Postal and Federal Disability Retirement: The Independence of Each Program

The disparate nature of each Federal program, with little to no intersecting coordination amongst them (with the exception of SSDI and FERS Disability Retirement benefits in the coordination of payments upon approval of each) betrays the unplanned, thoughtless creation of each program, as well as a sense that each agency wants to maintain its feudal control and assertion of independent power.

That perhaps explains, in part, why each program ignores the extent of persuasive authority the approval of another program should logically have, upon an approval and acceptance by the “other” program.  Does it make sense that being granted “unemployability” status under the Department of Veterans Affairs ascription of percentage disability ratings would only have a nominal impact upon a FERS Disability Retirement application?  Or that an SSDI approval would have, at best, a persuasive effect upon a FERS Disability Retirement?

It is somewhat more understandable that a case accepted by OWCP/Department of Labor would have minimal impact upon a FERS or CSRS Disability Retirement application, precisely because the former is set up as a program of rehabilitation in an effort to return the Federal or Postal employee back to his or her job.

The only true “coordination” of benefits occurs between SSDI and FERS — and that, only if both are approved, and payments are received concurrently; but even then, there are often overpayment problems, lack of the left hand knowing what the right hand is doing, etc.

Thus Coordination and intersection between departments, agencies and various programs rarely occurs.  Agencies tend to want to remain independent.

Such lack of coordination, however, does not mean that the FERS or CSRS Federal or Postal employee should not force a legal argument upon OPM when a significant finding is made by another agency or program.  For, in the end, it may not be the U.S. Office of Personnel Management which listens, but an administrative judge at the MSPB, or a 3-judge panel on the Federal Circuit Court of Appeals; in which case, a precedent will have been set, for all to (hopefully) follow.

Sincerely,

Robert R. McGill, Esquire

Postal and Federal Disability Retirement: The Efficacy of an Argument

If a security system is never triggered, can one conclude that it has been effective?  Is the failure of a system more telling than its lack of use?  Can the negation of a fact be used to prove its existence and the validity of a theoretical construct?  Can one argue, See — X did not occur; therefore Y must have occurred?  In terms of pure propositional logic and its internal system of validity, one can conclude that certain logical constructs are on their face invalid and contain fallacies.

This was one of Wittgenstein’s points concerning human language games:  the very self-contained artifice of the universe of meaning possesses no reflective correspondence to the physical world; and, in today’s parallel universe of the Internet, Facebook, Twitter, emails, etc., the technological artifice which encapsulates so much of our lives only serves to exponentially magnify such lack of corresponding significance.

In making legal arguments in an OPM Disability Retirement application, whether under FERS or CSRS, it is often important to understand the context within which the legal argument is being made.  One never knows whether, and to what extent, any particular legal argument is effective; and sometimes all that can be made is the pretext of the argument, and to leave the substantive impact for future application.

For example, does the fact that a person has received a “proposed removal” have the same impact as one who has in fact been removed for his or her medical inability to perform one’s job?  Or, similarly, does a person who receives a VA rating determination of “unemployability” have the same impact as one who is allocated with a 90% disability rating, arrived at through various lesser ratings and combinations thereof?

The effectiveness of any argument will depend upon the level of persuasion employed; the level of persuasion will be contingent upon the validity of the sequential connections of often independent logical statements; and the force of a conclusion will be determined by the strength of its weakest link.  If an argument of negation must be employed, take care to do so by linking it to an undeniable fact.

Sincerely, Robert R. McGill, Esquire

Postal and Federal Disability Retirement: Sparing the Legal Argument

In preparing, formulating, and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, there are multiple discretionary decisions to make.  By “discretionary decision“, is meant that there may be differing priorities of values which must be placed in the very process of deciding whether or not to include or exclude a medical document, legal argument, etc., and the prioritizing of the value placed upon such evidence is what will determine the decision itself.  There may ultimately be no “correct” decision on the matter, as opposed to an incorrect one.

Further, one may never know (or care, once an approval of a Federal Disability Retirement application is received) whether or not the Office of Personnel Management made a positive or adverse decision on the Federal Disability Retirement application (whichever the case may be at any given stage of the administrative process) based upon the same priority of values assessed upon the decision itself.

For example, sometimes the evidence itself — whether medical or non-medical documentary evidence — may be compelling enough in and of itself, that making a long and tedious legal argument may in fact detract from the prima facie strength of the evidence itself.  Or, it may be that a short sentence or annotation in a medical document may be so significant that a particular legal argument, however long and involved that may be, should be stated, and stated at length, and argued boldly.

Discretion dictates a restraining of a reactionary response; sometimes, the shorter the statement, the more effective is the presentation.  Length and verbosity alone do not constitute effectiveness in preparing, formulating and filing for Federal Disability Retirement benefits from OPM.

Sincerely,

Robert R. McGill, Esquire

Federal Worker Disability Retirement: The Applicability of the Legal Argument

If there is a legal argument to be made, make sure that it is applicable; further, it is important to distinguish between the necessity of making a legal argument, as opposed to allowing the facts to speak for themselves, and the medical reports and records to establish the necessary proof by a preponderance of the evidence.

In administrative law, and specifically in preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, the “applicant” (the one filing for Federal Disability Retirement benefits, whether as a Postal Worker or as a non-Postal, Federal Worker) has the advantage of thoughtfully compiling the material, documentation, legal memorandum, narrative reports, and the entire compendium of proof necessary to meet the legal requirements of eligibility, and therefore entitlement, to Federal Disability Retirement benefits.

It is essentially a “paper presentation” to the Office of Personnel Management.  As such — because the applicant is able to take the necessary time and effort at the front-end of the process to prepare a compelling case, it is important to “pick and choose” the viable legal arguments to be made.

Sometimes, facts can speak for themselves, and there need not necessarily be a legal case to support the facts.  Other times, the medical report and records can meet the legal requirements, without citing a specific statute or case-law.  Then, there are applicable legal arguments which must, and should, be made, if merely because one should assume that OPM will not recognize the legal requirements unless aggressively informed about it.

In making such legal arguments, however, don’t undermine your own case unless you know what you are talking about.  Better to remain silent on matters not known, lest you reveal your lack of knowledge on the matter.

Sincerely,

Robert R. McGill, Esquire

Federal Disability Retirement: Formulating an Effective SF 3112A

The “heart of it all” is…   The medical report will provide the substantive basis; a supervisor’s statement may or may not be helpful or useful at all; legal arguments will certainly place the viability of the application for Federal Disability Retirement into its proper context and arguments which touch upon the legal basis will inevitably have their weight, impact and effect upon whether one has met by a preponderance of the evidence the legal criteria required to be eligible and entitled.  All of that aside, the SF 3112A — the Applicant’s Statement of Disability — is where the heart of the matter resides in preparing, formulating, and filing a Federal Disability Retirement application under FERS or CSRS. 

If a Federal or Postal employee is unsure of what to state, how to state it, or how much to reveal and state, that becomes a problem.  For, ultimately, the proper balance must be stricken — between that which is relevant as opposed to superfluous; between that which is substantive as opposed to self-defeating; and between that which is informational, as opposed to compelling.  Formulation takes thought and reflection.  Yes, the SF 3112A — the Applicant’s Statement of Disability — is the heart of it all.

Sincerely,

Robert R. McGill, Esquire

Federal and Postal Disability Retirement: Objectivity & Legal Arguments

Having written about the importance of maintaining a level of objectivity in preparing, formulating and submitting a Federal Disability Retirement application under FERS or CSRS, and further, about the necessary component of a legal argument and references to prior legal citations, it is of note that the two intersect in significant ways.  Because the law, statutes, cases, etc., are intended to apply to everyone, it is meant to be a ‘universal principle’.  Whether one agrees with the law or not is beside the point, and ultimately irrelevant.  

Further, one must make a distinction between using the law as either a shield or a sword, and for a Federal or Postal employee who is considering citing the legal precedents in filing a Federal Disability Retirement application, it is important to utilize the law, case-law and statutes as a ‘sword’ in order to persuade the Office of Personnel Management to approve your case.  

The two together — of maintaining a level of objectivity in preparing a Federal Disability Retirement application by focusing upon the medical reports & records; citing case-law and legal precedents to argue one’s case in an affirmative manner — form a powerful and compelling basis in any Federal Disability Retirement application.  The intersection between the two — objectivity and legal arguments — direct the tone, tenor, and foundation of any Federal Disability Retirement application.

Sincerely,

Robert R. McGill, Esquire

Federal and Postal Disability Retirement: Other Processes

Does it make a difference to list that one’s Federal Disability Retirement case is also accepted by OWCP/Department of Labor as an “accepted case”?  Or that one has been deemed 90% disabled by the Veterans Administration — or, more to the point, that one has received a 100% unemployability rating?  How about having been approved for SSDI?  Aren’t these all “indicators” of a medical disability?  

The short, uncomplicated answer is that, yes, such acceptance and approval by other agencies and sources can be indicators of a medical disability.  The longer, more complicated issue, however, is how to divulge and inform the Office of Personnel Management about the “other” Agency, the acceptance, and the relevance of what an approval or an acceptance by another agency should mean to one’s Federal Disability Retirement application.  

Unfortunately, there is no generic or universal rule concerning OWCP-accepted claims, SSDI approvals, VA determinations, etc., with respect to their relevance to an OPM Disability Retirement application.  Each case is unique; there is case-law which is applicable to each one, independent of the other; and because the criteria which governs each is different from any other, they must be dealt with in an independent manner.  This is not a reflection upon the individual filing for Federal Disability Retirement benefits under FERS or CSRS; this is more a reflection upon the asserted independence of each Agency from each other.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement for Federal and Postal Employees: Legal Citations

Some question whether or not legal citations are necessary in filing a Federal or Postal Disability Retirement application under FERS or CSRS.  Certainly, as an administrative process in applying for a benefit from the Office of Personnel Management, there are individuals who attempt to obtain the benefit of Federal or Postal Disability Retirement benefits without the representation or assistance of an Federal Disability Attorney, and such “self-represented” individuals rarely refer to legal authorities or citations in such an application.

Are legal citations — or references to legal authorities, statutes or case-laws — “necessary” when filing an application for Federal or Postal Disability Retirement benefits under FERS or CSRS?  If by “necessary” is meant, is it a requirement in order to be eligible for obtaining OPM Disability Retirement benefits, then the obvious answer is “no”.

However, the purpose in referring to legal authorities is quite simple, and logically based:  As the Office of Personnel Management is required to apply the legal criteria in determining one’s eligibility for Federal Disability Retirement benefits, it makes sense to support one’s application by citing the legal authorities which reinforce and explain the legal basis for eligibility.

As such, while citing legal authorities is not a necessary condition in applying for Federal Disability Retirement benefits, it may be a condition precedent which may need to be sufficiently satisfied in order to favorably “weight” the successful outcome which is sought after.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: The Imperfect Law

Law is an imperfect science; indeed, one could dispute the ascribing of law as a “science” at all, except in a generic, loose sense of the word.

Like the sciences, it is an observation and gathering of empirical evidence (“just the facts, please’); like science, it is an application of a hypothesis (proposing an applicable theory of law upon the gathered facts); and like science, the results of applying the hypothetical model upon the empirical evidence must take into account the factors of error, the possibilities of various elements which may impact upon a perfect study (i.e., the personalities and quirks of a jury or a judge, for example).

But that is where the resemblance between science and law end.

More often than not, the practice of law is nothing more than what Hume’s famous argument concerning causality entails:  repetitive observation of an event does not necessarily result in the same effect the next time around; it is merely experience which guides the observer to predictably conclude certain end-results.  To that extent, administrative law, and specifically Federal Disability Retirement law for Federal employees under FERS or CSRS is no different.

Law, as engaged in actively by an attorney of law, is the acute observation of the facts, the application of the proper hypothetical model, and the combining of both — with the exception of taking into account one’s experience, the experience of past cases, and making discretionary decisions based upon all of the facts and circumstances.

Sincerely,

Robert R. McGill, Esquire