FERS & CSRS Disability Retirement: Making the Legal Argument

Legal arguments are merely a subset of ordinary ones; as variations of the facetious quip goes, if the facts are not on the lawyer’s side, then he will argue the law; if the law is not, he will argue the facts; if neither, then he will attempt to confound and obfuscate both.

By sequence of logical argumentation, it is self-evident that “facts” must be the first order of presentation; then, persuasive discussions concerning those facts, forming and molding a given perspective (for there is surely a distinction to be made between that which “is” and that which “is seen” by a particular individual, bringing in the subjective component of interpretation and conveyance of information); and only after the facts have bespoken should persuasive efforts follow; and then, the legal argument to be made.

Thereafter, the question of how aggressive a legal argument; of pounding like a hammer, or the subtle tap of the constant but insistent drumbeat, guiding the listener with a roadmap as to why a decision should be made pursuant to persuasive force, or threats of further legal action.

For the Federal and Postal worker who is trying to have a Federal Disability Retirement application approved, the art of persuasion, the effective use of legal argumentation, and the delineation of factual roadmaps must be coordinated with the utmost of care.  Administrative processes are often replete with frustrating procedures to follow, and it is a dangerous endeavor to allow for one’s frustration to erupt when dealing with a bureaucracy which is rarely responsive, and normally unaffected by the most dire of circumstances.

Thus, in sequence of logical argumentation: The facts as portrayed in as objective a manner as possible; the interpretation of the facts, such that the subjective perspective is insightfully applied, but without the overuse of the “I’ or “me”; argumentation; then, and only then, the applicability of the law.

Federal Disability Retirement is a benefit offered to all Federal and Postal employees who meet the minimum eligibility requirements of time in Federal Service, age and a level of medical evidence which must be carefully and thoughtfully presented.

As such, for the Federal or Postal worker who intends on filing for the benefit of OPM Disability Retirement, whether under FERS, CSRS or CSRS-Offset, the art of factual and legal argumentation must be presented with persuasive force, often like the slow dripping of an unconstrained faucet, as opposed to the break of a dam.

Sincerely,

Robert R. McGill, Esquire

Federal Disability Retirement: The Dependence of Meaning

Wittgenstein believe that it was not possible to have a private language held by an individual alone; for, as language by definition is a means to communicate, any language which is kept in private from everyone else would be a meaningless tool.

Private, insular worlds are dependent upon their functioning upon the receipt by third parties to impart meaning and interaction; otherwise, left within the void and chasm of pure privacy, they remain nothing more than the slow drip of a distant echo of spring water deep within the hollows of an undiscovered cave.  For those of the rest of us who live and interact within a world of words, writings, and regulatory compendium of laws and statutes, the ability to convey meaning in a meaningful way is paramount for the successful progression of our every day lives.

For the Civilian Federal or Postal Worker who suffers from a medical condition, such that the medical condition prevents one from performing one or more of the essential elements of his or her Federal or Postal duties, conveying what one means becomes a critical exercise:  putting together an effective Federal Disability Retirement application to the U.S. Office of Personnel Management, whether under FERS or CSRS, in a manner which persuades and entitles, is the penultimate goal which must be accomplished.

How one gets from point A to point B; what material and evidence to compile and include; what legal arguments to bring up and point out; these are all elements which must be considered. Concurrently, the privacy of one’s medical conditions must be protected to the fullest; but that is where the compromise must be attained, between the private and insular world of necessity, and the public world of reality which must be encountered and engaged.

Sincerely,

Robert R. McGill, Esquire

Medical Retirement Benefits for US Government Employees: The Paradigm of Persuasion

In graduate school, the undersigned attorney once presented a paper on a comparative analysis involving a Chinese philosopher.  At the end of the presentation, the professor asked a question pointedly:  “Is there such a thing as Chinese philosophy?”

The question, of course, went straight to the traditional paradigm underpinning Western philosophical thought:  of logical analysis; of syllogistic, Aristotelian methodology; of, “If A, then B”, etc. — as opposed to short, concise, declarative statements illustrating history, community, context and wisdom.

In other words, the difference between persuasion as a methodology in a universal sense, applied across any and all cultural lines, as opposed to the micro-application of wisdom within a given community.  For, in either sense, it is ultimately wisdom after which we seek.

There is, indeed, a tradition in Western Philosophy, beginning with the Pre-Socratics, onward through Plato, Aristotle, the Medievals, to the present where deconstructionism has essentially inversely cannibalized philosophy, in which the issue of what constitutes a persuasive argument must be questioned.

Can a paternalistic declaration of wisdom prevail in a debate?  Is a mere assertion of truth enough to convince?  In any legal context, one must systematically present one’s case with facts and “the law”.

In preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, one must take care and follow the traditional rules of persuasive argumentation.  In a family, the rule of Mom and Dad may prevail; in a community, a Confucius-like paternalism may be effective; in the arena of law, one must take care and systematically present a persuasive, logically coherent argument.

Only by following in such a methodology of persuasion can one expect success in preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management.

Sincerely,

Robert R. McGill, Esquire

Medical Retirement for Federal Workers: Persuasion and Diatribes

Methods of argumentation require one to embrace a tripartite approach:  Regard for who the audience is; consideration of what the intended goal is; selection of the effective methodology of presentation.

Diatribes will often consider the first two points, while disregarding the third — for, the intended audience is the targeted person or group who must bear the vitriolic attack; the goal is to let loose a torrent of one’s beliefs and (in all likelihood) upset the recipient; but it is rarely an effective approach for any intended purpose other than to gratify one’s emotional turmoils.

Persuasion, on the other hand, must by necessity include the third element — for the very sign of success not only regards the intended audience and considers the goal of changing another’s mind; most importantly, it must do so in a subtle, quiet sort of way — by allowing for the recipient of the presentation to think that he or she is changing a perspective based upon one’s own volition, when in fact the presentation itself is the vehicle of the alteration.

It is this distinction between a diatribe and persuasion which one must keep in mind when preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS. The bull-in-a-china-shop approach in presenting one’s Federal Disability Retirement application before the U.S. Office of Personnel Management will rarely win them over; on the other hand, a carefully-crafted presentation based upon a streamlined narrative; upon medical evidence which is concise; and with legal arguments which are precise — leads to a methodology of persuasive impact.

Diatribes serve their self-centered purposes; persuasive argumentation allows for the unseen thread to pull the levers of effective results.  In the end, the short-term gratification of a diatribe will leave one hungry and dissatisfied, whereas the fruits of persuasion will always fulfill the needs of the audience, and the desire of the presenter.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Government Employees: Legal Arguments

Legal arguments represent a peculiar form of persuasive argumentation; by appealing to statutory authority, precedents as set by prior court cases and administrative legal opinions, as well as decisions rendered in previous decisions — the foundation of a legal argument rests upon the validity of that which occurred prior to one’s own case.

That is why, in making a legal argument, lawyers argue “by analogy” — via similarity of factual context, as a logical proposition:  X resulted in Y; the factual circumstances in A are similar to X; therefore, A should similarly result in Y.  It is not, in terms of pure syllogistic logic, a valid one to make; for the dissimilarities between A and X may well determine the outcome as to Y.

Further, familiarity with the underlying reasoning of a legal opinion is essential to making a valid legal argument.  That is why non-lawyers who attempt to cite case-law and legal authorities as a basis for their Federal Disability Retirement often fail, and fail miserably:  while it may be the right case-law to cite, the analogy may not fit the context.  In preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, it is not only important to create the nexus between one’s medical condition and the positional duties of the Federal or Postal job; moreover, it is essential to make the logical and legal argument in a persuasive, effective manner.

According to an Aristotelian approach, man is indeed a rational animal, and rationality is effectively pursued through a logical methodology; but what is not stated in such an approach, is that rationality and logic do not constitute the entirety of the universe of human persuasion; legal argumentation is merely one facet of the society within which we must live; in the context of a Federal Disability Retirement application, it may play a major part; and that is why citing the right case, making the proper analogy, and creating the logical nexus between facts and “the law”, is essential to a successful outcome in a Federal Disability Retirement application, whether under FERS or CSRS.

Sincerely,

Robert R. McGill, Esquire

Early Medical Retirement for Disabled Federal Workers: Persuasiveness

The ability to persuade requires two components:  One who utilizes the tools of persuasion; and a receptive audience, open to an alternative perspective, and willing to regard and consider the arguments of the first.  

Power is often the single most obstructive obstacle placed in the path of persuasion, precisely because it makes an individual, entity, organization or agency believe that it does not need to be persuaded to change course.  Watching news shows and political interviews is quite instructive in the loss of society’s ability to either listen, or to persuade.  The rule today is to talk, and as long as the monologue lasts, the opponent is given no opportunity to respond.  He who talks the most, and the loudest, wins the debate.  

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 recognize the mechanisms already in place, and to use them to one’s persuasive advantage.  

The Office of Personnel Management is the entity which must be persuaded.  Inasmuch as it is easier to approve a case, than to deny it and have it Reconsidered or appealed to the Merit Systems Protection Board, the approach must be one of:  What can be submitted to make your job easier, and to relieve you of your heavy caseload?  For one thing, a concise and streamlined Federal Disability Retirement packet.  For another, a Disability Retirement packet which is clearly proven.  And for a third, legal and other arguments which are simple but to the point.  

Meandering arguments and voluminous biographies, as well as diatribes of complaints, will not win the day.

Sincerely,

Robert R. McGill, Esquire

Postal and Federal Disability Retirement: More than a Story

Re-reading Anton Chekhov’s famous short story, “Grief”, is instructive in multiple ways — the effective use of limited dialogue; creating of word-pictures which set the tone of the story; the metaphorical use of language; and the answer to the question, What makes a particular aggregation of words effective in their linear combination?  It is a very short narration of events, even for a “short story”.  Yet, as a classic piece of literature, it stands alone in its powerful evocation of the plight of man:  the need to relate human suffering, in its proper manner, in a particular way — so as to relieve the sufferer from the very essence of his turmoil.  To whom it is told, of course, is not important; how it is stated, is the point of the story.

In preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, both the “to whom” and “how” are equally important, and that is the difference and distinction from fictional prose.  The audience in a Federal Disability Retirement application must always be kept in mind — a Federal Government bureaucrat, who has seen many Federal Disability Retirement applications, whether under FERS or CSRS.

Like the passengers to whom Iona Potapov attempted to relate his story, the Claims Specialist at OPM will have a calloused view of one’s Federal Disability Retirement application — not necessarily because of an inability to empathize, but because any singular Federal Disability Retirement application will be merely one of thousands to view, and after time, the conglomeration of words simply spill over one into another.  As such, “how” the narrative portion of one’s Federal Disability Retirement application is told, becomes all-important.  The type of prose, of course, is far different than Chekhov’s fictional account of the suffering of a man; but the metaphorical use of language should be invoked where applicable, all the while understanding that being concise and conservative in choosing the right words is the most effective way of communicating.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Government Employees: Language and Reality

In most circumstances of life, the chasm and divide between language and the reality which such language is meant to reflect, is wide and irreconcilable.  The problem is often that language over-states and overpowers reality.

When it comes to a medical condition, however, it is often the case that the opposite is true:  language is inadequate to effectively, properly, or sufficiently describe the severity, pain, extent and scope of the medical condition being suffered.  Language is meant as a tool; a conveyance in order to communicate an X as reflected in the world of Y.

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 close the expansive divide between the reality of one’s medical conditions and the words, ideas and concepts which are utilize in an attempt to communicate the experiential phenomena which one is undergoing.  Suffering; mental lapses; suicidal ideations; lethargy; chronic and diffuse pain; panic attacks; such conceptual paradigms must be sufficiently conveyed by the elasticity of language.

While sympathy and empathy are not required components to evoke in an Applicant’s Statement of Disability, it is a goal to strive for.  Yes, there is the legal criteria to attempt to meet in a Federal Disability Retirement application, and the objective assessment and evaluation of a Federal Disability Retirement application does not require that the Case Worker at OPM have any feelings of sympathy or empathy — but it often helps if the narrative form contains some emotive content of such evocation.

Sincerely,

Robert R. McGill, Esquire

FERS OPM Disability Retirement: Facts, Laws & Persuasive Argumentation

In preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS, it is important to distinguish between facts, laws, and persuasive argumentation, as well as the targeted audience to whom such distinguishing elements are being conveyed.

For the first two “stages” of the administrative retirement process, the Federal or Postal employee will be addressing personnel at the U.S. Office of Personnel Management.  This is merely at the “administrative”, or “agency” level of the process.

Thus, the initial review, analysis, and application of the legal criteria will be performed by a non-lawyer, and any application of a legal criteria to determine the eligibility of the Federal Disability Retirement application will be done in a rather mechanical manner.  By “mechanical manner” is merely meant that the criteria to be applied is merely an extrapolated generic form of interpretation, and will be applied by comparing the “list” of legal criteria against the submission of the Federal or Postal employee.

Whether there is sufficient justification in the medical report and records; whether the description of the Federal or Postal employee’s job comports with the official position description; whether the agency has offered an “accommodation“, and if so, in what form; whether a reassignment to another position at the same pay or grade was offered and declined — and other applicable criteria will be applied, analyzed and annotated by the OPM Representative.

If the Federal Disability Retirement application is denied at this initial stage of the process, then it will again be reviewed at the Reconsideration Stage of the process — assuming that the Federal or Postal employee files a timely Request for Reconsideration with the Office of Personnel Management.

It is at the next stage of the administrative process — an appeal to the Merit Systems Protection Board — that any legal argument will ultimately begin to carry significant and relevant weight.  For, at the MSPB, an Administrative Judge will review the entire file, and proceed to conduct a new hearing “de novo”, that is, “fresh” or “anew”, and weigh the evidence, the legal arguments, and determine the persuasive impact of either or both.

Sincerely,

Robert R. McGill, Esquire

 

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