OPM Disability Retirement: A Semantic Battle?

One may wonder, in any process of the stage of preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS, as to whether an approval is based merely on a “semantic” battle with the Office of Personnel Management.  

Inasmuch as a submission of a Federal Disability Retirement application to the Office of Personnel Management is a “paper submission” (yes, I know, we are quickly moving towards an age of paperless technology, but you know what is meant by the term), and no actual presentation or contact will be made with the personnel at OPM (unless it goes to a Hearing before an Administrative Judge at the Merit Systems Protection Board); as such, the query is sometimes posed as to whether it is merely a semantic battle.  

In the days of Plato and Aristotle, “lawyers” were called “sophists” or “rhetoriticians” — thus, the modern terms of “sophisticated” or “sophistry”, and “rhetoric” or “rhetorical”.  Either or both of the terms imply a negative connotation, that through semantic sleight of hand, one can be fooled into being persuaded to adopt a certain viewpoint or opinion.  

While it may be true to a certain and limited extent that obtaining Federal Disability Retirement benefits under FERS or CSRS may involve some semantic quibbling, the underlying substantive basis in granting or denying a Federal Disability Retirement application, either under FERS or CSRS, continues to remain in “the law” — based upon statutory and regulatory criteria, upon legal opinions from cases decided by the Merit Systems Protection Board and the U.S. Court of Appeals for the Federal Circuit.  

While “how X is said” may have some persuasive effect, it is ultimately still “what is said” that retains the most powerful impact.  Substance over appearance still wins the day — the identical philosophical concerns of Plato and Aristotle continues to remain true today.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: The Flexibility of Language

Language is inherently a flexible tool; it is meant to communicate, and while precision in communication is the defining purpose in the use of the tool, often the essence of language must nevertheless be flexible enough to embrace other, correlative concepts. To limit the tool of language often will lead to undermining the very purpose of the use of such language.  

In filing for Federal Disability Retirement benefits under FERS or CSRS, the use of language in preparing, formulating and describing the interaction between the medical conditions and how it impacts one’s job duties, must allow for some level of flexibility.  For example, if certain chronic symptomatologies result in a mis-diagnosis of a medical condition, should a later (revised) diagnosis be allowed to be argued to the Office of Personnel Management after it has been filed?  

The answer to the question is contained in how the Applicant’s Statement of Disability on Standard Form 3112A is formulated.  If one merely lists the diagnosed medical conditions without describing the symptoms, then the language used has restricted the flexibility of post-filing inclusion.  On the other hand, if one combines the various medical diagnoses, but also includes a descriptive discussion of the symptoms, then the answer is likely, “yes”.  The use of language should be one of precision; how one utilizes the tools of language, however, should remain flexible.

Sincerely,

Robert R. McGill, Esquire

Medical Retirement Benefits for US Government Employees: Numbers

Numbers, statistics and percentages rarely tell a complete story, especially in relation to a person’s medical condition.  In Federal Disability Retirement applications under FERS or CSRS, numbers must be utilized carefully and, more importantly, effectively.  Moreover, numbers can be used to diminish or otherwise minimize the seriousness of a medical condition.

For example, if the loss of a forefinger of a right-hand dominant individual would constitute a 5% disability of the “whole person”, does that tell the full story of the impact of such a medical condition upon one’s ability to perform a job which requires daily manual dexterity & use of the right hand?  Or if the loss of vision in one eye were deemed to be a 10% disability, how would one quantify such a medical condition for a computer graphics engineer?

Scheduled awards for Worker’s Comp requires such quantification; and the Veterans Administration ascribes service-connected disability ratings, but unless one descriptively defines the relevance of such numbers to the impact upon one’s ability/inability to perform the essential elements of one’s job, such numbers lose their importance and relevance.

In filing for Federal Disability Retirement benefits under FERS or CSRS, it is important to recognize that the language used, and not the numbers ascribed, determines the relevance and ultimate success.  Numbers must be descriptively quantified; numbers in and of themselves never tell a story, except perhaps to the mathematician, which the workers at the Office of Personnel Management are not.

Sincerely,

Robert R. McGill, Esquire

 

Early Retirement for Disabled Federal Workers: The Percentage Language Game

To the question:  “What medical disabilities do you have,” is often the response in terms of a percentage language game:  “The VA has given me a ____”; “My doctor rated me at____”.  In the proper context, in the relevant process, such percentage ascription reflecting a numerical value may be workable, as well as persuasive.  But in a Federal Disability Retirement application, where the persuasive essence of a well-formulated Federal Disability Retirement application under FERS or CSRS is constituted by a discussion of the delineation of symptoms as opposed to numbers; physical and cognitive impact as opposed to quantitative value; such language is meaningless unless it is interpreted and translated in terms of the human impact upon one’s job functions.  

That is not to say that the numerical value cannot be used; rather, it must be used with caution, and in a way that shows that, beyond the numbers, there is an essential impact in terms of one’s inability to perform one or more of the essential elements of one’s job.  Thus, the “language game” of numerical values, while important in other filings and proceedings, may be of less significance in the formulation of a Federal Disability Retirement application under FERS or CSRS.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: A Different Language Game

Wittgenstein was a philosopher who is well-known for his discussion about different “language games”.  In preparing a Federal Disability Retirement application under FERS or CSRS, it is well to understand that, indeed, there is a different type of language game when formulating and submitting a Federal Disability Retirement application, distinct from preparing a Social Security Disability application, or an OWCP case, or a VA disability case.  

Often, when people first contact me for an initial consultation for filing of a Federal Disability Retirement application, he or she will still be “stuck” in the language game of some other process, and will continue to use inapplicable terms such as, “I have a rating of..”; “it was caused on the job”; “I haven’t yet reached MMI”; and other such similar terms, phrases and concepts which, in a different process, a different context — a different language game — may be perfectly meaningful, but in the preparation and formulation of a Federal Disability Retirement application, are either partially or wholly inapplicable, and sometime distracting from the essence of what is needed in approaching a Federal Disability Retirement application.  Remember, not all processes are the same, and a switch in conceptual paradigms, and the use of a proper language game, is necessary in order to be successful in preparing and filing a Federal Disability Retirement application under FERS or CSRS.

Sincerely, Robert R. McGill, Esquire