Postal and Federal Disability Retirement: The Independence of Each Program

The disparate nature of each Federal program, with little to no intersecting coordination amongst them (with the exception of SSDI and FERS Disability Retirement benefits in the coordination of payments upon approval of each) betrays the unplanned, thoughtless creation of each program, as well as a sense that each agency wants to maintain its feudal control and assertion of independent power.

That perhaps explains, in part, why each program ignores the extent of persuasive authority the approval of another program should logically have, upon an approval and acceptance by the “other” program.  Does it make sense that being granted “unemployability” status under the Department of Veterans Affairs ascription of percentage disability ratings would only have a nominal impact upon a FERS Disability Retirement application?  Or that an SSDI approval would have, at best, a persuasive effect upon a FERS Disability Retirement?

It is somewhat more understandable that a case accepted by OWCP/Department of Labor would have minimal impact upon a FERS or CSRS Disability Retirement application, precisely because the former is set up as a program of rehabilitation in an effort to return the Federal or Postal employee back to his or her job.

The only true “coordination” of benefits occurs between SSDI and FERS — and that, only if both are approved, and payments are received concurrently; but even then, there are often overpayment problems, lack of the left hand knowing what the right hand is doing, etc.

Thus Coordination and intersection between departments, agencies and various programs rarely occurs.  Agencies tend to want to remain independent.

Such lack of coordination, however, does not mean that the FERS or CSRS Federal or Postal employee should not force a legal argument upon OPM when a significant finding is made by another agency or program.  For, in the end, it may not be the U.S. Office of Personnel Management which listens, but an administrative judge at the MSPB, or a 3-judge panel on the Federal Circuit Court of Appeals; in which case, a precedent will have been set, for all to (hopefully) follow.

Sincerely,

Robert R. McGill, Esquire

Federal Disability Retirement: Quantifying Quality & Qualitative Quantity

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 important to make discretionary decisions concerning multiple aspects of a Federal Disability Retirement application — including the volume, extent, nature, and quality of the medical documentation to be submitted.

Because it is the Applicant (the Federal or Postal employee who is submitting the application) who has the “burden of proof” — that burden which states that by a preponderance of the evidence, one’s Federal Disability Retirement application is more likely to be so than not so — it is therefore up to the Applicant to make determinations as to the quality and quantity of the medical documentation and any other relevant attachments.

Qualitative sufficiency is often a difficult measure to determine; quantitative significance is equally difficult — as in, how much is enough? On the one hand, to submit a thousand pages of medical notes, reports, etc., would probably be “too much”.  But a case which only includes 5 pages of medical reports and notes, while seemingly “too little”, can be more than sufficient if the quality of the records and reports is indisputable and irrefutable in determining that a Federal or Postal employee is no longer able to perform one or more of the essential elements of one’s job.

Ultimately, the discretionary decision will come down to a matter of experience — for it is based upon prior experience that one can make better decisions for the future.  To that extent, to be inrepresented in attempting to obtain Federal Disability Retirement benefits is obviously a disadvantage, because an unexperienced Applicant is merely entering into the arena of Federal Disability Retirement law based upon a “hit or miss” history of inexperience.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Additional Supporting Evidence

In preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, there is nothing to preclude one from attaching multiple supporting documentation in proving one’s eligibility for Federal Disability Retirement benefits.

In doing so, however, it is appropriate to keep in mind that the conceptual paradigm of “supporting” should be just that — it must be to assist, help, or otherwise enhance such evidence which constitutes the central component of one’s Federal Disability Retirement application.

Thus, “supporting” should not be the primary basis of one’s evidence, but rather, that which further enlightens and advances the primary documentary evidence.  For example, statements from co-workers, photographs, and similar supporting evidence can be provided to OPM, but only if –and as — it enhances the primary documentation, which should be comprised of medical documentation from treating doctors, specialists, referral consultative medical providers, etc.  Even ancillary supporting documentation — SSDI approvals, VA assignation of disability ratings, OWCP acceptance, OWCP second-opinion doctor’s reports, etc — should be viewed as “supporting”.

It is important, as an aside, to recognize that the OPM Case Worker does not, and will not, expend hours upon hours reviewing every piece of document one submits, and therefore it is important to streamline and provide an efficient, effective presentation.

Think about it this way as a guiding principle:  If you approach a file which is an inch thick, or one which is 8 inches thick, which do you tackle on a Friday afternoon?

Sincerely,

Robert R. McGill, Esquire

Federal Employee Disability Retirement: Discretionary Decisions

In preparing, formulating and filing for Federal Disability Retirement benefits under FERS or CSRS, there are obviously the “basics” which one must submit, in order to meet the legal standard of proof of preponderance of the evidence.  

Thus, submitting “adequate” medical documentation which formulates a nexus between the medical condition upon which the Federal Disability Retirement application is based, and the essential elements of one’s job; writing the descriptive narrative to complete the Applicant’s Statement of Disability (SF 3112A), and filling out the other standard forms in order to meet the minimum requirements, are deemed “non-discretionary”, in that one does not have the choice of filing such paperwork  — it is a requirement.  

However, certain other documentation can be designated and categorized as “discretionary” —  whether to include certain medical conditions, and therefore medical documentation which bears upon the particular medical condition; whether to include paperwork from one’s OWCP, Department of Labor filing; Veteran’s Administration ratings, findings, medical documentation; Social Security Disability paperwork; additional statements from co-workers; Private Disability Insurance paperwork, etc.  

“Discretion” implies freedom to act or not act, but the problem will often arise, “In what context”?  Discretion is a wonderful, liberating position to be in; acting effectively in a discretionary manner requires research, and knowing the relevant criteria to apply in making a proper decision; and an understanding of the laws governing Federal Disability Retirement in making the “right” discretionary decision.  

Using discretion in making discretionary decisions is the key to obtaining a positive discretionary determination from the Office of Personnel Management.

Sincerely,

Robert R. McGill, Esquire

Postal and Federal Disability Retirement: Details

Ultimately, it is not the “devil” which is in the details; rather, the details of a Federal Disability Retirement application often determine the success or failure of a case.  

Attention to the details — of coordinating the Applicant’s Statement of Disability with the submitted medical reports and the legal/analytical arguments to be made; of distinguishing between “facts” and “arguments”; of anticipating any issues which an Agency might bring up; of making the determination as to which anticipated issues should be focused upon and preempted (if at all); of whether to utilize collateral sources of documentation, whether they be statements from a denied SSDI application or the ascription and allocation of a Veterans Administration disability rating; whether, if a concurrent OWCP case has generated a Second Opinion or Referee Medical Report; which medical reports to request and submit; which legal and analytical arguments to engage in at the outset; whether or not additional, non-medical but (potentially) supportive documentation should be attached — these are the details which make up for a devilish time.  

In preparing, formulating, and filing a Federal Disability Retirement application under FERS or CSRS, it is not a question of whether the details make any difference; for the most part, they constitute all the difference.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Workers: The Quantitative Approach

The problem with submitting a Federal Disability Retirement application under FERS or CSRS based upon the “quantitative approach” (submitting a voluminous medical file which, by the sheer weight, extent and thickness of the file, reveals the severity of the multiple medical conditions) is that it often fails to provide the proper bridge between the particular medical condition a Federal or Postal employee suffers from, and the impact upon the essential elements of one’s job.

Certainly, medical records, notes, diagnostic test results, etc., can provide a narrative delineation of one’s continuing medical conditions — but the question becomes, a narrative to what end?  The Office of Personnel Management will often review a large stack of medical documentation and simply conclude that there has been insufficient medical documentation, and further, that the medical documentation submitted fails to show that such conditions are severe enough to prevent one from perform one or more of the essential elements of one’s job. That is because the mere existence of a medical condition — no matter how extensive such medical conditions have required in terms of hospitalizations, testing, surgical or other procedures, etc. — is not enough to satisfy, by a preponderance of the evidence, the criteria applicable for eligibility for Federal Disability Retirement benefits under FERS or CSRS.  

Remember, always use the golden rule:  quality over quantity.  And in a Federal Disability Retirement application under FERS or CSRS, quality means the bridging of that conceptual gap between the medical condition, and the essential elements of one’s job.

Sincerely,

Robert R. McGill, Esquire