OPM Disability Retirement Help: Different Standards

To overdress is almost always acceptable; to underdress — well, while it may be acceptable, you may have to endure being the subject of curiosity and quiet whispers of raised eyebrows.

There are different standards for every occasion, endeavor, event or engagement; some high, others low; a few enforced without exception while still maintaining a sense of decorum and the rest of them left to ignored apathy where anything goes.  Some private clubs seem to thrive upon the exclusivity of standards maintained so high that few can meet the exceptionalism applied, while those more accessible to the public allow for flagrant violations with nary a nod or a wink.

It is when the context becomes the content that eyebrows become raised, and the higher the brow the more exclusive the thinking.  For the rebel, it is always difficult to try and convey the notion that one must adapt and change with the circumstances — that standards are applied, and you must recognize those standards and act accordingly.

For Federal employees and U.S. Postal workers who suffer from a medical condition such that the standards set have now failed to be met — whether at the personal level or the professional — it might be time to consider filing for Federal Disability Retirement benefits, whether the Federal or Postal employee is under FERS, CSRS or CSRS Offset.

Whether through a recognition of the standards set for yourself — which is often higher than what is acceptable by others — or because you are beginning to get the hints that your agency or the Postal Facility has become dissatisfied with your work performance, your attendance or excessive use of sick leave; whatever the reason, the plain fact is that the medical condition itself is always the basis for determining the need to alter and modify one’s personal and professional standard.

Don’t be too hard on yourself.  The standard you used to apply before the onset of a medical condition should not be the same one that is applied to your present situation, and you should therefore consider that the standard of maintaining one’s health is the present priority exclusively, no matter what your Federal Agency or your Postal Facility tries to have you believe.

Consult with an attorney who specializes in Federal Disability Retirement Law, and determine whether you “meet the standards” to apply for Federal Disability Retirement benefits through the U.S. Office of Personnel Management.  They may be different than what you think.

Sincerely,

Robert R. McGill, Esquire

Medical Retirement for Federal Workers: The Changed Standard

Lawyers are trained to engage in linguistic gymnastics; that is precisely why Plato railed against rhetoricians of his day, as they used language to distort the fullness of being (as Heidegger would say).  For, the malleability of language allows for a spectrum of purposive and mischievous play upon words; only an abiding sense of integrity in the face of a world which has abandoned parameters and boundaries of what constitutes “fair play” in the arena of linguistic word games, would save the original foundation of the correspondence theory of truth.

In this postmodern world where objective truth can no longer be argued for, subtlety in playing a language game is no longer necessary; one can simply, deliberately and without conscience switch one word for another, and maintain a straight face.

So, in a Federal or Postal Disability Retirement case, when the U.S. Office of Personnel Management inserts words which clearly do not reflect the legal standard as presently existing, what does one do?  When the standard is raised to require “disability which precludes you from the workplace”, or evidence of a medical condition which is “compelling”, how does one respond?

Such unwarranted and baseless legal applications are inserted in many denials from the U.S. Office of Personnel Management, requiring a Request for Reconsideration or an appeal to the Merit Systems Protection Board.  In the end, in order to properly respond, one must first recognize the malleability of language; then to identify the proper legal standard to be applied; then to selectively address such improper legal standards.

In a Federal Disability Retirement case, whether under FERS or CSRS, the ultimate problem is that one is dealing with a Leviathan of an agency — the U.S. Office of Personnel Management — and one which has the power to engage in rhetorical flourishes with unfettered abandon.

Sincerely,

Robert R. McGill, Esquire

Federal Employee’s Disability Retirement: The Non-standard Approach to Standard Forms

Standard Forms are created, produced and promulgated precisely for their stated and intended purpose:  to streamline and conventionalize (yes, that is really a proper word, and spellcheck did not put a red line beneath it) the formatted receipt of information by an agency of the Federal Government.  Without Standard Forms, there would be no confining methodology of what to say, how to say it, and how much to say it.

The theory behind standard government forms is simple:  By providing the space, the questions and the apparent limitations, ease of processing will be expedited.

Of course, in pragmatic terms, the reality behind the theory is that Standard Forms create an intended limitation on space, as well as the content of what a person states or desires to state.  Yet, by self-confining the answers and information provided, the applicant for Federal Disability Retirement is essentially depending upon government lawyers to properly interpret what the statute for eligibility for Federal Disability Retirement requires.

While staying somewhat within the confines of what the Standard Forms request is a “good” thing (for Federal Disability Retirement purposes, SF 3107 series for FERS applicants; SF 2801 series for CSRS applicants; SF 3112A, SF 3112B, SF 3112C, SF 3112D, and SF 3112E for both FERS and CSRS applicants), it should not limit or otherwise prevent the submission of relevant information.  “Relevancy”, of course, is a relative term, and should be noted and applied by those who understand the statutory underpinnings of the legal requirements for a successful Federal Disability Retirement application.

Ultimately, one should approach the standardization of the administrative process called “Federal Disability Retirement” as merely a piece of the larger puzzle, and not be precluded from submitting non-standardized information in an effort to prevail in the preparation, formulation and filing of a Federal Disability Retirement application, whether under FERS or CSRS, from the U.S. Office of Personnel Management.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement for Federal and USPS Workers: Standards

The existence of a standard constitutes an irrelevancy if the application of it is based upon an unknowable, incalculable methodology.  Standards represent a paradigm which, if implemented, provide for stability and consistency, precisely because one can rely upon the same application in all instances, and indeed, that is what is often defined as “fairness”.

Thus, in sports — if the referee makes all calls based upon a known standard, there is very little to argue with respect to the “rules”; one may, of course, challenge the interpretation of the “facts” and charge that the referee is blind and did not see the play as reality reflected; but no one can argue the minutiae of the standard itself.  In society, and in a civilization governed by rules and accepted procedures of administration, if a standard is disagreed upon, then a democratic method of change is normally considered an appropriate methodology of redefining the lines previously demarcated by the “old” standard.

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 assumed that the standard which would constitute “fair play” will be one of “preponderance of the evidence”, but the actual implementation of such a legal standard will necessarily depend upon whether the Case Worker at OPM actually understands what that standard means.

It is, ultimately, a low civil “bar” to meet; and when a denial is rendered, the language contained within the denial will often reveal the extent of comprehension on the part of the OPM Case Worker.  Pointing a misapplication of the standard is sometimes a useful tool in taking the Federal Disability Retirement case to the next level — the Reconsideration Stage of the process — but unduly focusing upon the mistakes of the previous Case Worker is often a waste of time.

Balance is the key; application of the correct standard is vital to the working efficiency of a bureaucracy; pointing out a misapplication is why attorneys exist.  They are, ultimately, technicians of written standards.

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

OPM Disability Retirement: Remembering What “Supportive” Means

Over time, one’s memory and historical perspective becomes clouded and obscured.  In preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, there is obviously a long and complex history of changes, amendments and refinements to the aggregate compendium of that which constitutes the totality of “the law” governing Federal Disability Retirement benefits.

Thus, since the initial inception of the enactment of statutory authority granting the U.S. Office of Personnel Management authority to approve Federal Disability Retirement benefits under CSRS (and later under FERS), there has been an evolution of statutory amendments, regulatory clarifications, case-law expansion, contraction and clarifications — the composite of which constitutes “the law” governing Federal Disability Retirement applications whether under FERS or CSRS.

Part of the evolutionary process includes what is termed “supportive” documentation or evidence, such as an Agency’s determination that the Federal or Postal employee cannot be accommodated; the Flight Surgeon’s decertification of an Air Traffic Controller’s medical clearance; a Law Enforcement agency’s conclusions that a Federal Law Enforcement Officer is unable to meet the physical requirements of his or her position; and many other agency determinations which “support” a Federal Disability Retirement application.  But “supportive” does not mean “primary”, and the Federal or Postal worker must always remember that such ancillary evidence must be in addition to the primary evidence submitted in a Federal Disability Retirement application.

Don’t mistake the support evidence as replacing the essential evidentiary component of a Federal Disability Retirement application, whether under FERS or CSRS. The primary evidence must always come first — both by definition, as well as by statutory requirement.

Sincerely,

Robert R. McGill, Esquire

Postal and Federal Disability Retirement: The Inherent Complexities

It is often asked why filing for Federal Disability Retirement under FERS or CSRS is more complex, and therefor often more difficult to obtain, than (for example) Social Security Disability, or even Federal Worker’s Comp.  The simple answer is that one cannot compare apples and oranges (to quote an oft-used metaphor), but the greater inherent complexity of answering such a question involves more space than can be allotted here.

Social Security Disability, of course, has a higher standard of eligibility.  In abbreviated explanation, this means that one must essentially be “totally disabled” in order to qualify for Social Security Disability, as opposed to the “lower” legal standard of being “unable to perform one or more of the essential elements of one’s job”.  Thus, Social Security Disability cuts a wider swathe, and is generally considered to require a more onerous standard, and the resulting benefit reflects that — by allowing for restrictive ability to earn outside income, etc.  

 Worker’s Comp (OWCP, FECA/Department of Labor) is also complex in its own way, precisely because it requires a showing of occupational connection, or that the injury or medical condition was “on the job” or somehow caused by the job, the workplace, etc.  Then, its reliance upon percentage of disability, and the fact that it is not a retirement system, but a temporary mode of compensation in attempting to return the Federal or Postal Worker back to work, further contains multiple complex issues.  

Often, when a law attempts to particularize a benefit — as in Federal Disability Retirement — by focusing narrowly upon an issue (e.g., being unable to perform one or more of the essential elements of one’s particular kind of job, or any similar job), such a narrow focus creates an inherent complexity all on its own. Complexity of an issue requires a careful and studied approach; to conquer an issue, it is important to expend a great amount of time reflecting upon and scrutinizing the issue. It is only upon understanding an issue thoroughly that the complexity begins to unravel; and only then can one begin to proceed to prepare, formulate and file for Federal Disability Retirement benefits under FERS or CSRS.

Sincerely, Robert R. McGill, Esquire

Federal and Postal Disability Retirement: Applying the Legal Standard

In preparing, formulating and filing a Federal Disability Retirement application with the Office of Personnel Management, it is important to understand the legal criteria of “preponderance of the evidence”, to attempt to meet the legal criteria; to state and argue that the legal criteria has been met, and to reiterate and show how the legal criteria has been met.

Thus, as the Office of Personnel Management is a bureaucracy with multiple levels replete with clerical and administrative staff, it is important to present, to show, to reiterate, and to affirm:  the point to get across must be established in a succinct, effective, efficient manner, but it must be firmly established.

“Preponderance of the evidence” can be quite subjective, but within the context of such subjectivity, it encompasses the conceptual analogies of:  X is more likely than not; the quantitative weight of the evidence shows that the burden of proof has been met; the qualitative whole has proven that one is entitled to Federal Disability Retirement benefits; the compendium of evidence, both medical and supporting, shows that Mr. Y’s medical condition does indeed prevent him from performing one or more of the essential elements of his job; and similar conclusions to be reached as a result of the entirety of the evidence presented.

Of these analogies noted (which is not meant to be an exhaustive list, but merely an attempt to illustrate the meaning of the concept of “preponderance of the evidence”), the one which is most dangerous for people to embrace, is the “quantitative weight” of evidence.  For, ultimately, gathering a thick stack of medical documentation is the easiest way to put together a Federal Disability Retirement application, but the least effective.  And in the end, it is effectiveness which we seek, and not ease of completion.

Sincerely,

Robert R. McGill, Attorney

OPM Disability Retirement: “It May Sound Good”

There is the statutory legal criteria which is mandated by law, by case-law, and by regulatory dictum as to the proper application of review in making a determination on a Federal Disability Retirement application, whether under FERS or CSRS.  Yet, the question is whether or not the Office of Personnel Management has applied the proper legal criteria in making its determination, and the answer to such a question can only be evaluated based upon the language which is utilized by OPM in its denial letter. 

An approval letter issued by the Office of Personnel Management is entirely unrevealing, precisely because it is simply a template letter advising the approved Federal Disability Retirement annuitant of the next steps to follow.  However, when a denial letter is issued by the Office of Personnel Management, often the Claims Representative will insert language which “sounds good” and proper, and even convincing — but ultimately, wrong as far as the proper application of the law is concerned.  For example, OPM may assert with unequivocal brevity that there lacks “compelling medical evidence” in the Federal Disability Retirement application.  “Compelling” is not a legal criteria required by statute, case-law, or regulatory dictum.  As such, it is a meaningless word-usage.

Moreover, it is harmful to a case because it means that OPM applied a standard of review which is nowhere found in any statute.  Further, it gives an appearance of authenticity and authoritative credibility where none exists.  What to do about it?  It needs to be addressed and pointed out — but diplomatically.  Diplomacy is nothing more than a forceful rebuttal clothed in the finery of courtesy, but it is a necessary ingredient in establishing the proper tone and tenor of a response to OPM.

Sincerely,

Robert R. McGill, Esquire