Federal Disability Retirement: Doctors and the Peculiarities of Treatment

Efficacy of treatment is the goal for a doctor; and upon information that such efficacy has failed to render improvement or incremental signs of progress, many doctors lose interest, or become suspicious.

Social Security Disability, of course, requires a higher standard of proof — one of essentially “total disability”, where one is no longer able to engage in “substantially gainful activity” — and, as such, is an implicit admission of medical failure.

FERS & CSRS Disability Retirement, however, is merely an acknowledgement that there are certain medical conditions which, limited in their scope and impact, prevent a person from performing one or more of the essential elements of a particular kind of job.  Such a person who goes out on Federal Disability Retirement benefits can still remain productive in the work-world, by pursuing another, different kind of vocation.

As such, from a medical point of view, conveying the distinction between the two is like the difference between identifying a hill as opposed to a mountain:  both may have some elevation, but the extent and scope between the two goes well beyond a linguistic peculiarity.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement for Federal and USPS Workers: Proof, Assertion, and the Conceptual Distinction

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 necessary — first and foremost — to understand that the benefit of Federal Disability Retirement is not an “entitlement” under any definition of the word; there is no automatic triggering mechanism by which a Federal or Postal employee becomes a Federal Disability Annuitant, unless one proves, by a preponderance of the evidence, that one has met all of the eligibility requirements necessary to obtain the benefit. 

Further, while the standard of proof established by statute is a relatively low one in comparison to others (i.e., “preponderance of the evidence” merely requires that the truth of X is more likely than not, as opposed to other, more onerous standard of proof, such as “beyond a reasonable doubt” or “clear and convincing”, etc.), nevertheless, the mere assertion of a statement of facts will not qualify the Federal or Postal employee for Federal Disability Retirement benefits.

A standard — or “burden of proof” — means exactly that:   One must prove it, and proof requires more than the mere assertion that X is so.  Specifically, in an OPM Disability Retirement application, one must prove that one is medically unable to perform one or more of the essential elements of one’s Federal or Postal position, and in order to meet that burden, medical documentation of a sufficient and persuasive nature must be submitted along with a Federal Disability Retirement application, which includes many Standard governmental forms.

Knowing and recognizing the conceptual distinction between asserting X and proving X is an important first step in preparing, formulating, and successfully filing for OPM Disability Retirement benefits.

Sincerely,

Robert R. McGill, Esquire

Medical Retirement Benefits for US Government Employees: Sounds Good

There are various stages of the administrative process designated and defined as “Federal Disability Retirement” — the initial application stage of the process, where one must attempt to prove by a preponderance of the evidence that one is eligible for Federal Disability Retirement benefits; if disapproved and denied, then the Reconsideration Stage of the process (where one may submit additional medical and other documentary evidence to persuade the Office of Personnel Management to reverse themselves); an appeal to the U.S. Merit Systems Protection Board, where the Federal or Postal applicant’s Disability Retirement application is taken out of the hands of OPM and transferred to an Administrative Judge, who will hear the case anew, without regard to what OPM has decided in the past; a further appeal to the Full Board of the MSPB in the event that the Administrative Judge issues an Initial Decision which affirms and upholds OPM’s denial of the case; and a further appeal to the Federal Court of Appeals for the Federal Circuit.

Throughout this process, and especially in the administrative stages before the Office of Personnel Management, one should make a distinction between “sounding good” and “being right”.  Hopefully, the Federal or Postal employee who has filed for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, is both right and sounding good. But there is a distinction to be made.  For example, OPM will often — in their denial letter — “sound good” but be completely wrong on the law.  They will cite medical textbooks which skew the legal standard of review; creep into the discussion of a denial letter such terms as “no significant disability rating to speak of,” or that you don’t suffer from a disability which “incapacitates” you.  It all “sounds good”, but it is not true precisely because it is not the applicable standard of law to be applied.

At the initial stages of the process, OPM can get away with such nonsense, because most people don’t recognize the untrue and inapplicable standard of law being applied.  In the later stages of the process, however, when an Administrative Judge hears a case, it becomes important not only to “sound good”, but to also apply the right legal criteria.

Appearance versus reality — it is the argument of Western Civilization from the pre-Socratics onward.  As Alfred North Whitehead once observed, all of philosophy was already written by Plato and footnoted by Aristotle.  That statement both sounds good, and is indeed right on point.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Medical Disability Retirement: The Only Real Standard

In legal parlance, there are various and multitudinous “standards” — of proof; of evidence; of law, etc.  Some have higher, more stringent requirements; others are considered fairly de minimis, and can be satisfied with sufficiently targeted evidence.  All, however, share a common thread — that of persuading the trier of facts.

In preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, the standard of proof to be applied is one of “preponderance of the evidence”, which is considered a fairly low standard.  However, the only real standard of proof in any case — whether in administrative law, such as Federal Disability Retirement, or in civil litigation, criminal court, etc. — is one of pragmatic reality:  whoever hears the case, it is necessary to persuade the decision-maker.

Obviously, there is a distinction between an onerous standard, such as “beyond a reasonable doubt”, in comparison with a lower standard of proof such as “preponderance of the evidence”.  Whether, if and when, one has met a standard of proof, is not based upon a scientific calculus, and indeed, that is precisely why in closing arguments, an attorney will repeatedly argue that one has met the X-standard of proof, and these Y-reasons are why.

Theoretically, persuasive argumentation is not necessary if the facts themselves prove the argument.  In reality, however, it is the argument which brings the facts together into a coherent whole, and presents them to the viewer within a context and a specific perspective, such that the viewer or recipient of such information and facts can make a logical connection between a disparate conglomeration of facts, and reaches a conclusion that yes, the purpose for providing such facts has met its goal, etc. The key is to argue without seeming to argue.

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 important to understand this point of pragmatism:  One can get lost in the morass of legal parlance, and worry excessively about meeting the legal requirements; in the end, it all comes down to presenting an effective, persuasive Federal Disability Retirement packet, such that one receives a letter of approval from the Office of Personnel Management.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Government Employees: The Weight of Evidence

In preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS, the reason why it is important to understand, reflect upon, and have a practical knowledge of the laws governing Federal Disability Retirement issues — both in terms of statutes which govern and dictate the criteria for eligibility of Federal Disability Retirement benefits; the regulations which are propounded by the Office of Personnel Management; and the case laws which are administrative judicial opinions handed down (from the Merit Systems Protection Board, to the Full Board of the Merit Systems Protection Board; to the Federal Circuit Court of Appeals, etc.) — is that there is always a “trickle down” aspect to the evolving laws in any system of laws.

Thus, the opinions handed down by Administrative Judges at the Merit Systems Protection Board, as well as by Judges of the Circuit Court of Appeals for the Federal Circuit, are dictates and interpretation of statutory authority which are to be “followed” by the Federal Agency which is empowered to administer the decision-making process of Federal Disability Retirement benefits.

Part of that application of law, for instance, is the “standard of proof” which must be applied, and in the case of all Federal Disability Retirement applications, the standard of proof to be applied is the “Preponderance of the Evidence” standard.  But what does that standard mean?  While entirely subjective at worst, and somewhat confusing at best, the individual words which make up the conceptual entirety provides some inkling of what must be understood.

Whether qualitatively or quantitatively, one must have a showing of “preponderance” — of more, better, or of greater persuasive effect than not.  Thus, whether by sheer volume of the evidence presented, or in the quality of the presentation, the persuasive impact must be accepted as more likely than not, by the Office of Personnel Management or, if appealed to the Merit Systems Protection Board, then by the Administrative Judge.

It is important to not only apply a standard, but to have an understanding of the standard.  For, only by understanding can one then determine its proper application.

Sincerely,

Robert R. McGill, Esquire

Federal Employee Medical Retirement: Describing One’s Medical Conditions

In preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS from the Office of Personnel Management, the conundrum which one faces immediately is to attempt to overcome the seeming inability of third parties (OPM Personnel included) to understand, comprehend, relate to, and ultimately “feel” a sense of empathy and compassion for the particular genre of medical conditions a Federal or Postal worker suffers from.  

While the entire administrative process of filing for Federal Disability Retirement benefits is based upon a legal criteria, with a standard of proof set by law — that of “preponderance of the evidence” (which, simply put, means that one must prove that something is “more likely” the case than not — a relatively low standard of proof in the potential options of applying various legal standards) — it nevertheless comes down to having a fellow human being review, analyze, assess and evaluate one’s Federal Disability Retirement application at the Office of Personnel Management.  

Yes, there is an applicable legal criteria which is applied by the Office of Personnel Management.  Yes, there is a set of conforming documentation which must be submitted.  Yes, there are Standard Forms to be completed.  Yet, as with all processes of review, no evaluative process can be merely characterized as an objective calculus; otherwise, the eligibility requirement of a Federal Disability Retirement application should be able to be determined by a computer program.  

While such a possibility may well occur in the not-too-distant future, for the present, an actual person (although this is sometimes questioned, also, based upon the unresponsiveness of OPM and the voicemail messages one encounters) at the Office of Personnel Management must review, evaluate, and determine the viability of a Federal Disability Retirement application.  As such, part of the key to the success of the administrative process must be in the descriptive narrative of one’s medical conditions, their impact upon one’s ability/inability to perform one or more of the essential elements of one’s job, and the qualitative and quantitative impact, direct or otherwise, upon one’s life.  

Here again, a cold, objective calculus should not be the only approach.  The “human factor” should be included — and to do so, one must extrapolate and apply all of the descriptive tools available in the English language.  

Sincerely,

Robert R. McGill, Esquire