Federal Disability Retirement: Reconsideration Selectivity

Perceptual selectivity is an adaptive process of some evolutionary benefits; otherwise, the voluminous extent of bombarding stimuli would be too much to process and digest. We naturally focus upon certain perceptual activities; perhaps it is the brighter colors, the more aggressive movements, the objects which seem to portend potential threats, etc.  In modern societies, where attacking cougars and lions are merely mythological stories of the past (except perhaps out West, where such events still abound), selective excision occurs more often in the context of linguistic extraction.

U.S. Office of Personnel Management:  Disability, Reconsideration and Appeals Group

For Federal and Postal Workers who file for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether the Federal or Postal employee is under FERS or CSRS, the process of selective extrapolation and argumentation can be a frustrating encounter when a denial of one’s Federal Disability Retirement application is issued by the U.S. Office of Personnel Management at the initial stage of the process (and even at the Reconsideration Stage).

It is indicative of the decision-maker’s mindset, and not necessarily as a consequence of the proof submitted.  There may be quotations extracted from medical reports and records seemingly supportive of a denial, while all the time ignoring countervailing wording and opinions which contradict or otherwise reverse the unsupportive statements.

Selectivity in the endeavor to find support for one’s position is simply something that people do.  You may cry out, “But where is the objectivity which is supposed to exist?” Objectivity is a learned process, achieved through discipline and intellectually rigorous self-effacement; selective bias, on the other hand, is the natural default position resulting from the evolutionary vestiges of man’s former state of existence. The residue of man’s natural state will always remain; but with the camouflage of sophistication presented in modern society, selectivity of purpose can mask our former state of brutish behavior.

For those encountering such selective processes in a denial from the U.S. Office of Personnel Management, the road to counter it is to argue the compendium of fact, law and full context of medical opinions, in preparing a full counterattack representing a viable refutation. In the end, the attempt at selectivity of facts and the law can easily be rebutted; but it often takes an awakening of the other’s evolutionary tendencies — of a potential threat of stimuli through the aggressive use of the law — which will result in a victory via an award of one’s Federal Disability Retirement benefits from the U.S. Office of Personnel Management.

Sincerely,

 

Robert R. McGill, Esquire

 

 

Medical Retirement for Federal Workers: To Just Walk Away

One suspects that the U.S. Office of Personnel Management “plays the odds” and finds that a certain percentage of the population will accept at face-value the stated basis of a denial of a Federal Disability Retirement application, regardless of the lack of substantive basis for such a denial.  And, indeed, there will be a segment of the population, within the entire universe of Federal and Postal employees who submit a Federal Disability Retirement application, who will simply feel discouraged, and simply give up.

This is precisely why, in many administrative processes, there is an automatic first-level denial.

FERS & CSRS Disability Retirement is somewhat different, and one would assume that there is no internal mechanism of automatically rejecting a submission at the initial stage of the application, because the merits of each case should be determined at each stage of the process.

Nevertheless, it would be “prudent” for the U.S. Office of Personnel Management to take such an approach, if only to test the determination and seriousness of each applicant.  This is not to allege that such an approach is deliberately engaged in by OPM; rather, whether on a valid basis or not, there is nevertheless the likelihood that a certain percentage of Federal Disability Retirement applicants who are denied at the first stage, will simply walk away, not fighting for a benefit which they may well be eligible for.

And, of course, “walking away without a fight” is certainly an option for everyone; not a very viable one, and one which should not be recommended.  The sad part, of course, is that the very basis for not having “the fight” to contest an OPM denial, is often the same basis for which the Federal or Postal worker filed for Federal Disability Retirement benefits in the first place:  the medical condition itself, and the debilitating manifestations which have weakened the human spirit to persevere.

Sincerely,

Robert R. McGill, Esquire
Postal & Federal Employee Attorney

 

Postal and Federal Disability Retirement: Selective Extrapolation

The game of selective extrapolation is played by many; there was a time when such a methodology — otherwise known as taking something “out of context” — was with simplicity and bluntness identified for what it is:  dishonest.  But in this day and age, it has come to be accepted, and even applauded, for such characteristics as “aggressiveness” and “smart play”.

Once, in an age where integrity and fidelity were upheld as character traits worthy of emulating, there was an affirmative duty to “tell the whole story” — that if X quoted from a document in fragmented form, it was one’s duty to provide the entirety of the context in order to be “fair”.  Perhaps it is the adversarial nature of the legal arena which allowed for this standard to change; or perhaps it is just part of the greater deterioration of the culture; in any event, in modern times, it is an accepted practice to merely take sentences, words, concepts and phrases out of context, and twist and mangle them to whatever form and usage will gain one’s advantage.

In Federal Disability Retirement law, especially in the context of a denial issued by the U.S. Office of Personnel Management, one will often find the use of selective extrapolation — of taking a lengthy, comprehensive medical report of a doctor, and choosing to quote an almost-irrelevant statement which seems to support a negative or opposite conclusion from that which the doctor has stated.  At first glance, one merely scratches one’s head with puzzlement; but after the initial shock, it must be recognized for what it is:  an attempt to merely justify the denial of a Federal Disability Retirement application.

How to rebut it?  Fortunately, the rebuttal is not made to the same individual who played the game of selective extrapolation; that would obviously be an act of futility.  The rebuttal must be forceful and head-on; call it for what it is, and provide the correct content and context.

In Federal Disability Retirement law with the U.S. Office of Personnel Management, whether under FERS or CSRS, one must prove by a preponderance of the evidence that one is entitled to Federal Disability Retirement benefits.  In order to do so, one must maintain a level of integrity which reveals the sharp contrast to those who engage in such games.

It is sometimes difficult to refrain from playing the other person’s game; but in the end, let’s hope that age-old standards of integrity and fair play will continue to win out.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Medical Disability Retirement: The Aggregate of Conditions

In debate, there are two primary methodologies of attacking:  the micro-approach, where each individual strand of an opponent’s argument is dismantled, leaving the opposition with no singular weapon to use; or the macro-approach, where — because some of the individual arguments may withstand scrutiny — the universal umbrella of the argument as a whole is attacked, thereby dismantling the entirety of the whole.

In preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, OPM will utilize one of the two approaches.  At times, OPM will selectively choose one or two of the medical conditions, barely mentioning the rest, then attack the lack of documentary support on those particularized medical conditions.  Or, at other times, OPM will make sweeping generalizations and fail to specifically identify, and selectively ignore, the details of individual medical conditions.  Regardless of the methodology of approach, the ultimate result of either approach is a denial.

The question is how one responds to either approach.

The answer is often based upon the construction of the Applicant’s Statement of Disability.  This is where it is important to weave the particular with the aggregate, where the construction of each individual medical condition is argued to depend upon the greater whole, and where the cumulative impact of the various medical conditions constitute an inseparable whole.  The flexibility of language allows for this; the medical narrative report should reflect this.

This is why spending valuable time at the front end of a Federal Disability Retirement case is important; for the later stages of the administrative process may well depend upon it.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement for Federal and USPS Workers: Office Notes

The Office of Personnel Management, in reviewing a Federal Disability Retirement application under either FERS or CSRS, will often request to see the doctor’s office/progress notes, detailing the history of treatment for the previous 18 months.

Such scrutiny of clinical notations made by the treating doctor is meant to verify and validate the statements made by the doctor in his or her medical narrative report, to see if there are internal contradictions between the clinical notes and the narrative report prepared for purposes of obtaining Federal Disability Retirement benefits.  Such a review of clinical notes can be an unfair process, precisely because they are being reviewed with a paradigmatic purpose in mind:  to “find” any inherently contradictory remarks or evidence which conflicts with statements made in the primary medical report.  

Thus, reviewing the medical notes in a vacuum, outside of the context of the entirety of treatment, and with the intention and motive of seeking out any “discrepancies”, will sometimes result in a denial based upon selective interpretation of the office/progress notes.  Statements such as, “medications are helping”, “patient notes feeling better”, “Is sleeping much better”, can provide a false picture of the actual progress of the Federal Disability Retirement applicant.  Indeed, such a skewed picture will often come up in the denial letter issued by the Office of Personnel Management, where the denial letter will selectively quote from the progress notes.

This reminds one of a particular case where the Office of Personnel Management quoted from clinical notes, statements made by the applicant:  “Feeling much better”; “Making great progress”; “overall doing very well.”  The problem, however, is that the applicant was permanently in a wheelchair, and the job was that of a Law Enforcement Officer.  It was denied at the Initial Stage; at Reconsideration, when the pertinent facts were pointed out to OPM, it was quickly approved.

Sincerely,

Robert R. McGill, Esquire

Federal Disability Retirement: Making it Easy for OPM

Whether inadvertently or not, an Applicant who has formulated, prepared and filed a Federal Disability Retirement application either under FERS or CSRS will make it easy for the Office of Personnel Management to deny a case.  

Thus, for instance, on the Applicant’s Statement of Disability, where the applicant is asked concerning the status one is in at the agency, if the applicant agrees with the Agency or the Supervisor that the Agency has “accommodated” the individual in his or her employment, then the Office of Personnel Management will often focus selectively upon that answer and argue that, inasmuch as X has stated that the employee has been accommodated, and Y (the employee — you) has agreed with the agency, therefore Y is not eligible or entitled to Federal Disability Retirement benefits because Y has been accommodated.  

But, as it has been previously stated on multiple occasions, the term “accommodation” is a technical term of art, and if one fails to appreciate the nuances of the term, the applicant who is filing for Federal Disability Retirement benefits under FERS or CSRS can fall into the trap of using the term in a non-technical, general way, and thereby defeat one’s own application for Federal Disability Retirement benefits.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: The Workplace (Part 2)

In filing for FERS or CSRS Federal Disability Retirement benefits with the Office of Personnel Management, it is important to stay away from issues which may explicitly or implicitly characterize the particular medical condition as being “situational” in nature.  However, this does not mean that the medical condition cannot have originated from, or been exacerbated by, the workplace environment.  Remember that OPM disability retirement is not like OWCP/Worker’s Comp — the issue of causality, or whether the medical condition occurred as a result of your occupation, is not important to prove. 

However, sometimes, it is simply an indisputable fact that the medical condition originated from the workplace, or was exacerbated by conditions in the workplace.  Such origination or exacerbations, once it takes on a “life of its own” and becomes chronic and pervasive such that the medical condition impacts a person both at the workplace as well as outside the workplace, then it has transformed into a medical condition beyond being merely “situational”.  Thus, that which originated as a “situational” medical condition may well no longer be a situational one.  In such cases — and that is normally the case in almost all medical conditions which begin as a situational disability — there would be no problem with filing for OPM disability retirement benefits.

Sincerely,

Robert R. McGill, Esquire

Federal Disability Retirement: OPM’s Detailed Denial

Neither length nor detail constitutes legitimacy.  The spectrum of the types and styles of denial letters issued by the Office of Personnel Management in Federal Disability Retirement cases under FERS & CSRS range from a short paragraph under the “Discussion Section”, to 3 – 4 pages of apparent references to doctor’s notes, reports, etc. — with a lengthy lecture about the need for “objective” medical evidence, and about how a particular medical condition “may be” treated by X, Y or Z treatment modalities. 

Don’t be fooled.  One may think that, because OPM provides a seemingly “detailed” explanation of why a particular disability retirement application was denied, that such lengthy detail means that it is somehow “substantive”.  In fact, I often find the opposite to be true:  the shorter the denial, the greater the substance.  The lengthy denial letters contain “substance”, all right — but substance of the wrong kind.  They contain:  Mis-statements of the law; mis-statements of the criteria to be applied; inappropriate assertions of medical opinions (contrary to what one might think, the OPM representative does not normally have a medical degree, let alone a law degree), and a host of other “mis-statements”.  Sometimes, the weightier the denial, the more confusing as far as how to respond.  And, perhaps, that is one methodology as to how OPM wants to approach the case:  If it seems long and complicated, maybe the applicant will sigh, give up, and go away.  Don’t.

Sincerely,

Robert R. McGill, Esquire