Medical Retirement Benefits for US Government Employees: Insufficiency Test

The validity of allegation that there is an insufficiency of X is partly determined by an objective standard, and partly (if not mostly) derived from a judgment as to the nexus between X and the standard to be applied.

In Federal Disability Retirement cases the basis of most Federal Disability Retirement denials is that there is an insufficiency of proof, whether as to issues of light duty or accommodation, medical opinion, medical documentation; questions about deficiency of service; and multiple other specified areas — but all will ultimately be determined to have a “lack” of something such that it fails to meet a “sufficiency” test.  But sufficiency can only be determined by comparing what exists (i.e., what has been previously submitted to the Office of Personnel Management) to what the legal standard of proof requires.

Further, since the overriding legal standard is based upon a “preponderance of the evidence”, which requires that something be ‘more likely than not’, the narrow gap between human involvement in the judgement of sufficiency, and a truly objective basis for such insufficiency, is susceptible to human error.  Because of this, appearance of quantity in addition to quality is often what is required.

As decisions by OPM are rendered by a wide range of people whose judgment, competence and approach in evaluating a case differ greatly, it is unfortunately necessary to take into consideration the foibles of human error.  Until a precise algorithm is invented which applies fairly and accurately in all cases across the board, we must continue to deal with human beings, the their errors of judgment.

Sincerely,

Robert R. McGill
FERS Disability Lawyer

 

Federal Employee Medical Retirement: The Human Factor

In preparing, formulating and filing a Federal disability Retirement application under FERS or CSRS, the self-contradiction involved in the entire process is that the Federal Disability Retirement packet is being submitted as a “paper presentation” to people at the Office of Personnel Management, yet, concurrently, the preparation of the submission is done with the intent of eliminating the “human factor”, and instead to meet all of the critical elements and the legal burden of proof.  

The human factor necessarily involves human elements, and therefore the potential for errors.  There is no mathematical formula in preparing a Federal Disability Retirement application.  It is not an exact science, and one cannot predict the guarantee of a Federal Disability Retirement application as to its approval.  

Because of the human element involved, one can only attempt to formulate the packet by inoculating against the potential of human errors, and that means that one must understand and interpret all of the legal criteria which are necessary for a successful approach to the process.  The human factor is countered by more human factors — that is why there is a process of appeals — before administrative judges, and Judges at the U.S. Court of Appeals for the Federal Circuit.  The appellate process is a further attempt to review the possibility of human errors, and an attempt to correct such human errors.  

If there was a mathematical construct which could precisely determine the eligibility of each Federal Disability Retirement submission, and there was unanimous agreement that the computer model was fair and without error, perhaps such a computer program will one day make the determination of an approval or denial of a Federal Disability Retirement application.  That is doubtful, however, because we are dealing with human beings, human medical conditions, and human suffering.  As such, the human factor can never be entirely eliminated, and nor should it.

Sincerely,

Robert R. McGill, Esquire

Federal Employee Medical Retirement: The Human Narrative

Ultimately, of course, a Federal Disability Retirement application under either FERS or CSRS is based upon a “human narrative” — delineating, describing and revealing (sorry — I could not think of an appropriate third word in this attempted alliteration which begins with the letter “d”) an individual’s story of one’s medical condition, the impact upon such condition upon one’s ability/inability to perform the essential elements of one’s job, and the further impact upon one’s routine of daily living (yes, we tend to forget that third part on SF 3112A, which asks about how one’s medical condition impacts other aspects of one’s life).  

Is it a story which “touches” someone at the Office of Personnel Management?  If one reads enough of the denial letters from the Office of Personnel Management (and only an attorney who handles such cases would have access to denial letters other than the one which is addressed to a particular applicant), one begins to realize that the Case Worker at the Office of Personnel Management is merely applying a set of legal criteria in a mechanical, almost assembly-line like manner.  

There is very little humanity involved in the review and determination by the Office of Personnel Management.  Now, one may argue that there could not be “another way” of making a determination — for, to show human emotion, compassion, sympathy or empathy would be contrary to the mandate of “the law”, and that is probably true.  One hopes, however, that the human narrative which is described in the Applicant’s Statement of Disability touches — in some way — such that it triggers a determination of approval based upon the law.  This, because if it is merely “the law” which is applied by OPM, then that implies that one must “know the law”; and knowledge of the law is rarely shown, and even more rarely applied, by the Office of Personnel Management.

Sincerely,

Robert R. McGill, Esquire