Disability Retirement for Federal Government Employees: Making Explicit the Implicit

Sometimes, it is implicitly clear in the formulation of the Federal Disability Retirement application that the applicant is unable to coherently present one’s case in a Federal Disability Retirement application under FERS or CSRS.  

Whether because of the physical limitations or the cognitive dysfunctions, the brevity of the statement on the Applicant’s Statement of Disability, or the illegible handwriting, etc., may well provide an indication of one’s medical conditions and their impact upon one’s Federal or Postal duties in a particular position.  But to rely upon an implicit revelation, or to expect that a Claims Representative at the Office of Personnel Management may infer the intractable pain which the potential applicant may be experiencing, is to expect that which will likely not happen.  

The paper presentation offered to the Office of Personnel Management must be explicitly stated at every juncture, at every opportunity, at every potentially coordinating point — with succinctness and clarity of delineation, utilizing the language available, inserting the most effective, descriptive adjectives to create a compelling word picture, governed by truth and justified by the medical documentation within the parameters of the law, in order to express that which has previously remained implicit.

To make explicit that which is implicit is the key; to expect the implicit to be recognized by the reviewing individual at the Office of Personnel Management is to expect the impossible.

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 Employee Medical Retirement: Keeping it Simple

In almost all instances, stating the obvious when filing for Federal Disability Retirement benefits under FERS & CSRS is the rule to follow.  Another simple rule to follow:  Keep it Simple.  Except in special circumstances (e.g., where there is a nebulous diagnosis and one must interweave multiple symptmatologies in order to bypass the possibility that you may be later precluded from “adding” a “new” medical condition, etc.), it is best to stick to a paradigm of a 1-to-1 ratio or correspondence of medical conditions, symptoms, impact upon work, etc.  

Such a template can be dangerous to follow, however, because any Applicant’s Statement of one’s disability should never appear mechanical or stilted in its tone and tenor.  Emotionalism should not be stripped from an applicant’s statement of one’s disability in a Federal Disability Retirement application and, indeed, sterility should not be a goal to be sought.  

That goal should be from the treating doctor, where technical medical terms present a sense of diagnostic objectivity and scientific validity.  But such simple rules as presenting the correspondence between specific physical conditions with the physical requirements of one’s job, and similarly, between specific psychiatric symptoms with the cognitive requirements of one’s job, is an important “rule” to follow.  Remember, however, that filing a Federal Disability Retirement application under FERS or CSRS is not a “perfect science”; in fact, it is not a science at all, but a mix between law, personal input, and medical facts, with the creative force of persuasion.

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 & CSRS 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

CSRS & FERS Disability Retirement: OPM May Say So, But…

I often wonder how many unrepresented disability retirement applicants there are who, having received a denial letter at the First Stage of the process of filing for Federal Disability Retirement benefits under FERS & CSRS, never file a Request for Reconsideration because they believe what the Office of Personnel Management stated in the Denial Letter.  Sometimes, I will get telephone calls from people who want to file, and during the course of the conversation, it will come out that they had filed a few years previously, and had been denied.  “Did you file a Request for Reconsideration, at the time?” I ask.  “No,” is the answer.  “Why not?” I ask.  The typical answer?  “Because I just thought there was no way to fight them on it.” 

I used to be amazed at such answers, but after some thought, it makes sense.  As an attorney, my first instinct (both trained and natural) is to always take something to the next level, with the firm belief that I will prevail just by pure persistence, and by using the law as “a sword” in the process of fighting for my clients.  But most people are not lawyers (some would say, thank goodness for that, we have enough lawyers in the world), and when the Office of Personnel Management writes up a denial letter, then allegedly cites “the law”, and makes bold conclusions such as, “You do not meet the eligibility criteria under the laws governing disability retirement…”  It all sounds convincing.  It all sounds like any further action will be an act of futility.  But just because OPM “says so” doesn’t make it true, doesn’t make it right, and certainly doesn’t make it unwinnable.  They may say you don’t meet the eligbility criteria; I would argue otherwise.

Sincerely,
Robert R. McGill, Esquire