Attorney Representation in Federal Disability Claims: Directions

The crude form of the proverbial image formulated is:  Up the creek without a paddle, but normally with an epithet inserted.  It portrays a vivid scene of being in a symbolic state, directionless and without a means of guiding or maneuvering.  One is thus subject to the winds of time, the vicissitudes of circumstances beyond one’s control, immediate or otherwise, and where a growing storm of unforeseen proportions and magnitude is coming at a rate of ferocity uncontrollable and unable to be prepared for.

People with medical conditions have that sense of progressive disintegration, where the things that one has worked and strived so hard to achieve, are now in danger of loss and ruination. For the disabled Federal employee or the injured Postal worker who suffers from an accident or other health condition, such that the medical condition is impacting the capacity and ability to perform all of the essential elements of one’s job, the growing fear of being swept aside by slow, insidious and deliberative steps by the agency — of a poor performance review; of initiating a “Performance Improvement Plan“, or a PIP; of threats of separation and termination because of one’s absenteeism and exhaustive use of LWOP; all point towards an inevitable direction which is far from the destination that the Federal or Postal employee wants to arrive at.

Lifeboats are funny things; they may save the life, but without a paddle, one may drift and yet fail to survive for lack of food or water.  Sustenance is the key to a life worthy of living.

For the Federal or Postal employee under FERS or CSRS, when a medical condition begins to threaten one’s employment with the Federal agency or the U.S. Postal Service, it may be time to consider filing for Federal Disability Retirement benefits.  Filed through one’s agency if one is still employed or separated from Federal Service but not for more than thirty one (31) days, the application is ultimately processed through the U.S. Office of Personnel Management for a determination of eligibility and entitlement.  It is a benefit which, in and of itself, provides for a basic annuity such that the sustenance of a livelihood is provided for, in order for the Federal employee or the Postal worker to attend to one’s health, and continue to look to a brighter future in the years ahead.

Thus, in that sense, Federal Disability Retirement is the needed oar for the man or woman in the proverbial boat, stranded up the mythological creek, waiting for the means to direct the drifting dictation of life’s daring demands.

Sincerely,

Robert R. McGill, Esquire

 

Federal and Postal Disability Retirement: The Importance of Knowing “the Law”

The old dictum that “ignorance of the law is not an excuse” for violating the law, applies just as well in a Federal Disability Retirement application — unless, of course, the entity which fails to recognize the substance of the law, its applicability, and its extended content and consequences happens to be the U.S. Office of Personnel Management.  

Let me expand somewhat.  

In order to qualify for Federal Disability Retirement benefits under either FERS or CSRS, one must prove by a preponderance of the evidence that one is entitled to the benefits.  Such proof of “preponderance of the evidence” must be in compliance with the applicable statutes, regulations, legal criteria, case-law (as handed down by the Merit Systems Protection Board decisions, as well as by the Federal Circuit Court of Appeals).  However, when the entity which constitutes itself as the intermediate arbiter of all Federal Disability Retirement applications (it is merely “intermediate”, as opposed to “final”, because there is the review process by the Merit Systems Protection Board and the Federal Circuit Court of Appeals) itself fails to apply the applicable law, there exists an inherent problem.  

OPM is designated to decide cases based upon the applicable law.  Yet, in its denials, it will often apply criteria which has absolutely no basis in “the law”.  

All the more reason why, in preparing, formulating and filing for Federal Disability Retirement benefits, it is important for the Federal or Postal worker seeking to obtain Federal Disability Retirement benefits, whether under FERS or CSRS, to know and understand the law — its substance, applicability, and consequential reverberations upon the multiple aspects of issues involved in a Federal Disability Retirement application.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Workers: Criteria and Proof, II

In preparing, formulating and filing a Federal Disability Retirement application under either FERS or CSRS, it is important to pause in the beginning stages of the process, prior to “going down the road” of the long and difficult administrative process of preparing a Federal Disability Retirement application, to consider the conceptual distinction between a legal criteria and the proof which is needed in order to satisfy the eligibility requirements of the legal criteria.  

In this day and age when the “culture at large” believes that an individual who speaks the loudest, uses words which appear in form articulate, and in cadence of some eloquence, the reverberations to the legal community have been felt both qualitatively and quantitatively.  Lawyers are supposed to be word-crafters; lay individuals who have some inkling of “the law”, may have some competence in the legal arena, but in order to survive the multiple pitfalls which are inherent in any area of law, it is wise to consider “that which” must be proven, as opposed to the proof itself.  

It is thus important, in preparing to formulate a Federal Disability Retirement application under FERS or CSRS, to review the statutes which govern the eligibility criteria for Federal and Postal employees; to read through the regulations; to research the case-laws as interpretive devices which can expand, constrict or regurgitate the statutory authority as written, as handed down by Administrative Judges at the Merit Systems Protection Board; then, upon a thorough and competent understanding of the legal criteria applicable in a Federal Disability Retirement application under FERS or CSRS, to begin to gather the “proof” which is necessary in order to satisfy and meet the legal criteria.  

Only upon an understanding of the distinction between criteria and proof can one then proceed to gather the latter in order to satisfy the former.  Early distinctions made can clarify and avoid later confusions encountered; or, as the age-old dictum goes, being penny wise is preferable to ending up pound foolish (or some variation thereof).

Sincerely,

Robert R. McGill, Esquire

Postal and Federal Disability Retirement: The Value of Preemption

“What if” questions are rarely useful in applying the law, except in a preparatory manner for cross-examination purposes.  No one likes surprises, and to prepare for every potentiality, eventuality, and “what if” scenario is a good idea — but only in a theoretical sense.  

In preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS, the “what if” questions will inevitably arise — What if my Supervisor writes X?  What if OPM asks Y?  What if… ?  The problem with “what if” questions is not in the asking of such questions (for asking them requires contemplation of a potential problem, which may propel preparation to an eventuality); rather, the problem occurs if one attempts to preempt a problem which may potentially exits but never realize its actuality.  

If one preempts a non-occurrence, then what one has done is to wave a red flag and notify the Office of Personnel Management of the problem by bringing up the problem in the first place.  That is often the very essence of the difficulties one finds in the preparation of the Applicant’s Statement of Disability, where the applicant fills out the SF 3112A as if it is a stream of consciousness opportunity to present to the Office of Personnel Management every problem known to man.

Preemption is fine for preparation; it needs to be answered and applied with great discretion.

Sincerely,

Robert R. McGill, Esquire

Federal Worker Disability Retirement: Extrapolating Carefully from “The Law”

In preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS, it is important to recognize the major legal cases (those “landmark cases”) from which many other cases derive their foundational basis.  Such cases form the fundamental and overriding criteria of a legal arena, and this is no different in arguing for Federal Disability Retirement benefits under FERS or CSRS, either for Federal or Postal employees.  Furthermore, in citing a case to argue for one’s position of eligibility and entitlement, it is equally important to have read the cases carefully, and to argue the merits of an issue persuasively and accurately.  

One of the worst things that a lay, non-lawyer applicant can do is to mis-cite a case or a statute, and its meaning and ancillary conclusions.  For, when the Office of Personnel Management reviews a case and refutes a particular issue, and further points out that a legal precedent or statutory authority has been mis-applied, one’s credibility as to the substance of the application is not only undermined, but further, the viability of one’s legal argument has been subverted.  As such, it is normally advisable to leave the law to lawyers — and in Federal Disability Retirement cases under FERS or CSRS, to leave it to lawyers who specialize in the field. For, to do little or no harm to one’s self is certainly better than to saw off the branch which one has grasped onto, no matter how tenuous the position to begin with.

Sincerely,

Robert R. McGill, Esquire

Federal and Postal Disability Retirement: Legal Standard & Persuasion

There is a distinction between the existence of a legal standard and the citing of such legal standard — to include statutory references, case-law citations, etc. — and the art of persuasion.  In reviewing Federal and Postal Disability Retirement applications which have been previously prepared, formulated and submitted by unrepresented Federal and Postal employees, which have been denied, it is often refreshing to see how laymen (i.e., “non-lawyers”) have utilized cases and case-law citations (often straight from some of my articles and blogs) in arguing his or her case. 

The problem with such an approach, however, is that the unrepresented Federal or Postal employee will often refer to such legal standards without engaging in the necessary art of persuasion.  Legal standards are certainly there to be used; however, there is a proper way and methodology of utilizing legal standards, and an improper way.  The improper way is to use the legal standard as a hammer — of stating:  X exists and states Y, therefore you must conclude Z.  The proper methodology in utilizing a legal standard is to engage in the art of persuasion:  X exists, and X determines why Y must come about, and therefore Z should be the logical conclusion, and here are the reasons why. 

Normally, I advise against non-lawyers using the law precisely because of the potential mis-application of the methodology.  Leave the law to lawyers; that is why lawyers are hired.

Sincerely,

Robert R. McGill, Esquire

Federal Worker Disability Retirement: The Irony of Favorable Laws

In certain areas of “the law”, statutes, regulations and case-laws have developed which tend to favor the individual seeking to obtain a benefit through such laws.  For the Federal or Postal Worker who is seeking Federal Disability Retirement benefits under FERS or CSRS, one could easily argue that the laws governing the process of seeking Federal or Postal Disability benefits from the Office of Personnel Management “favor” the applicant.  

Think about it:  a Federal or Postal worker (under FERS) needs only 18 months of minimum eligibility; light duty, or modified duties, do not preclude one from obtaining Federal Disability Retirement benefits; one has up to a year after being separated from Federal Service to file for the benefit; a Federal or Postal Worker who suffers from a medical condition only has to show that it prevents one from performing one or more of the essential elements of one’s job; one does not need to show “total disability”, but only disability as to one of the critical elements of one’s job; and so on.

The irony of such “favorable” laws governing Federal Disability Retirement under FERS or CSRS is, however, that such favor often invites greater scrutiny.  Thus, the fact that the substantive laws governing a legal process may provide an advantage to the seeker, does not in any way mean that the process itself is any easier.  On the contrary, one could argue that because the substantive laws governing a legal process favor the applicant, that the process itself is made all the more difficult.  Such ironies often arise in various facets of life, and it certainly seems to be the case for Federal and Postal workers seeking to obtain Federal Disability Retirement benefits under FERS & CSRS.

Sincerely,

Robert R. McGill, Esquire