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

Disability Retirement for Federal Workers: Undue Focus upon Minutiae

It is like the story of the man who rushes in breathlessly and declaratively warns others of the impending tornado, and with only minutes to spare, he is stopped and asked, “But will we still be able to watch our evening shows?”  The focus upon relevant details; of the “larger picture“; of logical and sequential sets of facts, as opposed to getting irrelevant information correctly stated, is often a problem in writing effectively.

The ability to use discretionary choices in separating factually important descriptions from those which are tertiary at best — will result in having the reader focus upon the essential aspects of one’s presentation, in any context or forum.

In preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, it is vitally important to separate and bifurcate that which is primary in importance, that which is secondarily of relevance, and those factual minutiae which, even if left out, will make little or no difference to the substantive content of a Federal Disability Retirement application.

Often, Federal and Postal employees who suffer from severe psychiatric conditions will unduly focus upon minutiae which, in the context of their medical conditions, are exponentially quantified in magnified importance beyond reason or rationale.  One must understand that such is the very nature of the psychiatric condition itself; but recognizing it as such, and trusting in the wise counsel and advice of one’s attorney, is the best first step in making sure that one’s Federal Disability Retirement application will have a fighting chance for an approval.

Sincerely,

Robert R. McGill, Esquire

Federal Worker Disability Retirement: Discretionary Extraction

In preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, there is often the question of whether X should be included, or Y should be left out.  Whether certain elements, issues, substantive descriptions, etc., should be included, excluded, extracted or otherwise inserted, largely falls into discretionary decision-making; sometimes, however, personal or professional discretion should not be the guiding criteria; rather, the compelling necessity directed by the legal requirements should dictate the decision itself.

Making such decisions often fall into three basic categories:  Substantive; ancillary; an admixture of the first and second.  Obviously, “which” medical conditions should be included will normally fall into the substantive category; the “history” of the medical condition, the circumstances under which the medical condition came about, and certain medical conditions which one might suffer from, but which have little or no impact upon one’s ability/inability to perform the essential elements of one’s job, might be considered ancillary; and lastly, the admixture of the two — of agency-induced issues which may have resulted in an EEO action; stress-related conditions from a hostile work environment:  these must be considered carefully, and should rarely be included in a Federal Disability Retirement application.

Ultimately, the guiding principle should be:  Don’t muddy the waters.  But the true guide should always be “the law”, and what purports to uphold that which proves by a preponderance of the evidence a Federal Disability Retirement application.

Sincerely,

Robert R. McGill, Esquire

Postal and Federal Disability Retirement: The Use of Percentage Designations

The Department of Veterans Affairs does it; in obtaining a scheduled award from the Officer of Workers’ Compensation Programs, administered under the Federal Employees’ Compensation Act (FECA), the amount determined is based upon it; and so it is understandable that confusions may arise as to its relevance, import and various applicable uses.

Disability ratings represent an attempt to quantify the extent of one’s medical condition, injury, or loss of limb or body mobility, flexion, ability to use, etc.  Such attempt at quantification, no matter what mathematical calculus or methodology employed, must by necessity involve a level of subjectivity; for any such attempt is pre-determined by the criteria which is applied, and any such criteria which purports to apply universally will be unable to accommodate the uniqueness of an individualized case.

In a FERS or CSRS Disability Retirement case, the benefit provided is a flat rate, and is set by statute.  It does not increase or decrease based upon a percentage assignation of a medical disability.  Similarly, in Social Security Disability, the amount of the annuity received does not change because of an increase in percentage.

Whether one can or should use the assigned percentage rating from the VA or from OWCP, in proving or attempting to prove eligibility in FERS or CSRS Disability Retirement cases, is a matter of discretion.  The amount of the disability rating; whether the gross number is a combination of fairly insignificant fractured percentages; the substantive discussion justifying each number, etc. — all of those factors must be taken into consideration before using it in a Federal Disability Retirement application.

Numbers alone rarely mean anything; 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 not the numbers, but the words which support them, which will make the difference.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Workers: Discretion, “What Ifs”, Etc.

The anxiety and angst which accompanies the preparation, formulation and filing of a Federal Disability Retirement application under FERS or CSRS, from the U.S. Office of Personnel Management, is on the one hand understandable, and yet, because it is an administrative process which may potentially involve multiple stages, and require investment of an extraordinary amount of time, and because it is requires a rationally-based approach in meeting the legal criteria for approval, it must be viewed and approached with a quietude of professionalism.

There are obviously times when the Statute of Limitations is about to impose some restrictive encroachment of formulation, and thus one must respond appropriately.  And, much of the decision-making process involved in whether to attach X-document, or to include Y-statement, is a discretionary matter — one which should often be left to an OPM Disability Attorney who has had some prior experience in the matter.

But the “what ifs”, as in, “What if I say A” as opposed to “having said B” is something which should be avoided.  Obsessing over singular statements — even if it is true that a denial of a Federal Disability Retirement application could potentially focus upon a statement, characterized in a wrong manner, or taken out of context (as OPM often does) — is normally unproductive.

While most “mistakes” in a Federal Disability Retirement application can be corrected, explained or expanded upon into obsolescence, one thing which cannot be accomplished is to put artificial blinders on OPM in the event that something is stated or submitted which otherwise should not have.  Even if one were to refile at a later date, once a CSA Number is assigned to a case, the U.S. Office of Personnel Management maintains the original documentation which was filed with their office.

Sincerely,

Robert R. McGill, Esquire

Federal Employee Disability Retirement: Discretionary Decisions

In preparing, formulating and filing for Federal Disability Retirement benefits under FERS or CSRS, there are obviously the “basics” which one must submit, in order to meet the legal standard of proof of preponderance of the evidence.  

Thus, submitting “adequate” medical documentation which formulates a nexus between the medical condition upon which the Federal Disability Retirement application is based, and the essential elements of one’s job; writing the descriptive narrative to complete the Applicant’s Statement of Disability (SF 3112A), and filling out the other standard forms in order to meet the minimum requirements, are deemed “non-discretionary”, in that one does not have the choice of filing such paperwork  — it is a requirement.  

However, certain other documentation can be designated and categorized as “discretionary” —  whether to include certain medical conditions, and therefore medical documentation which bears upon the particular medical condition; whether to include paperwork from one’s OWCP, Department of Labor filing; Veteran’s Administration ratings, findings, medical documentation; Social Security Disability paperwork; additional statements from co-workers; Private Disability Insurance paperwork, etc.  

“Discretion” implies freedom to act or not act, but the problem will often arise, “In what context”?  Discretion is a wonderful, liberating position to be in; acting effectively in a discretionary manner requires research, and knowing the relevant criteria to apply in making a proper decision; and an understanding of the laws governing Federal Disability Retirement in making the “right” discretionary decision.  

Using discretion in making discretionary decisions is the key to obtaining a positive discretionary determination from the Office of Personnel Management.

Sincerely,

Robert R. McGill, Esquire