Federal Employee Medical Retirement: Keeping it Simple

Simplicity merely covers the complexity behind the beauty of the uncomplicated.  Indeed, one only has to look upon an Apple product, or a modern automobile, to recognize the underlying complexities which went into the production of such simplicity.

In preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, there is often a desire to respond to an OPM denial by attempting to understanding the apparent ‘complexity’ of the denial.  By ‘apparent’ is meant the following:  Most, if not all, of OPM’s denials are regurgitated templates from thousands of previous denials, and quotations of alleged legalese notwithstanding, the basic components of a Federal Disability Retirement case do not change just because the language used attempts to complicate matters.

In the end, driving a technologically advanced automobile still requires hands on the steering wheel, and a foot on the gas pedal and the brake (hopefully, not both at the same time).  All the rest are simply “whistles and horns” to make it appear worth the price tag.

Sincerely,

Robert R. McGill, Esquire

Federal Disability Retirement: Surprise in the Universe of Reconsiderations

Until the science of Physics can implement the ability of molecular and particle transference technology (i.e., “Beam me up, Scotty”), there is little potential of resolving the Cartesian mind/body dualism (i.e., that French Philosopher Rene Descartes, who bifurcated the world between the material and the spiritual). But such dualism in philosophical terms does not mean that we can be at two places at one time; or even attempt to be “objective” when the subjective “I” is the very same person who is attempting to appear objective.

In Federal Disability Retirement law, when the U.S. Office of Personnel Management issues a denial letter, the customary response by the denied OPM applicant, whether a Postal Worker or a non-Postal Federal Worker, is that he or she is “surprised” by the initial denial because of the strength, completeness, and thoroughness of one’s Disability Retirement packet.  But that should be a given.

No one who files with OPM should do so without meeting the requisite foundations of thoroughness or completeness.  But this is where the problem is:  the very person who determines that a Federal Disability Retirement application is sufficient, is the same person who suffers from the very medical conditions of which the application speaks about.

The subjective/objective coalescence makes for a difficult mind/body dualism, in that the one who suffers from the medical condition can hardly assess and evaluate, in an objective manner, the strength of the Federal Disability Retirement application.

Thus, the Cartesian mind/body dualism lives on, and until Captain Kirk can guide us otherwise, such bifurcated dualism will continue to pervade all Federal Disability Retirement applications, whether under FERS or CSRS, and the denials which follow will still have the familiar response of, “Surprise!

Sincerely,

Robert R. McGill, Esquire

Federal Employee Medical Retirement: The Bureaucratized Process

One cannot expect any entity, organization, or group of individuals to reinvent the wheel for each product, service or response; streamlining and repetitive conformity of a product, issuance or completion of a case is the way of the world; it is how the Model T became a successful capitalistic venture; it is how China dominates the world of marketing.  But in the world of Due Process, one cannot formulate a mass production of effective advocacy without trampling upon the rights of an individual.

Thus, on both sides of the process of preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, each case must be responded to in accordance with the specific, unique facts as constrained by the individual circumstances.

Conversely, one should expect — and demand of the U.S. Office of Personnel Management — that something more than a mere template of a response should be issued, after a careful and thorough review of a Federal Disability Retirement application.

If a FERS or CSRS Disability Retirement application is approved by OPM, then of course one can expect merely a letter of approval which is identical to thousands of others.  If denied, however, the denial letter should reflect a careful, thorough and individualized letter, reflecting the scrutiny of one’s particular OPM Disability Retirement packet.

Anything less would be to trample upon one’s due process rights as a Federal or Postal employee.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Workers: Responding to OPM Templates

One can readily discern a template-based letter; it attempts to appear as if the denial is tailored to the particular set of circumstances and unique medical submissions of the Federal or Postal employee to whom the letter is addressed, but upon closer inspection, most of the language could to interchangeably utilized for anyone or everyone.

There may be a paragraph or two which quickly identifies or otherwise lists certain specific medical reports, with names of doctors and the dates of their reports; aside from such references, however, the rest is merely a template of language which is cut and pasted for purposes of justifying a denial.

Such is the administrative, bureaucratic approach of the U.S. Office of Personnel Management.  And, indeed, templates in and of themselves are not necessarily indicative of anything negative; for, as reinvention of the wheel should not be performed for each task engaged, so every Federal Disability Retirement application must meet a certain set of legal criteria, and to that extent they are “all the same”.  The problem in responding to a template-based denial from the U.S. Office of Personnel Management, however, is the disadvantage one is placed in for responding to such a Letter of Denial.  For, the template can contain multiple points which seemingly require a response, and which may appear overwhelming.

Don’t be fooled.  To address each and every point of contention is often to get mired into a level of minutiae which need not be engaged.  Take a wider view of things, and get some guidance and advice.

Sincerely,

Robert R. McGill, Esquire

Postal and Federal Disability Retirement: Denials

Denials come with an unexpected force and impact; for, in every Federal Disability Retirement case, there is the expectation that the application itself merits close scrutiny and a belief that a proper review will persuade the OPM trier of facts that the Federal Disability Retirement application should be approved.

Indeed, from the perspective of the applicant, who is suffering from the medical condition itself on a daily basis, it is often a reaction of disbelief and anger when a denial is issued by the U.S. Office of Personnel Management.  But one must understand that this administrative process identified as “Federal Disability Retirement” is one which is not an “entitlement”, but rather, an adversarial process where proof, argumentation and persistent appellate procedures must be invoked at every step of the way.

That is why, in preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, one needs to always prepare a case as if it will ultimately go to the U.S. Merit Systems Protection Board.

Further, it is understandably disappointing to read an OPM denial and find that the OPM case worker does not even mention or refer to much of the substantive medical documentation submitted, but instead blindly (and generically) issues a template of tired old phrases, such as, “You did not meet the legal criteria“; “The evidence did not show that…”

With hundreds of cases assigned to each OPM Case Worker, one must understand that denials are rarely personal; but in responding to a denial from OPM, one must be diligent, forceful, and approach it with the use of all legal tools available.

Sincerely,

Robert R. McGill, Esquire

Federal Worker Disability Retirement: The Disappointment of a Denial

A Denial Letter from the U.S. Office of Personnel Management quashes the Federal or Postal employee’s plans for the future, which includes an ability to secure a stream of income, to have the recuperative period in which to recover from a progressively deteriorating medical condition, and generally to be able to “move on” in life.  As all rejections have a negative impact upon a person — in terms of emotional, psychological as well as practical consequences — so a denial letter from OPM is seen as a rejection of a compendium of submitted proof concerning a Federal Disability Retirement application.

In preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, one becomes completely and totally involved in the gathering, compiling and submission of the documentation, statements, narratives and records in order to “prove” that one is eligible for Federal Disability Retirement benefits.

Such totality of involvement often betrays an ability to remain objective in a case; for, by definition, self-involvement diminishes the ability of an individual to be able to step outside of one’s self, and to evaluate the effectiveness of an endeavor apart from the subjective perspective which everyone brings to bear upon a project, issue, work product, etc. But objectivity is important, because an uninvolved, detached assessment of a Federal Disability Retirement application evaluates the viability of a Federal Disability Retirement packet without the concerns already indicated — those emotional, psychological and practical consequences which form a part of a person’s being.  That is why having an advocate or legal representation is an integral part of preparing, formulating and filing for Federal Disability Retirement benefits.

Sincerely,

Robert R. McGill, Esquire

Medical Retirement for Federal Workers: Rationality Still Exists

One may well disagrees with the U.S. Office of Personnel Management on its decision to deny a Federal Disability Retirement application, and yet find a rational basis for its denial.  Indeed, the fact that OPM may offer some rationality to its denial, does not mean that they are correct in their decision.  Often, there is a misunderstanding as to what “rational” behavior consists of.

On a recent Sunday morning talk show, a couple of political pundits were proposing the idea that certain hard-line regimes were not acting “rationally”.  The problem with such an analysis is that one assumes that if an individual or a country fails to act within certain universally-accepted normative behavior, that such actions constitute “irrational” conduct.  That is simply not true.

First of all, rationality — which finds its foundation in logic, whether propositional or syllogistic — depends upon the major and minor premises advanced.  Thus, if the major premise entails a person or country that cares for the welfare of his neighbor or its citizenry, then the logical conclusion may well be one which encapsulates rationality — of acting to protect its people, to safeguard human rights, etc.  On the other hand, if the major premise begins with the primary assertion of retaining authority and absolute power, then the conclusion would involve shooting or massacring its countrymen.  The latter logical trail is no less “rational” than the former. Such a mistake in defining and understanding the concept of “rationality” is often found in all areas of life.

Thus, in preparing, formulating and filing for Federal Disability Retirement benefits, whether under FERS or CSRS, the fact that there has been evidence of “irrational” behavior on the part of those parties involved in the administrative process, should not result in a conclusion that the process is “arbitrary” or dependent upon some non-legal criteria.

Ultimately, all human endeavors embrace some semblance of rationality.  While one may disagree with the analytical thought-processes of the U.S. Office of Personnel Management, which often strays far beyond what the law requires and allows for, nevertheless, one can recognize the rational analytical procedures used in every denial of a Federal Disability Retirement application, whether under FERS or CSRS — albeit, one in which radical jumps from premise-to-conclusion with gaping chasms of generous implications may have to be provided, in order to be able to say that such argumentation incorporated a rational basis of explanatory analysis.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Medical Disability Retirement: Legal Sufficiency Test

In preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS, one is required to meet the legal sufficiency of the eligibility criteria as set forth by statute, expanded by regulations and clarified by cases which have come before Administrative Judges at the Merit Systems Protection Board.  

Whether one meets the legal sufficiency test in the presentation of medical and other supporting evidence, is the area of disputable territory, which is why the entirety of the administrative process has been put in place.  From the perspective of the Office of Personnel Management, they are mandated to review each case and make a determination as to legal sufficiency.  Often, however, they are not concerned with, ignore, or otherwise remain oblivious to, the legal standard of proof, of whether the applicable criteria has been met by a standard of “preponderance of the evidence”. Indeed, in many denial letters, they have instead indicated a much high standard of review, including whether the evidence is “compelling”, or whether the medical condition “prevents the Federal or Postal employee from coming to work altogether”.  

Unfortunately, the first two (2) stages of the process — the initial application stage, then the Reconsideration Stage — is reviewed by the Office of Personnel Management, with the potential for mis-application of the proper burden of proof.  

Legal sufficiency is not a standard which is applied until it enters into the “legal arena” — that of the Merit Systems Protection Board before an Administrative Judge.  Because of this, it is often a good idea to cite legal opinions in order to “apprise” the Office of Personnel Management of the applicable legal criteria, and to remind them of what extent of evidence meets the legal sufficiency test.

Sincerely,

Robert R. McGill, Esquire

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

Federal and Postal Disability Retirement: The Initial, Reactive Response

When a denial is received at the first stage of a Federal Disability Retirement application process, the initial, reactive response is often one of two avenues, both of which are the wrong paths to venture down:  either a Federal or Postal employee immediately writes an angry, emotional response or he/she gives up and decides that the statements made, the reasons given, etc., in the denial letter from the Office of Personnel Management are too powerful and overwhelming to overcome.  

Both responsive avenues constitute the wrong approach; neither responsive approach reflects the true state of the case.  

While there may be cases where the applicant has failed to make even a minimal attempt at meeting the burden of proof in a Federal Disability Retirement application, such a case is one in which the undersigned attorney has never encountered.  For, there is a presumption (a truthful one, I believe) that filing for Federal Disability Retirement benefits is never out of choice, but always out of necessity.  

Federal and Postal workers don’t file for Federal Disability Retirement benefits without good cause.  In a denial letter from the Office of Personnel Management, the statements made and the claims of rational discourse as to the reasons for the denial, do not mean that they are true.  Just because OPM says so, doesn’t make it true. Careful thought, reflection, and thoughtfulness of strategy in responding to an OPM denial is what is needed.  Do not react — at least, not initially.

Sincerely,

Robert R. McGill, Esquire