OPM Disability Retirement: The Gargantuan Bureaucracy

Gargantuan; Leviathan-like; Mammoth; Elephantine; such descriptive words at once describe and simultaneously belie the true nature of an entity, especially when it comes to an administrative bureaucracy at the Federal Government level.  Agencies are organic structures, made up of micro-entities (i.e., people), divided into sections which operate within an infrastructure of larger branches, some of which are essential to the direction of the organism, others which are peripheral but still serve a minor purpose.

Thus, a Federal Agency can be likened to the human body; certain “parts” can be severed without doing mortal harm (a toe or a finger, perhaps); other organs are vital to the very survival of the living organism.  Within that large structural entity lives and breathes the multiplicity of components which make up the composite whole.  Because of the sheer size, it is advisable to retain evidence of anything which has been forwarded or sent in for consumption by the beast.

Thus, in a Federal Disability Retirement case, whether under the CSRS or  FERS system, the normal course of business in encountering the U.S. Office of Personnel Management should include the ability to show that a vital piece of information was sent and can be verified that it was sent.

Receipt is another matter.  Once a beast consumes its prey, it is difficult enough to try and reach down its throat to see if it made its way into the proper digestive system.  All that one can show is that it was fed; whether and how it was received is often known only by the burp of satisfaction echoing from the winding corridors of an endless maze.

Sincerely,

Robert R. McGill
OPM Disability Lawyer

 

Early Medical Retirement for Federal Workers: Proof and Consequence

What if you possessed a piece of unique information, but no one else could see it? What if, by all appearances, you seemed perfectly healthy, but you weren’t?  What if you struggled every day to meet the stated professional objectives and goals, but were dying inside?

The silence of a medical condition is the consequence of a duality of contradictions:  many medical conditions, including psychiatric conditions, debilitate the “inner” person, and any such explanation to third parties is met with surprise, astonishment, disbelief and denial; but concomitantly, most people don’t want to hear about the troubles of others, anyway.

In preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, one must always distinguish between the medical condition, and proving the medical condition. That X suffers from medical condition Y, unless it is an amputated limb and is self-evident to the outside world, is known only to the sufferer, and to those whom the sufferer relates.

Proving one’s medical condition is done through the objectification of the medical condition — i.e., through a medical doctor who clinically assesses, evaluates, and concludes with a diagnosis.  From there, the proper nexus must be built between the medical condition and the ability/inability to perform one or more of the essential elements of one’s job.  Having X is one thing; proving X is another.

Knowing the distinction will make all the difference in preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS.

Sincerely,

Robert R. McGill, Esquire

Postal and Federal Disability Retirement: Systematic Approach

It is clear from reviewing many of the Federal Disability Retirement applications which have been denied, either at the initial application stage of the process or at the Second, Reconsideration Stage of the process, that the failure to apply a systematic approach in preparing, formulating and filing the Federal Disability Retirement application was entirely lacking.  

The lack of systematically compiling and formulating the evidence to meet the legal standard of “preponderance of the evidence” in a Federal Disability Retirement application under FERS or CSRS can be fatal to one’s efforts.  For, ultimately, it is the nature of the presentation and how it is compiled, delineated and orchestrated which provides for the effective implementation of such an endeavor.

Take the following example:  a “flail” is a farm instrument used for threshing, and in the hands of an experienced user of such equipment, it was an effective tool and implement which systematically cleared a field when in the hands of one who had the experience, knowledge and practical application of such a tool.  Used in modern linguistic terms, the concept, “He was flailing his arms” has come to mean that a person is waving and thrashing about in a manner which lacks harmony, elegance or purposeful end — in a wild and wasteful effort of energy.  

The deliberative approach in preparing and formulating any endeavor in life is an encompassing use of a particular tool in a proper manner, for the purpose for which it was created, to bring about an end for which it was designed, and to preserve the energy necessary to bring about the end in mind.

Preparing, formulating a filing a Federal Disability Retirement application under FERS or CSRS is to use the flail properly, and not to flail about.

Sincerely,

Robert R. McGill, Esquire

Federal Worker Disability Retirement: Crossing Lines

The question has been posed:  How can one Federal Agency make a determination of disability while another, separate Agency can deny a determination of disability? Contained within that question, of course, is an answer of disability from each Federal Agency, which was further preceded by multiple questions requesting the agency to make a determination of disability.

A simple answer to the question posed would be:  Each Agency is independent and separate, and thus has the authority to make an independent determination.  That is what is deemed a “power” answer.  But there are further nuances of an answer which go beyond the mere authority or power of an agency to make a determination.

In preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS, the question of another agency’s determination on disability is often asked:  How can one…?  The full answer to the question would require a complex analysis of the various laws, statutes and criteria, which would include the following:  Each Federal agency which provides a particular disability benefit is mandated by a specific statutory authority which sets out a specific set of criteria, and is different from the statutory authority defining another agency’s particular benefits; some legal criteria are based upon a determination of percentage ratings, while others are based upon employability or whether a particular kind of job can be performed.

Given all of this, one may still “cross the lines” by making arguments utilizing statements from one agency, as persuasive authority in arguing for another agency’s medical disability benefits.  In crossing such lines, however, it is important to maintain the integrity of the role, the criteria, the specific citation of the law, and what Judges actually have stated concerning the extent and authority of the influence which one agency determination may have another another.  Thus, if one attempts to cross the lines, do so with knowledge and understanding of the law.

Sincerely,

Robert R. McGill, Esquire

 

Federal & Postal Service Disability Retirement: Hindrances

One would think that the Human Resources Department of the Agency from which a Federal or Postal employee is attempting to file a Federal Disability Retirement application, would be a “helpful” entity.  It is indeed a baffling phenomena when one pauses and reflects upon it:  What is the purpose of the Human Resources Department?  Specifically, what existential purpose does a person serve, who has a positional designation of “Disability Retirement Specialist”?  Let me attempt to answer the question in the way it is supposed to be answer:  1.  The purpose of the Human Resources Department is to help the Federal and Postal employees of the Agency or Department of which they have been established.  2.  The person who holds the designated job entitled, “Disability Retirement Specialist” is one who, theoretically, is there to assist in any way, within the legal confines established by the Agency, in as much as possible, to help the Federal or Postal employee to finalized and complete the disability retirement packet for submission to the Office of Personnel Management.  Now, let me pose the following hypothetical:  an H.R. person calls up and says, “I cannot forward the disability retirement packet because Box Number ___ on Standard Form _____ has not been checked.”  Does this sound like the Human Resources Department is fulfilling the existential purpose for which it was established?  On the other hand, rhetorical questions are fun to ask, precisely because they are rhetorical, and allow one to expiate some build-up of frustrations on a Friday night, after a long week dealing with multiple agencies.  Have a good weekend.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Always Verify Submissions

The old saying:  Measure twice, cut once, can be adapted here:  Verify twice, submit once.  I am always surprised by Federal and Postal employees who have filed for Federal Disability Retirement benefits under FERS or CSRS to hear that a document, a submission, a Request for Reconsideration, an appeal, etc., was sent to the Office of Personnel Management by regular mail, with no manner of verification.  While I have great respect for the personnel who work at the U.S. Postal Service as well as the Office of Personnel Management, such issues have nothing to do with individual competence; instead, it has to do with the recognition that all oversized agencies (do we even have to argue as to what is defined as an “oversized agency”?) have their internal mail problems — not only of sending or receiving mail, but getting it to the right person, etc.  Not everyone needs to be overly “verification-sensitive” like I am, but my methodology for every document forwarded to OPM is as follows:  faxed (with a print-out of a receipt showing that the fax went through), as well as an express mail or FedEx tracking number.  Verify twice, submit once.  The Office of Personnel Management has never won an argument with me that they “never received it.”

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Argument by Analogy

Attorneys argue “by analogy” all of the time; cases and decisions from the Merit Systems Protection Board, and language from the Federal Circuit Court of Appeals, provide the fertile fodder for such argumentation.  Thus, such issues as to whether the Bruner Presumption should apply in the case; whether a case is similar to previously-decided Federal Disability Retirement cases; the similarity of fact-scenarios and legal applications — they are all open to argument by analogy.  That is why case-citations are important — even in arguing a Federal Disability Retirement case to the Office of Personnel Management.  Whether and how much influence such legal argumentation can have at the first two stages of the disability retirement application process, may be open to dispute; but cases should never be compiled and prepared for the first or second stage alone; all disability retirement applications should be prepared “as if” it will be denied and will be presented on appeal to the Merit Systems Protection Board.  Such careful preparation serves two (2) purposes:  First, for the Office of Personnel Management, to let them know that if they deny it and it goes on appeal to the Merit Systems Protection Board, they will have to answer to the scrutiny of the Administrative Law Judge; and Second, for the Administrative Law Judge at the Merit Systems Protection Board, to let him or her know that you did indeed prepare the case well, and that your particular Federal Disability Retirement application conforms to the law, and should therefore be approved.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: The Purpose of Case Law Citation

Is it necessary for a Federal Disability Retirement Applicant to cite relevant case-laws and statutory authority when filing for disability retirement? Or, should the medical evidence be sufficient? Certainly, there is no statutory requirement that “the law” be referenced when filing for disability retirement. And, further, it is normally not a good idea for a non-lawyer Federal or Postal employee to refer to case-law or relevant statutory authority, if only because non-lawyers often mis-state the law, or misinterpret relevant case-law authority.

The primary purpose why I refer to, and cite relevant statutory authority and case law, even at the initial administrative stage of filing for disability retirement on behalf of a Federal or Postal employee (normally, I will prepare a lengthy legal memorandum for each case), is because I want to preempt any mis-statement of law to the benefits specialist reviewing the application packet. It is important at each stage of the process to point out the relevant law, the applicable case-law, the judicial opinions which have addressed the multiple issues which can deter or potentially derail a disability retirement application. While the benefits specialist at the Initial Stage of the process may not be fully aware of the applicable laws, it is the job of the Attorney to point out the law, and demand that the Office of Personnel Management conform to the relevant, current judicial constraints which should be adhered to.

Sincerely,

Robert R. McGill, Esquire