Federal and Postal Disability Retirement: Leverage

The ability to negotiate an advantageous settlement of an issue is dependent not merely upon the possession of leverage, but upon the effective use of that leverage.  Such effective usage would require, first and foremost, a dual presentation:  First, recognition of the value of such leverage, and second, the ability to have the opposing party believe that the value is exponentially exaggerated.  Once these dual components are satisfied, one can be assured that a favorable settlement can be reached.

In preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, one often finds that the Federal or Postal employee is involved in multiple facets of collateral litigation or adverse actions with the Agency.  As part of a “global settlement” of legal issues, the agency will inevitably offer the Federal or Postal employee a “disability retirement”.  Yet, the first recognition of order which the Federal or Postal employee must address, is the fact that the agency is not the entity which can grant a Federal Disability Retirement.  Only the U.S. Office of Personnel Management can grant or deny a Federal Disability Retirement application to the Federal or Postal applicant.

Can the support of the agency help?  Yes — if formulated properly.  Be aware, however, as case-law supports OPM’s contention that settlements of collateral issues should not be used as a basis for obtaining the support of an agency in an application for Federal Disability Retirement.  A balancing act must be adopted.  And, as always, Federal Disability Retirement is first and foremost an issue of one’s medical condition.

Sincerely,

Robert R. McGill, Esquire

Federal and Postal Disability Retirement: The Agency which Decides

These days, the chasm between language, truth and reality has widened to where the bifurcation and distinction between each has resulted in a lack of any significant relationship between them; or, conversely, each has become identical with the other, which amounts to all the same if one pauses to reflect upon it.

Once upon a time, prior to Bertrand Russell’s mischievous offering of a conundrum with the statement, “The King of France is bald” (for, as there is no King of France, and therefore there can be no bald King of France; yet, how is it that such a statement can nevertheless have meaning?  Ergo:  language need not have any relationship to truth or reality); the prevailing operative theory involved the correspondence theory of truth, where statements were said to correspond to the noumenal world around us.

In the practical world, the weight which keeps us grounded is based upon the extent of responsibility one must accept.  Thus, in preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, it is precisely the agency to whom a Federal Disability Retirement application is submitted which the Federal or Postal worker should be focused upon.  It is the U.S. Office of Personnel Management — OPM in acronym form — which should guide and dictate how a Federal or Postal worker should act, react, and correspondingly prepare for.

While agencies will attempt to pressure the Federal or Postal worker into hastily preparing a Federal Disability Retirement application for their own purposes, the Federal or Postal worker must always realize that if OPM denies a claim, you cannot go back to your agency and say, “See, you made me do X, Y and Z, so now it is your problem.”  No, the Agency will not take responsibility; it is between OPM and the Federal or Postal Worker.

Therefore, act accordingly; do not unwisely and hastily be pressured to prepare or formulate a Federal Disability Retirement case just because the agency wants the positional slot vacated.  Do it properly; take the necessary time; get legal counsel; otherwise, you may in fact have to meet the bald King of France.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Medical Disability Retirement: The Audience

Knowing one’s audience is important in determining the content and manner of a performance, a submission, or a presentation.  Such knowledge allows one to tailor the level of sophistication and informational complexity in order to maximize the effectiveness of that which is being presented.  Certain assumptions can come into play in assessing the audience:  the level of intellectual sophistication; content-appropriate substantive determinations; certain preemptive issues and whether a given element needs to be addressed before it is brought up.

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 often instructive that the Federal or Postal employee will formulate and put together a Federal Disability Retirement packet as if one’s own agency will be the deciding arbiter — and therefore an explanation of certain actions of the agency will be preemptively rebutted when no such explanatory delineation is necessary.

Yes, while it is true that if one has not been separated from Federal Service, or has been separated but not for more than thirty one (31) days, that the Federal Disability Retirement packet must be processed through the Agency Human Resources Department; and, yes, the agency itself does include its input through the completion of certain forms and insertion of additional information; nevertheless, the Federal Disability Retirement packet is decided by the U.S. Office of Personnel Management, and not by the agency for whom one works.

This minor distinction is important, for it will determine at the outset the perspective, tone and tenor of the Federal Disability Retirement application.  Knowing that the chip on one’s shoulder should be set aside because the audience is no longer the neighborhood bully, will go a long way in preparing an effective Federal Disability Retirement application.

Sincerely,

Robert R. McGill, Esquire

Postal and Federal Disability Retirement: Affirmative Proof

It is a single agency — the U.S. Office of Personnel Management, and specifically the Disability, Reconsideration and Appeals Division — which makes the determination on all Federal and Postal Disability Retirement applications.

It is not the agency (although the agency can provide some nominal assistance on some peripheral issues); it is not the U.S. Postal Service; it is not the Human Resources Department of the agency (the personnel of whom will often claim that they have processed “thousands” of such submissions and never had one rejected); and it is certainly not the H.R. Shared Services office of the U.S. Postal Service in Greensboro, N.C. — these are not the Federal or Postal entities which make a determination upon a Federal Disability Retirement application under FERS or CSRS.

In preparing, formulating and filing for Federal Disability Retirement benefits under either FERS or CSRS, it is the affirmative duty of the applicant — the Federal worker employed by a Federal agency; or the U.S. Postal Worker — who must prepare the case, formulate the content of the proof and arguments to be used; and ultimately file the case, either through the agency if the Federal or Postal employee is still employed or any separation from Federal or Postal Service has been less than thirty one (31) days; or, if the Federal or Postal worker has been separated from Federal Service for more than thirty one (31) days, then to file it directly with the U.S. Office of Personnel Management, and to do so within one (1) year of being separated from Federal Service.

The proof to submit must be affirmative — meaning, thereby, that it addresses each of the legal criteria necessary to be found “eligible” for Federal Disability Retirement benefits.  You cannot rely upon the agency, third parties or other entities to do this; it must be done by the particular “you”, or if the referential point is reversed, by the “I”, as in the Federal or Postal employee.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Government Employees: OPM, Authority & Rights

The decision-making process in filing a Federal Disability Retirement application under FERS or CSRS is placed into the hands of an administrative agency known as “The Office of Personnel Management“.  

OPM, as the acronym which the agency is known by, is the administrative bureaucracy which makes a determination on each individual Federal Disability Retirement application, after reviewing the submitted medical records, Statement of Disability as formulated and presented by the Applicant and his or her Attorney; the Supervisor’s Statement; The Agency’s Efforts for Reassignment and Accommodation — in other words, the full compendium of the evidence, based upon a legal standard which is low on the totem pole of legal standards — that of “Preponderance of the Evidence“.  

It is helpful to understand that the Office of Personnel Management is merely following the statutory procedures as created and mandated by law:  OPM, as the first-line administrative agency, must make an initial determination on a Federal Disability Retirement application under FERS or CSRS, not because they want to, desire to, like to, etc. — but because they are the designated entity set up to do so.  They have the “authority” under statutory mandate to make a determination of eligibility at the “First Stage” of the process, as well as at the “Second Stage” (the stage often known as the “Reconsideration Stage”) of the process.  

As an inverse matter, however, the individual Federal or Postal applicant has the “right” to dispute any negative determination made by the Office of Personnel Management at either of the first two stages of the process.  

It is important to distinguish between the conceptual differences and distinctions between “Authority”, “Rights”, and the use of the term “right” as in “right or wrong”.  OPM has the authority to make an eligibility determination on a Federal Disability Retirement application because they are statutorily mandated to do so; the individual Federal or Postal employee has the right to appeal such a decision; the fact that OPM may have the right to deny a Federal Disability Retirement application under FERS or CSRS does not mean that they are “right” in doing so; they merely have a statutory authority, and nothing more.

Sincerely,

Robert R. McGill, Esquire

Medical Retirement from the Office of Personnel Management: Legal Criteria

There is “The Law” — the originating, statutory authority which is passed by Congress — then, the compendium of the entirety of the legal arena, which includes decisions handed down by Administrative and Federal Judges, which comprise the expanding and evolving interpretation, clarification and extension of “The Law”.  

Unfortunately, in making its decision on an Application for Federal Disability Retirement benefits under FERS or CSRS, the Office of Personnel Management constrains itself (and its knowledge of the law) to a template based upon a “7-part criteria” which is extrapolated from the Code of Federal Regulations.  

This 7-part criteria is a simplistic and misleading application of the law.  It is not so much that it is an “error” on the part of the Office of Personnel Management to apply such a criteria; rather, it is that, in evaluating and determining the sufficiency, viability, and meeting of the standard of proof of “preponderance of the evidence” of a Federal Disability Retirement application under FERS or CSRS, it simply does not go far enough.  Because the 7-part criteria fails to include the interpretive evolution of the entirety of the laws governing Federal Disability Retirement, it fails by excluding many Federal Disability Retirement applications which are based upon legal criteria which fall outside of the delimited circumference and parameters of what OPM has set forth. 

In short, they are “behind the times” in many instances, and so when a denial is based upon a misapplied criteria, it is important to point out to OPM that X law applies in particular case Y — where “X” is outside of the scope or knowledge of the Office of Personnel Management.

Sincerely,

Robert R. McGill, Esquire

Medical Retirement Benefits for Federal & Postal Employees: What the Agency Can Do

It is always striking (and suspicious, of course) when an individual tells me that his or her Agency has said that they will “OK” the Federal disability retirement application.  I always remind the individual that it is not the Agency; rather, it is the Office of Personnel Management which approvals or denies an application for Federal Disability Retirement benefits under FERS or CSRS. 

In many ways, the Agency attempts to assert for itself greater influence and impact than it really has.  I try and remind people all the time that a Federal Disability Retirement application is a medical retirement application — it is not an Agency retirement application; it is not a Supervisor’s disability retirement application; it is not up to the Human Resources’ Department of the Agency. 

The ultimate arbiter of the entire process is the Office of Personnel Management; and the criteria for eligibility is based upon a set of statutory requirements, which must be met by a preponderance of the evidence; and the overwhelming focal emphasis concerns the medical eligibility. 

Agencies are too often given too much credit for the success or failure of a Federal Disability Retirement application under FERS or CSRS.  In my view, the influence, input and power of an agency is almost always overstated.

Sincerely,

Robert R. McGill, Esquire