Federal Disability Retirement Attorney: Qualia & First Person Attribution of Mental States

Private, subjective mental states are unique by self-definition; they become public knowledge only when shared with deliberate intent, revealing the inner thoughts, private conceptual pondering, and narrative voices of the subjective “I”. Pain is similar in form, in that one can mask and keep private the experiential factor of pain, just as one can remain hidden in the private thoughts one engages.

Qualia, in philosophy, has to do with the subjective experience of one’s encounter with the greater world; and the first person attribution of a mental state encompasses the “I” in the midst of that universe of contained subjectivity. The problem always is how one can and should relate the private experience when a public narrative of that subjectivity is required.

For Federal and Postal employees who must file for Federal Disability Retirement benefits through the U.S. Office of Personnel Management, the problem of conveying in persuasive form and argumentation, of transversing the chasm between the “qualia” of one’s subjective mental state into the foray of medicine, diagnostic testing, clinical encounters with medical professionals, and the entire compendium of what constitutes the “objective” world, is a necessary prerequisite where the incommensurable wall must be overcome.

An effective OPM Disability Retirement application under FERS, CSRS or CSRS Offset, is like watching a gymnast on a balance beam; overstating the subjective may result in loss of that balance.  Federal employees and Postal workers who suffer from those specific medical conditions which are considered “unverifiable” through normal channels of diagnostic methodologies — Fibromyalgia, chronic fatigue, chronic and intractable pain, etc. — must find ways where the public description goes beyond the qualia of private mental attributes.

In many ways, we have progressed culturally; and such progressivism is found in the diminishment and near-extinguishment of that dualism between the cognitive and the physical, and this is established by the general acceptance of psychiatric conditions as being just as “valid” as physical maladies. But old haunts and biased perspectives still abound, and during such times of transition, one must still take care in how one approaches subjectivity in the wake of the yearning for objectively verifiable evidentiary components.

Like the public who watches the graceful movements of a gymnast on a balance beam, it is the roar of the crowd in appreciation one seeks, and not the gasp of disappointment when lack of balance results in a sudden and unexpected fall.

Sincerely,

Robert R. McGill, Esquire

 

Federal Employee Medical Retirement: Cartesian Bifurcation

Modern philosophy is often considered to have begun with the French philosopher, Descartes; this is perhaps unfortunate, for the resulting inward navel gazing which was precipitated and the subsequent conceptual bifurcation between mind and body, for which we must contend with and pay the price, to this day.

For the longest time, of course, there was a suspicion that psychiatric conditions were somehow less viable and more difficult to prove; this is perhaps as a result of a misconception and misunderstanding of that proof which constitutes “objective” data as opposed to “subjective” interpretations of any factual analysis.

In Federal Disability Retirement cases, the U.S. Merit Systems Protection Board has steadfastly rejected any notions of subjective/objective differentiation, especially when it comes to psychiatric medical conditions.  Fortunately for the Federal and Postal Worker who suffers from medical conditions such that the medical disability prevents one from performing one or more of the essential elements of one’s positional duties, the MSPB has repeatedly rejected OPM’s claim that certain medical evidence (clinical examinations and encounters with a psychiatrist, for instance) is merely “subjective”, as opposed to what they deem to be considered “objective” medical evidence.

Whether anyone at the U.S. Office of Personnel Management is aware of Descartes and the French philosopher’s profound influence upon the mind/body bifurcation is a matter of factual irrelevance; the important historical point to be recognized is the trickling down impact from theoretical discourses in academia, to the pragmatic application of concepts in bureaucratic administrative functions.

Descartes lives, and the echoes of his philosophical influence resounds and reverberates down into the hallways of the U.S. Office of Personnel Management, in the daily reviews of Federal Disability Retirement applications.

Sincerely,

Robert R. McGill, Esquire

Federal Disability Retirement Lawyer blog: Meeting the Legal Criteria

Lawyers often speak about “the law” as if it has the character of a science — of established principles which are objective, without the arbitrary influences of subjective interpretive devices or nuances. But even science itself fails any pure test of universal unalterability; one need only read Kuhn’s description of shifting paradigms in the history of science (The Structure of Scientific Revolutions) to understand that objectivity is merely another word for pragmatism. For, that which “works” or is “effective” in the eyes of the greatest number of people, is what matters to most people. That is why success is an irreplaceable harbinger of general opinion.

In the Federal government, one would like to expect application of rules, regulations, etc., somewhat in an algorithmic form, where favoritism is lacking, and where everyone has a “clean shot” at everything.

Especially when it comes to a benefit such as Federal Disability Retirement, which impacts those who are most unfortunate — one beset with a medical condition such that one can no longer perform all of the essential elements of one’s job — an expectation that an objective criteria which can be met by pure factual presentation, legal magnification of relevant statutes and laws, and perhaps some modicum of argumentation for persuasion, is what should occur in a perfect world. But as the proverbial perfect world fails to materialize, we must do with what we are given; subjective interpretation, and selective analysis are merely human frailties and imperfections.

That is why legal argumentation and countering of subjectivism must be employed.

Federal Disability Retirement, whether for FERS or CSRS employees of the Federal government, must be fought for, and “won”; there is no mathematical algorithm of objective application; there is no parallel universe of perfection; there is only the human condition, which requires interpretation, knowledge, analysis, and argumentation which persuades and cajoles.

Sincerely,

Robert R. McGill, Esquire

Federal and Postal Disability Retirement: The Pain Problem

The problem with pain is that, quite simply put, there is only one person who “owns” it — the pain-feeler.  One can describe it, ascribe adjectives which somewhat make it come alive for the listener; and even attempt metaphors and analogies that expand upon the limited universe of words as opposed to the physical sensation which creates havoc and turmoil in a person’s life.

There are numerical designations (“she consistently feels pain on the scale of 7/10 daily”) and words like “chronic”, “intractable”, and “severe” capture a sense of what a person undergoes; but in the end, these are merely word-games in comparison to the agonizing physical trauma which the person experiencing the pain must endure.

In preparing a paper presentation to the U.S. Office of Personnel Management in the form of a Federal Disability Retirement packet, whether under FERS or CSRS, chronic pain and the extent of how such pain prevents one from performing one or more of the essential elements of one’s job, is often problematic for the Federal or Postal employee who is contemplating such a venture.

It presents a challenge for two primary reasons:  First, because of the difficulty in translating a physical sensation into a clear and effective conceptual modality; and Second, because the audience to whom such a descriptive analysis is conveyed is quite likely attuned to, and therefore somewhat indifferent to, thousands of such descriptions, and thus may have a somewhat calloused view of such statements.

Overcoming the roadblocks and gaining the attention of an OPM case worker requires more than the mere meeting of the law; it demands overcoming the problem of pain — both medically, and administratively.

Sincerely, Robert R. McGill, Esquire

Disability Retirement for Federal Workers: Pain and the Fallacy of Objectivity

Pain by definition is “subjective”, if by it one means that the experiential verification of the condition is uniquely possessed by the “I”, or the subject of the experience.  By contrast, that which is deemed “objective” is presumably validated by more than the possessor of the experiential condition — i.e., by third parties; by testing for the validity and verification of an event through means other than the personal narrative of a singular subject.  Yet, if verification of an experience is accepted merely by sheer volume of a collective consensus, then most scientific revolutions in advanced discoveries would never have survived.

In Federal Disability Retirement law, it is often the argument of the U.S. Office of Personnel Management that the Federal or Postal applicant has failed to provide “objective” medical evidence in presenting his or her case.  The narrative of having a condition of “chronic pain”, or “severe pain” — being “subjective” by definition — is not deemed “objective“, and therefore cannot be the valid basis alone for a Federal Disability Retirement case (or so the argument by OPM is often presented).  Even the results of an MRI will not necessarily satisfy the scrutiny of OPM; for, ultimately, an MRI can only reveal an observable abnormality — not that a person experiences “pain”.

Fortunately, there are a number of cases in law which rebut OPM in their attempt to bifurcate between “objective” and “subjective”, and such legal tools should always be cited and applied in any Federal or Postal Disability Retirement application.

While pain may indeed be subjective by definition, the objectivity of a Federal Disability Retirement application should never be based upon what OPM deems as sufficient; rather, it is the law and the long history of legal guidance by the courts which should mandate how OPM acts.  Indeed, if we let OPM’s subjective determinations rule the day, we would all be left in an existential state of pain — one which would then result in a collective consensus which may be deemed objective in nature.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: The Law

I will be writing an article of greater length on this issue, but suffice it for now that when “the law” works, it works well. A major second case has been decided in favor of the Federal employee — first, it was Vanieken-Ryals v. OPM, 508 F.3d 1034 (Fed. Cir. 2007), and now, Sylvia M. Reilly v. OPM, decided July 15, 2009. Vanieken-Ryals toppled the irrational imposition of a baseless standard by OPM — that there is a distinction to be made between “objective” as opposed to “subjective” evidence concerning medical evidence (example of the absurdity: How do you prove the existence of pain? While an MRI may show a physical condition, you cannot prove that such a physical condition equates to debilitating pain, leaving aside any quantification of pain. Similarly, how do you prove the existence of Major Depression? Anxiety? Panic attacks?).

Now, Reilly v. OPM has toppled another idol of a false standard imposed by OPM: that medical documentation which post-dates separation from Federal Service is near-irrelevant. This has never made sense, for at least 2 reasons: first, since a person is allowed to file for Federal Disability Retirement within 1 year of being separated from service, why would medical documentation dated after the separation be considered irrelevant? Second, medical conditions rarely appear suddenly. Most conditions are progressive and degenerative in nature, and indeed, that is what the Court in Reilly argues. Grant another win for the Federal employee, the law, and the process of law. It makes being a lawyer worthwhile when “the law” works.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: The Case of Fibromyalgia

Fibromyalgia is one of those medical conditions that the Office of Personnel Management systematically “targets” as a condition which is prima facie “suspect”. This is despite the fact that there are cases which implicitly “admonish” OPM from engaging in the type of arbitrary reasoning of denying a disability retirement application because they “believe” that “no objective medical evidence” has been submitted, or that the “pain” experienced (diffuse as it might be) is merely “subjective”, or that the chronicity of the pain merely “waxes and wanes”, and a host of multiple other unfounded reasonings. Yet, cases have already placed a clear boundary around such arbitrary and capricious reasonings.

A case in point, of course, is Vanieken-Ryals v. OPM, a U.S. Court of Appeals for the Federal Circuit case, decided on November 26, 2007. In that case, it clearly circumscribes the fact that OPM can no longer make the argument that an Applicant’s disability retirement application contains “insufficient medical evidence” because of its lack of “objective medical evidence”. This is because there is no statute or regulation which “imposes such a requirement” that “objective” medical evidence is required to prove disability. As long as the treating doctor of the disability retirement applicant utilizes “established diagnostic criteria” and applies modalities of treatment which are “consistent with ‘generally accepted professional standards'”, then the application is eligible for consideration. Further, the Court went on to state that it is “legal error for either agency (OPM or the MSPB) to reject submitted medical evidence as entitled to no probative weight at all solely because it lacks so-called ‘objective’ measures such as laboratory tests.” Statues are passed for a reason: to be followed by agencies. Judges render decisions for a reason: for agencies to follow. Often, however, agencies lag behind statutes and judicial decisions. It is up the an applicant — and his or her attorney — to make sure that OPM follows the law.

Sincerely,

Robert R. McGill, Esquire