognizes the employee as a valued asset, all the while withholding that most coveted of advancements – the “raise”.

That is surely a “false positive” that needs to be retested.

Or, of loyalty seemingly accorded by a Federal agency or the U.S. Postal worker, so long as productivity is met and the “mission of the agency” is placed on a priority basis, where long and uncompensated hours, both in physical presence and cognitive input when exhaustion from work, worries and problem solving overwhelm and consecrate; but when it really “counts”, does the concept of loyalty allow for bilateralism, or was it merely a one-way street:  Your loyalty to the Federal Agency or the Postal Service, in return for a false positive?

Is filing a Federal Disability Retirement application considered a “false positive”?  Or even in an inverted sense – it is “positive” because it is a benefit which is available when (often) all other options have failed; it is purportedly “false” because it means giving up one’s career and being presented with a future with less income.

But it can also possess an inverted meaning –  of a false positive because it is an a recognition that the medical condition has come to a point where an admission must be made:  the falsity of hope in relying upon the Federal Agency or U.S. Postal Service to reward one’s undiminished loyalty these many years and decades, would result in an accommodation of the medical condition, combined with a sense of positive outlook for the future because of this past reliance.

No – unfortunately, such a false positive would surely have to be retested, and the result would be that, yes, the false positive of having the ability to prepare, formulate and file for Federal Disability Retirement benefits is indeed a true positive that is there to be accessed.

Sincerely,

Robert R. McGill, Esquire

 

OPM Disability Retirement: Arrive with bluff, depart with bluster

That has become the motto of universal exceptionalism; it is the bravado of the incompetent, the arrogance of the ignorant and the methodology of the unwary:  besides, it is a funny line plagiarized from a work by Evelyn Waugh (no, that is a male writer, not a female).

It is to come into a circumstance, a job, an assignment or a social conduit acting like one knows what one is doing, messing everything up, then leaving the desecration of incompetence and a heap of human detritus for others to deal with, while all the while turning up one’s nose, shaking the proverbial head in disgust, and departing with an unjustified defense of one’s own incompetence with:  “You guys are hopeless.”

That is the guiding declarative foundation of all self-help books, advice columns and Oprah-wanna-bees in columns of suspicious pearls of so-called wisdom:  “The key is to act like you know what you are doing, with confidence and assertiveness; the rest will follow and everyone will believe in you.”  Or, in other words, believe in yourself despite not knowing anything; act with declarative arrogance; be self-confident (of what, we are never told) and take charge of your life.  Then, if things don’t work out, don’t be too hard on yourself (or, better yet, not at all) and don’t ever allow others to get you down.

Such a foundational folly of methodological madness fits in very well, and is completely commensurate with the cult of youth; for, even if we all know that the younger generation knows not anything but having been coddled throughout their educational years (hint:  a euphemism for indoctrination for heightening self-esteem), the world generally operates on its own in spite of massive and daily incompetence, but that is precisely why there is a need to hire a dozen people for every job:  quantified incompetence somehow makes up for qualitative lack.

Once upon a time, bluster was known, recognized and dispensed with; and bluster was laughed at, mocked and ridiculed.  Now, it is an everyday and common occurrence, because the substantive basis has been ripped out and the soul is now an empty cavern of echoing banter steeped in words of meaninglessness topped by nonsensical linguistic cacophonies of boundless chatter.

Yet, there are times when substance matters, as when a Federal employee or U.S. Postal worker experiences a medical condition, such that the medical condition begins to threaten one’s ability and capacity to continue in the position one is designated in.  That is the time when neither bluff nor bluster is desired, needed nor welcome.

Honest answers and forthright advice is what needs to be obtained, both from Supervisors, coworkers and Human Resource personnel; in the legal advice rendered and received from one’s Federal Disability Retirement lawyer; and from friends, family and loved ones in pursuing this very difficult bureaucratic process couched within a cauldron of administrative nightmares.

We arrive into this world without a clue; we learn to bluff, even when we don’t want to; and when we depart, it is up to us as to whether there needs be an imprint of bluster, or whether the honesty that still resides in the essence of our soul may still reveal a vestige of the true character we maintained, in preparing, formulating and filing an effective Federal Disability Retirement application, whether the Federal employee or U.S. Postal worker is under FERS, CSRS or CSRS Offset.

Sincerely,

Robert R. McGill, Esquire