Federal Disability Retirement: The Rarity of the “Clean” Case

“Clean” cases are those which need no further elucidation. Like events and documents which speak for themselves, the clean case in a Federal Disability Retirement application, as in other sectors of legal encounters and adversarial processes, requires little, if any, explanatory addendum.

It is a rarity for two primary reasons:  First, because life itself defies a linear, uninterrupted sequence of events which follows along the parallel universe of administrative rules and regulations, and second (and probably more importantly and certainly problematically) because most people are unable to distinguish between an objectively clean case, and one which — because of one’s personal and subjective involvement in one’s own case — merely appears to be less embroiled than others with potential problems.

The Federal or Postal Worker who is preparing one’s own Federal or Postal Disability Retirement application, is the same person who suffers from the pain or psychiatric illness which is the foundation and basis of one’s claim.  As such, because the private world of medical disability is the identical consciousness which must prepare, formulate and present one’s Federal Disability Retirement application, whether under FERS or CSRS, to the U.S. Office of Personnel Management, it is difficult to make an objective, unbiased assessment of one’s own case.

The one who “feels the pain”, believes that one’s own pain is in and of itself persuasive to others as to the extent and severity of that pain.  That is why the truly “clean” case is a rarity; it exists mostly in the minds of those who believe in their own suffering.  The rest of the world, however, has little empathy for the suffering of others, and the systematic, bureaucratic volume of denials in Federal Disability Retirement applications is a testament to the harsh reality of the world in which we occupy.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: The Non-nexus

Meeting an adequacy test may constitute sufficiency for some purposes, but not for others.  Thus, it may be enough in completing an FMLA form to have a diagnosis, along with answers to other questions on WH-380-E.  But mere identification of a medical condition via a diagnosis, along with a description of symptomatologies will not be enough to meet the sufficiency test in a Federal Disability Retirement application.

People often assume that having a medical condition in and of itself sufficiently explains the severity of one’s condition, and any implied “blank spaces” can be filled in by the mere existence of such a medical condition.  But Federal Disability Retirement, whether under FERS or CSRS, filed through, reviewed by, and approved or disapproved by the U.S. Office of Personnel Management, must be proven by a preponderance of the evidence that the medical condition itself prevents the Federal or Postal employee from performing one or more of the essential elements of one’s positional duties.

As such, the identification and description of a medical condition fails to comply with the adequacy standards in proving eligibility for Federal Disability Retirement benefits.  One must establish, through the conduit of a medical professional, the “nexus” or “connection” between one’s identified medical condition and the inability to perform one or more of the essential elements of one’s job.

The weight of the proof is upon the Federal or Postal applicant.

The foundation of such evidence begins with the identified medical condition, but in and of itself, it is a non-nexus — until it is squarely placed in the context of one’s official position and the duties required by one’s duties.  Thus, the non-nexus become the nexus-point when combined with the identification and description of one’s positional duties.

It is this realization of the step-by-step sequence of proof which constitutes adequacy and sufficiency of evidence, and one of which the Federal or Postal applicant for OPM Disability Retirement benefits must be aware.

Sincerely,

Robert R. McGill, Esquire

Federal Disability Retirement: In Life, the Pragmatic Trumps the Theoretical

In administrative and other processes, as in life generally, there are issues which on a theoretical level would seem to work; but when tested in the “real world”, somehow the perfect paradigm suddenly disintegrates.  Thus, one may ascribe a series of seemingly logical propositions, each in their independent and isolated delineations apparently stand strong and without a flaw; but somehow, in their linear progression of dependence, one upon the previous one, the linkage itself may be the determining factor.

Thus the old adage:  An X is only as strong as the weakest link.

In preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, the Federal or Postal employee may lay out a plan of attack which, on its face, may appear sound and credible; but as experience in anything constitutes the crux of everything, so the first-time experience of thinking that one’s own case is a “slam-dunk” case because the “pain I feel” is so excruciating that there is no way that OPM could do otherwise than to approve my case, may be that weakest link.

Think again.  OPM deals with thousands of such cases; your particular case, as the unique case singularly known by you, is essentially a mere theoretical example of countless other such cases.  The pragmatic reality of the Federal bureaucracy is what one must ultimately face; again, as in life in general, the practical aspects of an engagement rules the day.

Sincerely,

Robert R. McGill, Esquire

Medical Retirement for Federal Workers: The Veil of the Self-evident Case

A veil is an article of clothing which hides part or all of a person.  It is worn with the intention of concealing.  The history of Western Philosophy, from the time of Plato to the 20th Century writers such as Heidegger, is one encompassing the tension between reality and appearance, of concealment and revelation; in its simplest form, a struggle between truth and falsity.

Studies in psychology have shown how people often see what they desire to see, and self-justification is a force within man’s psyche which allows for actions beyond the moral sphere to be engaged in; for it is man who makes the law, and can provide the linguistic elasticity of rhetorical flourishes in order to abide by them.

In preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, it is often the case that the Federal or Postal worker has entirely convinced and persuaded him or herself that one’s own Federal Disability Retirement application is “self-evidently” an eligible case.  But clearly there is a distinction between an “eligible” case and one of “entitlement”, where the former must be proven, and the latter merely applied for.  As to the former, in a Federal Disability Retirement application, one must prove by a preponderance of the evidence that one fits into the latter category.

Remember that a “veil” can do more than one thing — yes, it can conceal, but it can also deceive, and self-deception can be the result of placing a veil over one’s eyes.  For, as a veil can conceal from the perspective of the “other”, so it can hinder the viewpoint of the person it conceals.

The necessity of objectivity in preparing and formulating a Federal Disability Retirement application is almost always without question.  The fact that the Federal or Postal employee experiences the medical condition is not the basis for an automatic approval from OPM; far from it — it is the ability to prove a case which must be the deciding vehicle of a Federal Disability Retirement case.

Sincerely,

Robert R. McGill, Esquire

 

Postal and Federal Disability Retirement: The Easy Case

Life presents conundrums; puzzles exist to be solved, but few attempt to understand the foundational precepts which need to be discovered and applied; ergo, Aristotle remains an esoteric author of antiquity, to be rediscovered and in whom delight approaches an enduring mystery.  In every endeavor of that vast designation identified as “life”, difficulties abound, challenges confront, and obstacles confound.  One hears about the “easy” life, how X has it so “comfortable”, and the proverbial, “if only I…”

In preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, one often hears about the “easy” case — it proves itself; the evidence is so overwhelming that…

Take the following hypothetical:  X has an OWCP case approved; Second opinion and referee doctors all state that X cannot return to performing one or more of the essential elements of one’s job; additionally, SSDI has been granted; and on top of everything else, the agency has removed X from the Federal or Postal rolls, based upon one’s “Medical Inability to perform the essential elements of his/her job.”

As Federal Disability Retirement cases go, this may constitute and possess elements which most would consider a “sure thing”.  Easy case?  What is missing?  As to the first question, the answer is a resounding, “No”.  As to the second question, those who have inquired as to the “first principles” in Aristotelian fashion, will be able to discover the answer, and this author need not state thejavascript:; obvious.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Always Prepare for the Eventuality

The “cut and dry”, “slam-dunk”, “no possibility of denial” case rarely exists.  In preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS, the approaching attitude of humility, caution and scrupulous care for detail should always dominate, and any attitude that one’s Federal Disability Retirement application should be treated as a “given” will often backfire.  

Such an attitude, however, should be distinguished from one of confidence.  

If one has properly prepared one’s case, with scrutiny of detail, meticulous compilation of medical evidence, technical application of legal citations and attention to creating the nexus between one’s medical conditions and the positional duties of one’s job, then the Federal or Postal employee should be confident that the Federal Disability Retirement application, whether under FERS or CSRS, will be approved, whether at the Initial Stage of the administrative process, at the Reconsideration Stage of the process (both at the Office of Personnel Management), or at the “legal” forums — the Merit Systems Protection Board, the Petition for Full Review, or the Federal Circuit Court of Appeals.

What is always important throughout the process — whether with an attitude of confidence, humility, or even arrogance — is to prepare the foundation for each stage, with an eye towards the next stage.

Thus, careful preparation — of thoughtful and concise legal citations and arguments — are not necessarily for the “present” stage, but always for the future.  For, everything that one does in life should always contain an ingredient of preparation for the future, and for a future eventuality; preparing, formulating and filing for Federal Disability Retirement benefits under FERS or CSRS is no different.

Sincerely,

Robert R. McGill, Esquire

Federal Employee Medical Retirement: NRP, the Flight Surgeon and others

What do the National Reassessment Process for the U.S. Postal Service, the Flight Surgeon for the Department of Transportation, Federal Aviation Administration, and other entities/personnel from other agencies have in common?  

With respect to Federal Disability Retirement applications under FERS or CSRS, the commonality which weaves throughout all is the ability to declare an effective end to a Federal or Postal employee’s career, by asserting that the Federal or Postal employee can no longer perform one or more of the essential elements of his or her job, and because the agency is unable to accommodate the Federal or Postal employee, the resulting option left is to file for Federal Disability Retirement benefits with the Office of Personnel Management.

Logically, one would assume that such an agency action would result in essentially an automatic approval of a Federal Disability Retirement application.  Such an assumption would be erroneous, and to proceed to prepare, formulate and file a Federal Disability Retirement application based upon the erroneous assumption could result in delay, detriment, and ultimate denial by the Office of Personnel Management.  

One must always remember that, separate and apart from what the Federal Agency or the U.S. Postal Service does, the Federal or Postal employee must always be the one to affirmatively prove one’s case, by gathering and presenting the proper medical documentation, and formulating the nexus between the medical condition suffered and the essential elements of one’s job.  

Whether the Flight Surgeon at the FAA medically disqualifies you; whether the National Reassessment Process makes a declarative statement that no jobs are available to a particular Postal Worker; or whether the Federal Agency states that they are separating you because of your medical inability to perform your job — while the commonality between them exists, it does not extend to the Office of Personnel Management.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Medical Disability Retirement: You Still Have to Prove your Case

In preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS, many Federal and Postal employees operate under the misguided presumption that, if the Agency has acknowledged one’s medical conditions, cannot accommodate the Federal or Postal employee, and explicitly concedes that the disabled Federal or Postal employee cannot perform one or more of the essential elements of one’s job, that an approval of the Federal Disability Retirement application is nothing more than a mere formality beyond its submission.  

Thus, for example, the scenario as painted herein might include the Flight Surgeon’s determination for the Air Traffic Control Specialist who works for the FAA, who disqualifies the ATS for either his/her medical condition, or the medication regimen that he/she is taking; or it may involved the Postal Worker who is sent home pursuant to the National Reassessment Process; or it may be a Federal or Postal worker who has been administratively separated from Federal Service based upon his or her medical inability to perform the essential functions of one’s job, and thereby is entitled to the Bruner Presumption.  

All of these case-studies are “nice”; they are promising, and there is obviously substantive and useful evidence that the Federal or Postal employee is probably eligible for Federal Disability Retirement benefits — but what the Agency does or says is not enough.  The Federal or Postal employee must still meet the burden of proof and prove by a preponderance of the evidence that he or she is eligible and entitled to Federal Disability Retirement benefits under FERS or CSRS.  

The Office of Personnel Management is an independent agency, separate and apart from the other Federal Agencies or the Postal Service.  What determinations are made by the other agencies will not persuade OPM of anything; in a Federal Disability Retirement case, you must prove your case of medical eligibility, above and beyond what the Agency says or does.

Sincerely,

Robert R. McGill, Esquire