Federal and Postal Disability Retirement: Process versus Substance

The emphasis and magnified focus upon process-issues as opposed to the underlying substance of an endeavor is often misplaced; yet, the problem is, if one ignores the former, the latter may never reach fruition because it may never arrive at its intended destination.  The question of balance between the two is an important one; for, the greatest of ideas may have historically vanished not because the idea itself was one lacking in value, but rather because it never received the sales pitch which effectively presented itself into the stream of commerce.

Similarly, in a Federal Disability Retirement application, whether under FERS or CSRS, through the U.S. Office of Personnel Management, while it is important to understand the administrative process of the “nuts and bolts” of filing (i.e., who does it go to; which form is completed by whom; how long does it take at point X; what happens after destination Y, etc.), it is preliminarily of relevance to get the substance of the application in order (i.e., the proper medical report with all of the essential elements in place; one’s statement of disability which addresses the issues of concern to OPM; any legal arguments and invocation of precedent-setting arguments, etc.).

Process gets us there; substance is the “that” which gets there.  If there is no “that”, it will be no use for the “there”; and, conversely, if it never gets there, it will not make a difference.  Ultimately, however, while both are of importance, it is the substance of the case which makes the difference, and the focus should be upon that substance before one’s attention is placed upon the vehicle of delivery.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Medical Disability Retirement: Ockham’s Razor

Ockham’s Razor is a principle of economy; in its various forms and historically evolved attributes, the formulation of lex parsimoniae involves the idea that, where there are multiple competing theories and paradigms in explaining a phenomena, issue, or working hypothesis, one should always choose the least complex delineation — the reason being, superfluous and extraneous material generally lead to complications which rarely add to the foundational essence of the paradigm.  To put it in an alternate form:  Keep it simple.

Thus, 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 always important to follow the principle underlying Ockham’s Razor:  Keep to the core and essence of the case; focus upon the nexus between one’s positional duties and the medical condition which one suffers from; weave a consistent theme; check for inconsistencies; and always maintain the simplicity of the case, while avoiding and disregarding extraneous factual issues which, while they may be personally of importance or of special aggravation, should be left out because they unnecessarily complicate matters.

FERS & CSRS Disability retirement and the obtaining of an approval is the goal to focus upon; all else should fall by the wayside, cut loose by the sharp blade of Ockham’s razor.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Medical Disability Retirement: Substance and the Spaces in Between

The philosophical conundrum involving the ability to distinguish between dreams and reality, rests upon a fundamental confusion on the part of the thinker:  one would not be able to discuss the concept of dreams, unless there is first a presumption about reality.

The fact that we can discuss whether or not X is a dream, is precisely because there is already a pretext of a reality.  Similarly, in almost every other area of conceptual discussions:  appearance versus reality; essence versus the peripheral; and multiple other instances.

In preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, it is important to stick to the “substance” of one’s claim, lest the verbiage and the spaces in between detract and confuse the Case Worker at the U.S. Office of Personnel Management.

Issues which lead one away from the essence of a Federal Disability Retirement application, such as anger at a supervisor; a rant against the agency; undue focus upon the hostile environment created by the agency; all of these can seem as real as the reality of a dream; but however real a dream may appear, one awakens, and the reality of the real world suddenly forces itself upon us.

In a narrative telling of one’s disability and its impact upon one’s life, it is not the “spaces in between” which tell the story; it is the story itself.  Thus, all roads should lead back to the essence of one’s narrative:  the medical condition, and how that condition prevents one from performing one or more of the essential elements of one’s job.

Sincerely,

Robert R. McGill, Esquire

Federal Worker Disability Retirement: Getting Lost in a Morass

At each step in the administrative process of preparing, formulating and filing for Federal Disability Retirement benefits from the Office of Personnel Management, including any responses to denials from OPM in order to qualify for the subsequent stage of the process (i.e., a Request for Reconsideration must be filed within thirty (30) days of the denial; an appeal must be filed with the Merit Systems Protection Board, etc.), there is always the danger of becoming lost in the morass of peripheral issues, often resulting from a sense of panic upon an initial reading of correspondence received.  

Thus, whether it is a letter from the Office of Personnel Management for additional medical documentation; a decision of denial at the Initial Stage of the Process; a second denial from the Office of Personnel Management — it is important to have a sense of how one must extract the essential points which must be addressed, and refuse to respond in a reactionary, ineffective manner.

Compiling an immediate response based upon an initial reading is normally a waste of time.  Verbiage which takes up space on a page of paper does not in and of itself mean that it requires a substantive response.  Much of what the Office of Personnel Management states can be summarized in a couple of sentences, once all of the ancillary issues are set aside.  

Further, it is more often the case than not, that what the Office of Personnel Management states as the requirements of “the law” is simply wrong.  OPM is rarely up-to-date on the current case-law as handed down by the Merit Systems Protection Board or the Federal Circuit Court of Appeals. Compliance with the law is one thing; compliance with the wrong law and an erroneous interpretation of legal requirements is quite another.  

To panic is to remain in a morass; to re-review the legal requirements in the administrative process of applying for, and becoming eligible for, Federal Disability Retirement benefits, whether under FERS or CSRS, is essential to the road to success.

Sincerely,

Robert R. McGill, Esquire

Federal Employee Medical Retirement: Statutory Violations

As with most bureaucracies, the Office of Personnel Management is first and foremost established and guided by statutory mandate.  However, there is a distinction to be made between the establishment of a particular agency, and the mission and substantive enforcement of the mission as mandated by statute.  

Often, in its very decision-making process of reviewing, evaluating and deciding upon a Federal Disability Retirement application (whether under FERS or CSRS), it is important to recognize that if a decision is made erroneously, it does not imply or infer a statutory violation.  The statute is open to various interpretations, and such openness lends itself to a wide array of discretionary decision-making.  Complaining or fuming about whether or not OPM violated its statutory mandate is an act of futility; the process itself provides for a paradigm of “checks and balances”  — of having the Merit Systems Protection Board and an Administrative Judge look at a case and hold a Hearing on a case “de novo” — meaning, “anew” or “starting fresh”.  

Further, if one believes that the MSPB Hearing and Administrative Judge rendered a wrong decision, there is the further step in the process of a Petition for Full Review, or an appeal to the Federal Circuit Court for review of any error of law made in the decision-making process.  However, the best course of action if one is still before the Office of Personnel Management, or about to present one’s case at the Hearing Stage of the MSPB, is to focus upon the substance of one’s case, and not upon whether or not OPM or anyone else violated its statutory mandate.  

Save your energy and choose your battles; moreover, it is important to keep a singular focus upon the proper goal — of obtaining one’s Federal Disability Retirement annuity.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Medical Disability Retirement: Content & Substance

Form, Content & Substance.  Form is the appearance and the general approach & methodology of a Federal Disability Retirement packet; Content is the essence of that which makes up the materials in the packet; and Substance (hopefully) is the “meat” of the packet itself.  Make sure that what is stated is substantive.  

OPM Representatives have multiple cases.  From the perspective of the Federal Disability Retirement applicant, it is a singular case, because it is one’s own case, and the personal nature of such a case makes it of paramount importance.  From the perspective of the OPM Representative, however, it is one of multiple cases, and it is part of his or her job.  If one has to wade through a generous amount of fluff before getting to the content of the Federal Disability Retirement application, the energy expended may be a distraction from a serious review of the substantive content.  A descriptive narrative bridging the medical condition with the type of job one performs is a necessary component; but as between a concise short story and a novella, the former is to be preferred in preparing and filing a Federal Disability Retirement application under FERS & CSRS.

Sincerely,

Robert R. McGill, Esquire

Medical Retirement Benefits for US Government employees: Consistency

Consistency, in addition to coherence, is an important element which must always be recognized and reviewed in filing an application for Federal Disability Retirement under FERS or CSRS.  Coherence of an application has to do with the element of “fitting all the pieces” together so that everything coheres in a rational, logical, and often sequential manner.  Coherence often has more to do with form, than with substance.  Consistency has to do with the substantive issues — the actually claims and statements made by a doctor; the opinions rendered in relation to the knowledge obtained; and whether everything “agrees” with everything else, in the very substance of the statements and claims made.

Inconsistencies are precisely what the Office of Personnel Management aggressively searches for, in determining the validity of a Federal Disability Retirement application.  Coherence can often be ignored; indeed, in many Federal Disability Retirement applications filed without an OPM Disability Attorney at the First Stage of the process, I have often found that, when it has been denied and people come to me at the Second, Reconsideration Stage, that the application prepared by the applicant is almost entirely incoherent.

The narrative prepared is often illogical; the doctor’s report often takes a “shotgun” approach, without the coherence of a methodology of addressing the essential issues which OPM is looking for.  Either by form or by substance, it is always better to have problems with form, rather than substance.  But if you ask me, it would be “best” (good, better, best) if both form and substance are carefully prepared — meaning, that a Federal Disability Retirement application is both coherent and consistent.

Sincerely,

Robert R. McGill, Esquire

In Filing for Disability Retirement, Remember the Basics

In the opening sentence of Davis v. the Office of Personnel Management, PH-844E-06-0242-I-1, the Merit Systems Protection Board reminds us all that the “burden of proving entitlement to a retirement benefit is on the applicant…” In past federal disability articles, I have discussed a variety of issues, from important legal principles based upon Bruner v. OPM, to showing how to build the “proper bridge” in preparing a disability retirement application. In preparing a disability retirement application, however, remember to always satisfy the “basics”, because if you fail at the basic level, you will never get to the “substantive” level to argue your case. Davis is a case about a disability retirement applicant whose application was denied at the first Stage (the “initial application stage”) because she “did not present any medical evidence to support her claim.” Strike One — how can you file a medical disability retirement application without any medical evidence?

Next, Ms. Davis failed to file her “Request for Reconsideration” within the 30-day period. She filed it 5 days late. Strike Two — you won’t even be able to argue the substance of your disability retirement case if you don’t take care of the “basics” — like filing your Request for Reconsideration in a timely manner. In OPM’s denial letter, it clearly stated: “Your Request for Reconsideration must be received by OPM within 30 calendar days from the date of your initial denial letter.” Ms. Davis had no excuse.

Now, every now and then — but very, very rarely — an exception will come along. Such was the case in Goodman v. Office of Personnel Management, 100 M.S.P.R. 43 (2005), which was cited as a distinguishing case by the Board. In Goodman, multiple factors allowed the appellant to be excused for her tardiness — including, being misled by OPM verbally over the telephone; receiving the denial letter some three weeks after being postmarked (thereby leaving her with only a week to respond); and being a quadriplegic who had to rely upon others to assist her in responding. Be aware: only under the most exceptional of circumstances will being late in responding be excused. You must take care of the basics, before going on to the substance of a case.

Ms. Davis filed an appeal to the Full Board. Her appeal was, as you might guess, denied. The Board stated that in cases such as this, where Ms. Davis “fails to show that she was not notified of the deadline and was not otherwise aware of it, or that she was prevented by circumstances beyond her control from making the request within the time limit, we will not reach the issue of whether OPM was unreasonable or abused its discretion in denying her untimely request for reconsideration.” (italics added).

Strike three. Ms. Davis is out. As I have reiterated throughout this article, unless you take care of the basics, you cannot even get to the substance of your disability retirement claim. Like the parable of the mighty army which could defeat its enemy, that army could not survive to fight the battle unless it took care of a basic need — water for its troops to cross the scorching desert to meet its enemy. It failed to take care of the basics.

In life, we are all busy doing multiple things, and when a Federal or Postal Employee comes to a point in his or her life where filing for disability retirement becomes a necessity, it is often a good idea to hire an attorney — not only to ensure that the “basics” are taken care of, bur further, to make sure that you get the opportunity to argue the substance of your particular case. My name is Robert R. McGill, Esquire. I am a duly licensed Attorney who specializes in representing Federal and Postal Employees, to obtain disability retirement benefits through the Office of Personnel Management. If you would like to discuss your particular case, you may contact me at 1-800-990-7932 or email me at federal.lawyer@yahoo.com, or visit my website at www.FederalDisabilityLawyer.com.

As an aside, let me point out some other “basics”:

1. Remember that you have one (1) year from the date you are separated from service to file for disability retirement. The one (1) year date does not begin when you stop working; it doesn’t begin when you get placed on LWOP; it doesn’t begin from the time you get disabled. It begins from the date you are separated from Federal Service.

2. For my clients (and those who are not my clients) whom I got disability retirement for — remember that you are allowed to get another job and make up to 80% of what your position currently pays, in addition to the disability annuity you are receiving. It is earned income that counts — not rental income, not investment income, and certainly not your disability income.

3. A teaser — I will probably address this issue in my next article — the Office of Personnel Management seems to, more recently, be scrutinizing those who are already receiving medical disability retirement benefits. For those of my clients (and those who are not my clients) who receive disability retirement, remember to take OPM’s Medical Questionnaire seriously. I have had more cases than usual where disability annuitants have had their disability income discontinued. More on this later….

 

Robert R. McGill, Esquire