OPM Disability: Demythologization of the Process

Beyond being an ugly word, Spinoza attempted it, but closer to the heart of a flawed hermeneutical approach, the theologian, Rudolf Bultmann spent his career attempting to separate the conceptually inseparable narratives encapsulating historical content, context and the meaning behind miracles and metaphor.

All processes are mysterious, until detachedly analyzed, devalued or debunked.  Some merely throw up their hands and reject a subject in its entirety; others spend a lifetime in trying to understand it, and thus do cottage industries emerge.  The peril of pursuing a discipline of futility is that, in the end, the process of one’s own actions may be just as inexorably a conundrum as that which one attempts to unravel; read a single, random paragraph from Heidegger, and one immediately understands such a declaration of frustration.

Often, for Federal employees and U.S. Postal workers, the prefatory statements of confusion abound:  ” I’ve heard that…”; “OPM always …”; “Is it even worth it to…”  But there is indeed a practical difference between the bureaucracy itself, and the bureaucratic process; the former is merely a juggernaut of an agency which is impenetrable because of the nature of the Federal system; the latter is an administrative process replete with multiple layers of statutory and regulatory devices which are complex in their compendium of requirements.

Filing for Federal Disability Retirement benefits by the lay person, whether the Federal or Postal employee is under FERS, CSRS or CSRS Offset, is a complex, puzzling and often overwhelming process.  It can be likened to handing a complex transactional law case involving multiple Fortune 500 companies attempting to merge for purposes of avoiding specific legal entanglements to a first-year associate; mistakes are bound to be made, as one fails to recognize the inherent complexities or the need to draft preventative safeguards.

Further, when a medical condition already weakens the physical stamina of the Federal or Postal employee, and tests the limits of one’s cognitive acuity, the ability and capacity to engage a large and complex bureaucracy can be, at best, a challenge.

Filing for Federal Disability Retirement benefits through the U.S. Office of Personnel Management is analogous to the hermeneutical approach of attempt to demythologize a sacrosanct text of unyielding historical import; the difference from theology, however, is in the pragmatic need and practical residual consequences foretelling; and as they say in the fine-print warning of some advertisements, you should probably not try this on your own.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Workers: Defining Complexity Down

The complexity of a Federal Disability Retirement case is made all the more so, in exponential fashion, when the inherent issues concerning the medical condition and its impact upon one or more of the essential elements of one’s job are difficult and involved.

The administrative process of preparing, formulating and filing for Federal Disability Retirement benefits, whether under FERS or CSRS, from the U.S. Office of Personnel Management, is in and of itself a complex process — if only for the sheer volume of Standard government forms which must be completed — and is compounded in multiple ways when the variegated medical conditions are included.  Indeed, sometimes it is the combination of multiple medical conditions which, in the totality of interconnected and intersecting symptomatologies, constitute the entirety of the medical impact in preventing one from performing a particular kind of job.

It is the job of the applicant for Federal Disability Retirement benefits — the Federal or Postal employee under FERS or CSRS — who must define the complexity down to its basic, comprehensible and coherent, cogent presentation, in order for the reviewing clerks at the U.S. Office of Personnel Management to analyze and ultimately approve the Federal Disability Retirement application.

A simple rule of thumb:  If you cannot explain it, how will OPM make heads or tails of it? The solution:  If you cannot do it, obtain the services of someone who can; normally, this would involve an attorney.

Sincerely,

Robert R. McGill, Esquire

Federal Worker Disability Retirement: Reluctance through Negation

Making mistakes is part of the entire process of going through life; receiving advice and proper counsel helps to mitigate such mistakes; the distinction between “advice” and “information” is not merely a conceptual difference, but a pragmatic one which impacts one’s actions, thoughts, and application of thoughts to actions.  

“Going it alone” in preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS is no longer the only viable option; there is much information “out there” on the internet, and other publication resources are available; but as has been written about previously, there is a conceptual distinction to be made between “information” and “knowledge”, where the former is merely a compilation of facts and perspectives upon those facts, whereas the latter is a filtered compendium of the latter based upon experience, reflection, and considered logical analysis.  

The Federal or Postal employee who is considering filing for Federal Disability Retirement, who encounters the morass of information and hesitates because of the reluctance to engage in an administrative process, complex though it may be, is making a crucial mistake.  

Most “mistakes” which result in a denial from the Office of Personnel Management in a Federal Disability Retirement application under FERS or CSRS are correctable.  Such mistakes, however, must be identified, recognized, and addressed in any subsequent appeal, either at the Reconsideration Stage of the process, or in the appeal to the Merit Systems Protection Board.  

Reluctance to begin or continue the process of preparing, formulating, and filing a Federal Disability Retirement application with the Office of Personnel Management, because of the potential negation through mistakes, while understandable, should not result in failing to file.  

The medical condition should be the determinative factor, as well as the quality of life for the Federal or Postal Worker contemplating filing for Federal Disability Retirement benefits under FERS or CSRS.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Government Employees: Misreading the Law

As the old adage goes, a little bit of knowledge is a dangerous thing.  The Bruner Presumption is one of those legal tools which is often misunderstood and misapplied. The legal presumption stems from a Federal Circuit Court of Appeals opinion which basically declared (among other things) that when a Federal or Postal employee is separated from Federal Service for his or her medical inability to perform one or more of the essential elements of one’s job, that there is a “presumption” that the Federal or Postal employee is entitled to Federal Disability Retirement benefits from the Office of Personnel Management.  

Does this make it a certainty that one will receive an approval of a Federal Disability Retirement application from the Office of Personnel Management?  No. Does it enhance the chances of obtaining an approval from the Office of Personnel Management?  Maybe.  

One must remember that the Office of Personnel Management, at least for the first 2 stages of the process, does not assign attorneys as Case Managers to review a Federal Disability Retirement application.  As such, relying too heavily on the “Bruner Presumption” would be a mistake.  Further, to wait for the agency to terminate you based upon your medical inability to perform your job so that you can argue that you “have the Bruner Presumption” would be foolhardy.  It is a legal tool.  In order to use it, you must apply it in the right manner.  It would be like using a screwdriver to open up a can of peas.  As another old adage goes:  “Leave it to the professionals“. 

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement for Federal and USPS Workers: Don’t Overstate the Case

It is important to have an objective tone in one’s Federal Disability Retirement application under FERS or CSRS.  This is inherently difficult, of course, if one is representing one’s self in such an application, because naturally the subject is the very person one is attempting to be objective about —  one’s very own self.  Because of this difficulty, it is often important to have legal representation, in order to attain that level of objectivity where the voice which speaks concerning the subjective pain, medical conditions, and impact upon one’s ability or inability to perform one or more of the essential elements of the job, is portrayed in an ‘objectified’ manner, tone and tenor.  Further, the problem with an overemphasis on emotionalism in any Statement of Disability is that, while it may evoke sympathy, it often overstates the case.  Overstating a case occurs when the subjective description collides with the ‘objective’ medical documentation which it is meant to support — not to undermine — the case as described by the applicant for Federal or Postal Disability retirement benefits.  Remember that, from the perspective of the Office of Personnel Management, the applicant who has prepared the Federal or Postal Disability Retirement application under FERS or CSRS has an underlying motive beyond filing for a benefit — that of being the recipient of the benefit.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement for Federal and USPS Workers: Using the Legal Tool

A word of wisdom:  generally, it is not a wise endeavor for applicants who are not lawyers, who file for Federal Disability Retirement benefits under FERS or CSRS, to make legal arguments.  I have seen the end-product of such results, and have concluded that they are more-often-than-not, harmful to the case.  Most legal arguments are formulated through years of discretionary application based upon extensive research and experience in a given area of law; and the discretion that must be used is not always intuitively obvious.

As an example, there are cases where it is entirely appropriate to submit the VA disability rating as part of the Federal Disability Retirement application, as supplemental documentation in support thereof.  However, determination concerning the importance, impact and significance of relying upon such information must be discreetly assessed.

Yes, there is “case-law” concerning the persuasive authority of VA Disability ratings.  However, the practical legal aspect of utilizing such ratings must be carefully considered, based upon numerous factors:  while the combined rating may be higher, what are the individual percentages?  Are each high enough to warrant persuasive argumentation?  Could closer scrutiny of the individually ascribed ratings be more harmful to one’s case?  Is the rating (and each individualized break-down) discussed in medical terms in the VA records?

Ultimately, the individual who files for Federal Disability Retirement benefits without an attorney must rely upon himself or herself, and the wisdom of one’s own counsel.  Whether that is wise or not, I leave to each individual.

Sincerely,

Robert R. McGill, Esquire

FERS Disability Retirement for Federal and USPS Workers: Selective Reality

The problem with an unrepresented Federal or Postal employee who files for Federal Disability Retirement benefits from the Office of Personnel Management, is that because this is the one and only encounter with OPM, any response from them will be a narrow, one-dimensional perspective.

Thus, if the Office of Personnel Management denies the Federal or Postal disability retirement application, such a denial, the manner in which it is written, the content, the apparent delineation of “the law”, and the loosely-stated declarative statement while vaguely referring to the insufficiency of one’s medical documentation, will result in a narrow perspective, in a vacuum of reality created by OPM.

OPM’s denial letters are notorious for its selective reality.  Such selective reality will completely ignore all medical statements which seem to support the OPM disability retirement application, while selectively focusing upon every tidbit of medical notations which favor the denial.

Thus, be careful if on any given day, you arrive at the doctor’s office and the doctor asks you how you are feeling, and you respond with, “I’m feeling pretty good, today.”  Such a conversational statement may nullify the fact that, in its proper context, what the reality of your statement meant to convey was:  “I’m feeling better today in comparison with yesterday and the entire month before, but in no way could I perform my job even today.”  But OPM will selectively pick upon that one statement, and run with it — to a complete and total basis in denying your Federal Disability Retirement application under FERS or CSRS.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Mistakes Made

There is obviously an assumption to be made that if a case is denied at the initial stage of the process of filing for Federal Disability Retirement benefits under FERS or CSRS, that a “mistake” must have been made.  The mistake, then, is given an opportunity to be “corrected” at the Second, or Reconsideration Stage, of the Federal Disability Retirement process.  Further, if the mistake is not properly corrected, or corrected to the satisfaction of the Office of Personnel Management, and it is again denied — at the Reconsideration Stage of the process — then there is the cumulative assumption that further mistakes were made in the application.  Just as success distinguishes between winners and losers, the general assumption is that a denial by the Office of Personnel Management means that there was something inherently wrong with the Federal Disability Retirement application at its inception. 

Yet, if this were true at each turn, for every case, then there would never be a case where, at the Third Stage of the process, in filing an appeal to the Merit Systems Protection Board, that the Representative from the Office of Personnel Management would not reverse a denial and grant the disability retirement after listening to the legal arguments made by the attorney for the applicant.  Many times, it is the pointing out of overlooked aspects of a case which makes the difference between an approval or a denial — and not necessarily something that is inherently wrong, or that a “mistake” was made.

Sincerely,

Robert R. McGill, Esquire