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Disability Retirement and the Law Today by Robert R. McGill

Robert McGill: I am an Attorney who represents Federal and Postal workers from all across the United States, including Alaska, Hawaii and Puerto Rico.  I do not charge for telephone consultations.  If you would like to contact me, you may call me at 1-800-990-7932,   I also advertise in the Attorney Directory of the Federal Times. www.federaldisabilitylawyer.com

 

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When does one know that a journey has come to its end? In a physical sense, in reaching one’s destination; in a spiritual sense, in fulfilling one’s destiny.
-- Cho-Tzu, The Sage of Time


FERS & CSRS Disability Retirement: Finding the Paradigm of an Effective Lexical Nexus (August 7, 2013)


Like all administrative procedures and processes, Federal Disability Retirement has a set of eligibility criteria which must be met, based upon a “preponderance of the evidence” standard, in order to qualify. At its most basic level, a nexus (otherwise defined as a linguistic connective tissue) must be formulated and established between two conceptual islands: (A) The existence of a medical condition, and (B) evidence establishing an impact upon one or more of the essential elements of the Federal or Postal position which one occupies, such that the Federal or Postal employee (both are under the same retirement system of FERS or CSRS) is prevented from performing at least one, if not more, of the essential elements of one’s job.

As OPM will often argue rhetorically, “The existence of a medical condition standing alone is insufficient for the applicant to become eligible for disability retirement benefits.” This implies, of course, the mistake which is often made by Federal and Postal employees preparing and formulating a Federal Disability Retirement application, whether under FERS or CSRS – that of presuming that one’s medical condition is sufficiently severe and self-evidently catastrophic such that the mere submission of documentation identifying the condition – while clearly establishing (A) above (the existence of the medical condition) – thereby automatically implicates the nexus to (B) above (impact upon the essential elements of one’s Federal or Postal job). Never presume, assume, or accept as implicit that which must be conveyed explicitly. In other words, one must always make obvious that which potentially remains obfuscated.

The question, then, is how one goes about creating a “nexus” between (A) and (B). For, the law essentially recognizes two fundamental approaches in establishing the connection between one’s medical conditions, and the essential elements of one’s positional duties or functions. In the recent U.S. Merit Systems Protection Board Case, Henderson v. OPM, decided on January 31, 2012, Docket No. DC-831E-10-0812-I-1, the Board addressed the issue of the two primary approaches to meeting the statutory requirements for Federal Disability Retirement eligibility: (1) showing that the medical condition caused a deficiency in performance, attendance or conduct or (2) by showing that the medical condition is incompatible with useful and efficient service or retention in the position. One may generally describe the two approaches in the following manner: the former methodology is fact-specific, while the latter one is more generic in nature.

Fact-specificity, of course, is often interpreted as applying an algorithm-like methodology of corresponding ratios – as if medical condition X can be correspondingly ascribed to essential element Y in a mathematically precise manner. Now, at its most foundational instance, the question is then often posed as to what constitutes an “essential element”. For, in order to effectively show a correspondence between X and Y, one must first identify what each factor constitutes. There are a variety of methodologies in which to answer such a query: one may extrapolate from the official position description (which is quite obviously an intelligent approach, inasmuch as the Federal or Postal employee is retiring from one’s position, and not from what one may or may not actually be doing in that position; and, furthermore, it is the Office of Personnel Management which makes the decision, based upon a “paper presentation” to them – a separate agency from the one the Federal or Postal Worker is employed by, and therefore unfamiliar with what the Federal or Postal Worker actually does or doesn’t do in such a position); but beyond such extrapolation, there are “common sense” elements which are quite obviously “essential elements”. For example, if one is an Information Technology Specialist for the Department of Veterans Affairs, then quite naturally an essential element of such a position would include the physical ability to remain sedentary for extended periods of time; or, if you are a Letter Carrier for the U.S. Postal Service, a self-evident essential element would include the ability to walk for several miles each day, on hard concrete surfaces and uneven terrain. Thus, “essential elements” will always include an admixture of commonly known factors, as well as detailed technical aspects only found in the official position description.

Beyond identifying the essential elements of one’s position, however, one may encounter numerous problems in attempting to delineate a fact-specific description of a deficiency in performance, attendance or conduct, and the problem with such an attempt is that, more often than not, supervisors and agencies “give a pass” to the great multitude of employees because to do otherwise will only invite grief and adversarial enmity. Thus, despite reflecting poor performance (attendance is obviously another matter which can be factually established by revealing the amount of sick leave or annual leave left accrued, and the extent of LWOP already taken or currently being taken, as a gross and aggregate number to show a corresponding inability to come to work; and conduct, in many cases, will reveal a record of adverse actions initiated by the Agency), one may lack an adequate trail of evidence to establish through fact-specificity the connection between one’s medical condition and a deficiency in performance. Furthermore, any attempt to provide a 1-to-1 ratio of a specific-medical condition to a specific-essential-element is going to invite OPM’s rebuttal through rhetorical argument. Obvious ones – e.g., loss of visual acuity for a munitions inspector at an Army Depot – are rare for the treating doctor to systematically correspond a particular medical condition to a job-specific critical element. We are thus left remaining, more often than not, with the “second” approach – the incompatibility criteria.

And, indeed, an ability to establish the existence of an incompatibility, or “inconsistency”, between a coalition of medical conditions (most disability retirement applicants have multiple medical conditions, and allow for the compounding of complex conditions to aggregate into a debilitating whole, making it further of greater difficulty in establishing a 1-to-1 correspondence because often such composites of complex medical conditions are difficult to separate and ascribe) and the essential elements of one’s job description, can be accomplished with greater ease by (A) a medical report which explicates a working knowledge of one’s Federal or Postal job duties, (B) a detailed medical evaluation, based upon numerous clinical encounters, delineating the diagnoses and the manifested symptoms of the patient, and (C) the lexical nexus explaining the incompatibility between (A) and (B). How detailed should this be? Again, that which is implicit is potentially unclear; that which is unclear is subject to greater objection and obfuscation, and ultimately creates a rebuttable argument for the U.S. Office of Personnel Management.

In the end, one must always remind oneself that the Federal or Postal Disability Retirement applicant always has the burden of proof. As such, to prove a Federal Disability Retirement application based upon a preponderance of the evidence, one must always present a cohesive, comprehensible and streamlined presentation of the lexical nexus to the deciding agency – the U.S. Office of Personnel Management. Clarity is required; cogency is necessary; and always, the binary tissue of establishing the causal connection between one’s medical condition and the impact upon the essential elements of one’s duties is the primacy of the penultimate construct on a road to a successful outcome: approval of one’s Federal Disability Retirement by the U.S. Office of Personnel Management.

     I am an Attorney who represents Federal and Postal workers from all across the United States, including Alaska, Hawaii and Puerto Rico. I do not charge for an initial telephone consultation; thus, if you believe that you need to consult an attorney concerning Federal Disability Retirement, please contact me in one of these ways:

·         View the Federal Disability Retirement blog or the U.S. Postal Service Disability Retirement blog

·         Email me at federal.lawyer@yahoo.com

·         Call me at 1-800-990-7932


Sincerely,

Robert R. McGill, Esquire


 

 

The sweetness of a bird is revealed by its singing; the ferociousness of the tiger, by its loudness; but for man, the spoken word is defined by the truth which is revealed, and not by its sweetness, nor by its loudness. --  7th Century Chinese Proverb

 Federal Disability Retirement for the Federal and Postal Worker:  Beyond being unable to perform useful and efficient service (March 7, 2013)

      Federal Disability Retirement is a compensatory benefit available for all Federal and Postal employees under FERS or CSRS, who have a minimum of 18 months of Federal Service under FERS, or five (5) years of Federal Service under CSRS.  It is not a benefit which is widely advertised, and indeed, it is surprising how so many people believe it to be identical to Social Security Disability benefits.  Beyond a lack of knowing about the benefit itself, however, is the problem of understanding the legal criteria necessary to become eligible for Federal Disability Retirement benefits. 

      Such legal criteria allows for the Federal or Postal employee to become eligible if one can prove that the medical condition prevents one from being able to perform one or more of the essential elements of one’s official, positional duties.  Thus, the standard for eligibility falls far below the necessary requirements to become approved for Social Security.  Yet, if one were to make an initial investigation of OPM’s (an acronym for the U.S. Office of Personnel Management) website, you would come away with a clear misimpression of the legal requirements necessary for eligibility.

      5 U.S.C. Section 8451, Subsection (a) (1) (B) states that an employee will be considered disabled if the employee is found “to be unable, because of disease or injury, to render useful and efficient service in the employee’s position.”  Taken in a vacuum, such a statement leaves much to be interpreted, and to such a wide extent that anyone first approaching such a statute would become immediately discouraged as to the eligibility provisions, the chances of success, and hurdles to be overcome in being able to successfully obtain Federal Disability Retirement benefits.  Indeed, this is often the line which the U.S. Office of Personnel Management will use in their litany of template-driven statements in denying a Federal Disability Retirement application:  “You have not proven that you cannot perform useful and efficient service in your position.”

      But what does “useful and efficient service” mean?  In common parlance, there could be a wide range of interpretations in both the bifurcated concepts of “useful” and “efficient”.  Indeed, an inoperative automobile can be “useful”, if only to irritate one’s next door neighbor by being an eyesore to the aesthetically displeased; and a one-armed Postal Worker is relatively more “efficient” than the absence of the worker altogether, inasmuch as a warm body is better than two in a coffin.  Thus, when the U.S. Office of Personnel Management argues from the original language of the Statute itself, they are “technically” correct, but in a devious sort of way.  For, ultimately, there is a long history and body of case-law which has elaborated upon the definition of what “useful” and “efficient” mean – but OPM is not about to provide the details of such historical elaboration.  Instead, they will act as though the Model T Ford is still the car of today.

      But clearly, the Model T Ford – while an admirable automobile in the context of antiquity and the evolution and advancement of technology and automated systems of today – is not the same, or even similar, to the automobile of modernity.  If an alien were to arrive in this country and ask someone, “Show me a car”, one would not likely point to a Model T Ford, unless it was to impress one with a collection of antique automobiles.  Similarly, to merely point to the originating statute in providing information about the eligibility provisions for Federal Disability Retirement benefits, is to reveal little, and hide much.

       To provide a brief overview in explaining the contextual misapplication of OPM, we can look first at the well-known case of Bruner v. Office of Personnel Management, 996 F.2d 290, 293 (Fed. Cir. 1993), where the U.S. Court of Appeals there reiterated the applicable standard for disability retirement determinations, stating therein that one of the criteria was the demonstration of a “deficiency in service with respect to performance, conduct or attendance, or in the absence of any actual service deficiency, a showing that the medical condition is incompatible with either useful service or retention in the position.” (Emphasis added)  Here, of course, is a further expansion of the original statute – for, with the conceptual introduction of the term, “incompatibility”, there is now a further elaboration, if not clarification and modification of the key term, “useful”.  For, here, Bruner explains that if the Federal or Postal employee can show that one’s medical condition is incompatible with providing “useful” service, then one may be eligible for Federal Disability Retirement benefits.

      Then, jumping further (in article-writing, time-travel is a prerogative of the author, where large chunks of time and skipping over dozens of other relevant legal cases are allowed), in Bracey v. Office of Personnel Management, 236 F.3d 1356,

1358 (Fed. Cir. 2001), the Federal Circuit Court further delineated and outlined the applicable provisions governing disability retirement, stating that “the pertinent OPM regulation elaborates on the statutory definition by providing that an employee is eligible for disability retirement only if (1) the disabling medical condition is expected to continue for at least one year; (2) the condition results in a deficiency in performance, conduct, or attendance, or is incompatible with useful and efficient service or retention in the employee’s position; and (3) the agency is unable to accommodate the disabling condition in the employee’s position or in an existing vacant position.”   Here, we approach the crux of the matter.  For, not only are the dual concepts of “useful” and “efficient” modified and explained by the conceptual introduction of “incompatibility”, but is further defined by the idea that in order to be useful and efficient, the agency must have “accommodated” the Federal or Postal employee such that the employee must be able to continue to perform all of the essential elements of one’s job.  We thus have a clear, unequivocal statement of the standard for eligibility in a Federal Disability Retirement case.  To be “useful” and “efficient” in performing in one’s position, means that one must be able to perform all of the essential elements of one’s job.  If even one of the essential elements cannot be performed, then one’s medical condition is no longer “compatible” with “useful and efficient service.”  Thus, it is the very essence of what it means to be “useful and efficient” – by being able to perform all of the essential elements of one’s job – which determines the compatibility with one’s medical conditions.

      Then, historically, bringing us to the present period (Scotty, Warp factor five, please), there was a time when certain cases began to require that individuals show “unambiguous” proof which established “without contradiction” an inability to perform one’s duties.  Such terms began to find their way (miraculously) in OPM’s denial letters.  Fortunately, this was recently corrected.  The U.S. Merit Systems Protection Board, in the case of Henderson v. OPM, decided on January 31, 2012, Docket No. DC-831E-10-0812-I-1 (a decision rendered by the Full Board), corrected previous errors where these additional requirements were inadvertently added to the original statute -- that evidence be submitted which “unambiguously” and “without contradiction” proved an inability to perform one’s duties.  The Board in Henderson finally returned to clarify, and simplify, the basic approaches in determining Federal Disability Retirement eligibility:  (1) showing that the medical condition caused a deficiency in performance, attendance or conduct, or (2) by showing that the medical condition is incompatible with useful and efficient service or retention in the position.   Neither of these approaches any longer required the showing of “unambiguous medical evidence” or of “uncontradicted” medical evidence.  Yet, such language continues to be cited in many of OPM’s decision letters.

      Language is a peculiar tool.  If used properly, it can elucidate, clarify, and inform.  If applied in a deliberatively improper manner, it can obfuscate, undermine, and misinform.  But between the two ends of the spectrum, are the more subtle and insidious forms of misuse of language:  leaving things unsaid; stating things despite knowing a greater body of contextual cases and legal opinions; applying outdated language even when such language has been previously refuted or overturned; and leaving a clear misimpression when integrity calls for clarification of language. 

      Federal Disability Retirement benefits are available for all Federal or Postal Workers who can prove, by a preponderance of the evidence, that he or she has met the eligibility requirements under the compendium of statutes, regulations, Board case-laws and decisions rendered by the U.S. Court of Appeals for the Federal Circuit.  But one can only meet the eligibility requirements if one first comes to a full and proper understanding of what they are, what they mean, and how they are defined.  But just as a “lie” is not merely the telling of an untruth, so a body of information which leaves out crucial updates, clarifications and elucidations, should not be the primary source to be relied upon.

 I am an Attorney who represents Federal and Postal workers from all across the United States, including Alaska, Hawaii and Puerto Rico. I do not charge for an initial telephone consultation; thus, if you believe that you need to consult an attorney concerning Federal Disability Retirement, please contact me in one of these ways:

 View the FERS/CSRS Disability Retirement website or the U.S. Postal Service Disability Retirement blog

  Email me at federal.lawyer@yahoo.com

  Call me at 1-800-990-7932

  Sincerely,

  Robert R. McGill, Esquire 


 

 

      A man who chooses not to fight in a hypothetical sense, without knowing who the enemy is, what the enemy will do, and what havoc the enemy plans to wreak, has made a choice not of pacifism, but of propagating evil upon countless innocents who rely upon such folly.  -- From Pacifism, Evil, and the Dawn of Man

 FERS & CSRS Disability Retirement from the U.S. Office of Personnel Management:  An Inherently Adversarial Process (9/13/2012)

      It is an adversarial process.  One can describe it any way you want:  euphemisms are meant to soften the reality of an issue, and so we fool ourselves (often, with the help of Human Resources personnel), who state with innocuous aplomb, “Why don’t you just go ahead and fill out the paperwork for Federal Disability Retirement benefits?”

      Thus begins the journey into the abyss of a Federal bureaucracy.  It all seems so simple:  SF 3107 (or 2801 for CSRS employees, who are becoming rarer by the year), the Application for Immediate Retirement, and Schedules A, B & C.  Then, onto the Applicant’s Statement of Disability, where there are some very innocent-looking questions, like, “Fully describe your disease or injury…”  Simple enough.  Just list the diagnosed medical conditions.  Not quite sure what the qualification of “fully” means, but perhaps they just want me to be as detailed as possible.  There is, of course, somewhat of a suspicious “warning” in the sentence following, which states that the agency will only consider those disabilities which I “discuss” in the application, but fair enough.  It doesn’t sound very adversarial.  Simple enough, right? 

      Then, the next question just asks about how my medical conditions or injuries “interferes” with the performance of your duties, your attendance or conduct.   Gee, all that has to be shown is how my medical conditions merely ‘interferes’ with my duties?  That is simple enough:  I have medical conditions X; I have been working with pain for several years, and quietly doing my job with pain, and though my attendance has been near perfect (because I have been enduring the pain to the detriment of my health throughout the last several years), and though my conduct has never been questioned; nevertheless, since the question merely inquires as to whether or not my medical condition “interferes” with the performance of my duties, let me describe how I have had to work through with pain, go home each evening and every weekend to use my off-time to recuperate, just so that I can drag myself back to work on Monday.

      The questions seem straightforward enough.  The question, however, is whether the law supports that which such easy questions imply and infer.

      Then, let me take another government form – Standard For 3112C, “Physician’s Statement”, to my doctor, with the address of my agency’s Human Resources Office – and trust that the doctor will provide the information that is consistent with what I have written in my Applicant’s Statement of Disability.  The implication from the form is that the report and attachments should be in a “sealed envelope”, but then continues on to state that the doctor “may,” if he or she wishes, give it directly to the applicant for delivery to the appropriate office.  Does that mean that, even if it is given to the patient/applicant, it must still be “sealed”?  Does that mean that the applicant who is preparing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management – the one who is the patient of the doctor who is treating the person requesting the medical report – doesn’t have a right to see what the doctor is saying?

      These, and other questions, are merely the “tip of the iceberg” in the attempt to maneuver one’s way through the complex process identified as the “Federal Disability Retirement “ bureaucratic morass.

      But complexity of a process does not determine whether or not it is an adversarial process.  The process itself should betray the very nature of what is involved in such an administrative process.  How is the process set up?  What indicators exist which inherently differentiate itself as a non-adversarial system?  Or, is it merely a language game which denies the reality of what it truly is – a confrontational process which must be “won”, as opposed to merely applied for?  In coming to the conclusion that it is, indeed, an adversarial process, a number of points should be kept in mind:

            1.      The Agency which the Federal Disability Retirement applicant works for, itself does not make a determination – not even a “predetermination” – in a Federal Disability Retirement application.  Think about it:  the Agency for which the Federal or Postal employee works – from whom a Supervisor’s Statement must be obtained; and by whom the question of whether one can be accommodated or reassigned to a position which one can work in – is NOT the agency which makes a determination on a Federal Disability Retirement application.  Thus, no matter what promises are made, or who at the agency makes them – since it is not the Agency itself which makes a determination on a Federal Disability Retirement application, no promises of “offering” a “Federal Disability Retirement” can be made, kept, or honored by any agency other than the U.S. Office of Personnel Management.  The fact that it is not “in-house”, but reviewed by a separate Agency, indicates a process which is governed by strict legal criteria.

2.      One can certainly make a convincing argument that one’s own agency should not be the organization or entity which makes a determination on a Federal Disability Retirement application, precisely because such “in house” determinations would lead to favoritism, influence-peddling and potentially be used as leverage for settlement of collateral legal proceedings.  Be that as it may, the fact that a separate entity – the U.S. Office of Personnel Management, and further, the U.S. Merit Systems Protection Board and the U.S. Court of Appeals for the Federal Circuit – makes the determination on all Federal Disability Retirement applications, creates a process which is inherently adversarial in nature.  OPM applies a “legal criteria”; it applies a standard of proof – “preponderance of the evidence”; it follows precedents set by the courts and the judicial system; it trains its case-workers to review and analyze each case on the merits of meeting the legal criteria.  If this does not constitute the very definition of an adversarial proceeding, it is a mystery as to what would satisfy such a definition.

3.      If one waits until the U.S. Office of Personnel Management denies one’s Federal Disability Retirement application twice – both at the Initial Stage of the process (which one prepares, formulates and files through one’s agency if not yet separated, or within 31 days of separation from one’s agency; or directly to OPM if more than 31 days), as well as the “Reconsideration Stage” of the process – then the case will be heard before an Administrative Judge at the U.S. Merit Systems Protection Board.  There – be not mistaken – it is an adversarial process.  If the Federal or Postal employee has somehow been persuaded, convinced, and otherwise talked into thinking that the Federal Disability Retirement process up to the Third Stage of the Process – the MSPB Stage – is somehow just an “administrative process”, or one in which one must maneuver through the “bureaucracy” of OPM, then one will become rather wide-eyed with shock and surprise at this Third Stage of the process.  For, here, the rules of evidence apply; the Administrative Judge will conduct a formal hearing on the matter; witnesses will be placed under oath to testify; and cross-examination of witnesses will occur.  Alas, it all sounds like an adversarial process, doesn’t it?

      Few things in life are simple.  Simplicity is attained through reducing the components of complexity.  In other words, all things which initially appear simple, become that way through an arduous effort of reduction.  Similarly, the fact that a process is described as merely “administrative” in nature, or a “filing with a bureaucracy”, does not reveal the inherently true nature of the process.  Understanding a process certainly helps to unravel the complexity of the process; and while the process itself may never come to be thought of as “simple”, a thorough understanding of the procedural, substantive and statutory underpinnings of the Federal Disability Retirement process will help to simplify itself attendant complexities.

      Be aware, however.  For, while the administrative process identified as “Federal Disability Retirement” can be reduced to its basic components, it is unmistakably a process which is fraught with procedural and substantive pitfalls.  While it is often true that ignorance is a blissful state to be in, such a state is never a preferred one when attempting to obtain Federal Disability Retirement benefits from the U.S. Office of Personnel Management.  Call it what you will – an “administrative process”, a “bureaucratic procedure”, or whatever; it is, in the end, as adversarial as one can get.

    I am an Attorney who represents Federal and Postal workers from all across the United States, including Alaska, Hawaii and Puerto Rico. I do not charge for an initial telephone consultation; thus, if you believe that you need to consult an attorney concerning Federal Disability Retirement, please contact me in one of these ways:

 View the Federal Disability Retirement blog or the U.S. Postal Service Disability Retirement blog

   Email me at federal.lawyer@yahoo.com

   Call me at 1-800-990-7932

  Sincerely,

 Robert R. McGill, Esquire 


 

 

     Is a man wise for saying the right things?  If a man says the right things but acts contrary to his own wisdom, can he be deemed wise, or merely a foolishly wise person?  What of the man who says the wrong thing but acts as a wise man should?  Does he merely play the fool but act the sage?  That is, of course, the brilliance of Shakespeare, where the fool is a stark contrast to the king, where words possess double and triple meanings to confound the distinction between words and action, fools and sages, and the unknowable chasm between them. -- From Knowledge, Truth and Shakespeare

  FERS & CSRS Disability Retirement from the U.S. Office of Personnel Management:  Don’t fill out the forms before you know the law (04/01/2012)

      In undertaking any endeavor, one should never engage the activity until one has thoroughly analyzed and understood the overarching rules which govern the enterprise, whether it is in sports, a trade, a craft – or applying for a benefit at the Local, State or Federal level.  Would you advise your child to play football without first going over the rules?  Would you hand a power tool to a novice?  Or entrust a large sum of money to an individual who possesses no knowledge about financial management?  Yet, many Federal and Postal employees who have little or no knowledge of the statutes, rules, regulations or laws governing Federal Disability Retirement will complete the “forms” which comprise the heart of a Federal Disability Retirement application, with scant concern or inkling of the consequences, intended or otherwise.

      As in any evolving, organic complexity of law, the governing rules which expand the administrative process of Federal Disability Retirement change daily, weekly, monthly, etc.  It is simply the “nature of the beast”, and one cannot be expected to “know” the fine minutiae of what constitutes an effective Federal Disability Retirement application, unless one first has at least a rudimentary understanding of the legal context from which the process has expanded.  Local lawyers shy away from representing Federal and Postal workers in preparing, formulating and filing for Federal Disability Retirement benefits, if only because the complexity of the aggregate process scares them away.  There are only a handful of attorneys who have the technical knowledge to successfully guide and maneuver the Federal or Postal employee through the morass and maze of the administrative process, and yes, it has indeed become that “technical” in nature.

      The problem can be generally categorized as one involving 3 basic issues:  (A) For the Federal and Postal employee contemplating filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, the stakes are extremely high because such benefits will ensure not only financial stability for the future, but moreover, will allow for some opportunity for physical and psychiatric rehabilitation and recuperation; (B) The aggregate of statutes, laws, case-law, applicable standard of proof; applicable legal criteria to meet; legal standards as applied by the Office of Personnel Management, comprise a universe of complexities which require study, constant updating, and an understanding of the Federal administrative process itself; and (C)  dealing with the agency, the various Human Resources offices; understanding the purpose behind the standard forms which need completion, and more importantly the underlying legal requirements behind the questions asked, etc. -- require insight, understanding and often the most valuable of commodities:  experience.  The conglomeration of such difficulties, of course, is not necessarily unique to Federal Disability Retirement, but apply nevertheless.  It is merely a mundane fact in a world of complexities.

      While the full universe of complexities can never be explicated in any single article, timeframe or discussion, precisely because (a) each case is unique in and of itself, and thus must be tailored to accommodate such particularities, (b) any step-by-step explanation of the substantive and procedural order of preparing, formulating and filing for Federal Disability Retirement benefits will be inherently inadequate to assimilate all of the distinguishing differences of each individual case, and (c) it is precisely the context and content of the details of each particular case which must guide any Federal Disability Retirement application – as such, the best course of action one can take is to reduce any introductory forum in explaining the administrative process into some “principles” to follow.  Three (3) such general rules which all Federal and Postal employees who are contemplating filing for Federal Disability Retirement benefits should include:

 1.  Don’t let your guard down because of the applicable Standard of Proof.  The Federal or Postal employee who is just investigating the possibility of filing for Federal Disability Retirement benefits might well ask a question which would naturally occur as a precondition:  What is the applicable Standard of Proof, and why is it important to know?  The applicable Standard of Proof in all Federal Disability Retirement cases is “Proof by a Preponderance of the Evidence”, which means submitting all evidence in proving a Federal Disability Retirement application such that it is more likely than not that one’s claim for medical disability is true.  This is a fairly low standard in the realm of legal standards.  Why does one need to know what the Standard of Proof is, and if indeed it comprises so “low” a standard on the totem poles of legal standards, why would there be a problem associated with it?  Not knowing the legal standard of proof can lead to a myriad of difficulties, precisely because the standard forms which must be completed – especially SF 3112A (Applicant’s Statement of Disability) -- is formulated in precisely such a simplistic manner as to lull the unwary into thinking that the process is an easy one.  However, while the question may be simple in its affectation, the answers should be precise, concise, and with a view towards meeting the highest standard of proof.

 2.  Don’t let the Office of Personnel Management dictate the law.  At the two administrative levels of filing for Federal Disability Retirement benefits (i.e., at the initial filing stage, as well as if denied, at the Second Level, the Reconsideration Stage of the process), the U.S. Office of Personnel Management purportedly “applies the law” by comparatively analyzing a Federal or Postal employee’s Federal Disability Retirement application against a “7-part” criteria.  Whether the listed criteria are in fact applied is somewhat questionable; how it is applied is a conundrum.   Often, in a denial letter issued by the U.S. Office of Personnel Management, the OPM “Disability, Reconsideration and Appeals Specialist” will list and purportedly discuss the various documents and medical reports submitted as part of the Federal Disability Retirement application, then go on to state something like:  “However, you have not shown that your medical condition incapacitates you to the extent that it creates a risk of harm to yourself or others in the workplace.” What?  Is this an application of the lowest of the legal standards – Preponderance of the Evidence?  Not by any stretch of one’s imagination.  The dictates of law are sometimes created out of an imaginary universe of inventiveness.  The mere fact that X sounds “legal”, does not make it so.  Further, the mere fact that the Office of Personnel Management asserts X, does not make it true.

 3.  Don’t let the law prevent you from asserting your rights.  Or, to put it more precisely, the Federal or Postal employee who has filed for Federal Disability Retirement benefits should not allow lack of knowledge of the applicable laws prevent him or her from obtaining the benefits rightfully eligible and entitled.  There are certainly enough informational resources available for any Federal or Postal employee to access and come to a fundamental understanding of the legal framework of a Federal Disability Retirement application.  Even OPM’s own website can be a valuable resource tool in preparing and properly formulating one’s Federal Disability Retirement application.

      The point of any endeavor is not only to perform X – but to perform X excellently.  Moreover, where the nature of one’s performance leads to a consequence and a result, and where the end product provides a secure future, financial stability, and the opportunity for rehabilitative convalescence, then the stakes in performing well are indeed high.  In criminal law, ignorance of the law is never an excuse for a violation of the law; in administrative law, especially in preparing, formulating and filing for Federal Disability Retirement benefits, whether under FERS or CSRS, ignorance of the laws governing the benefit may well result in consequences which are inexcusable, especially where one’s financial future stability is at stake, and where the opportunity for one’s rehabilitative care may allow for further productivity in the marketplace of economic activity.  Taking a moment to understand “the law” prior to entering the arena of Federal Disability Retirement is a precondition for success; ignoring the precondition would not violate any laws, but rather, undermine the first principle of wisdom.

 I am an Attorney who represents Federal and Postal workers from all across the United States, including Alaska, Hawaii and Puerto Rico. I do not charge for an initial telephone consultation; thus, if you believe that you need to consult an attorney concerning Federal Disability Retirement, please contact me in one of these ways:

       ·         View the FERS/CSRS Disability Retirement website or the U.S. Postal Service Disability Retirement blog

·         Email me at federal.lawyer@yahoo.com

·         Call me at 1-800-990-7932

 Sincerely,

 Robert R. McGill, Esquire


 

 

     Of the man who built a castle in order to protect against invading marauders, but filled the moat with colorful fish because he did not want to spoil the perfect harmony of the ecosystem by introducing foreign predators into the land.  Such a man failed to understand the foundational purpose of the construction of the castle to begin with – to keep out foreign invaders.  By refusing to introduce foreign predators, his castle was invaded by foreign marauders, leaving a devastated skeleton of a charred stone structure – a memorial to one who confused appearance for substance, and the resultant calamity of failing to recognize that sometimes a distinction does make a difference.

 

-- From Aristotelian Perspectives in a Metaphysically Neutral Environment, from Heraclitis to Mao Tse-Tung

 Federal Disability Retirement from the Office of Personnel Management:  Sticking to Basic Approaches is the Road to Success (10/17/11)

      The preparation, formulation, and finalization prior to filing a Federal Disability Retirement application, whether under FERS (the Federal Employees Retirement System) or CSRS (Civil Service Retirement System), should be sufficiently reviewed and carefully scrutinized prior to submission to the Agency of the Federal Employee (if still employed or separated but not more than 31 days) or the H.R. Shared Services Center for the Postal Employee (in Greensboro, North Carolina, where all Postal Disability Retirement applications are processed – again, if still employed or, if separated, not for more than 31 days) and before its ultimate arrival at the Office of Personnel Management, first at Boyers, Pennsylvania, for the intake processing portion of the administrative, bureaucratic process, then for transfer to the U.S. Office of Personnel Management at 1900 E Street N.W., Room 3468, Washington, D.C. 20415. 

      Once the Federal Disability Retirement application has been received for the initial intake processing portion of the administrative procedure at Boyers, Pennsylvania, the case is assigned a “CSA” number – for CSRS individuals, the number which is assigned will begin with the numeral “4”, and end with a “0”; for FERS employees, the CSA number will begin with the numeral “8”, and also end with a “0”.  A CSA Number is simply assigned for purposes of identification so that the case can be easily accessed through the identifying number; although, if the assigned CSA number is forgotten or misplaced, the Office of Personnel Management can still easily locate the file through one’s Social Security Number.

      All successful preparation is defined by careful planning and meticulous formulation.  In scrutinizing a Federal Disability Retirement application prior to submission to the Office of Personnel Management, try to think in terms of both perspectives – the “professional” (the Applicant for Federal Disability Retirement) and the “spectator” (the Claims Representative who will be reviewing the Federal Disability Retirement application for sufficiency, cogency, viability, believability, and evidentiary impact).  The “professional” is the person who prepares the case with such meticulous scrutiny and care, such that it makes it appear to the spectator that everything is in order, that the doctor’s unequivocal support, the natural flow of the Applicant’s Statement of Disability on SF 3112A coincides systematically, truthfully, and without contradiction with the supporting medical evidence; and, further, regardless of what the Supervisor’s Statement says – whether supportive, negative, or neutral in its tone, tenor and content, the important thing is to make sure that the documented medical evidence is such that it makes irrelevant the focal trajectory of the Supervisor’s Statement.  Remember:  this is a Federal Medical Disability Retirement application, and not a “Supervisor’s Disability Retirement application”.

       The “professional” – whether a singer, entertainer, athlete or salesman, or the applicant who is preparing a Federal Disability Retirement application under FERS or CSRS, is defined by the ease with which the “spectator” is able to review and evaluate the presentation placed before him or her.  Extensive and unrelenting preparation is always the key to a successful presentation.  The athlete makes the game enjoyable precisely because of the long hours of preparation he endures; the singer, for the extensive coordinating music sessions with the supporting band prior to going on stage; the entertainer, for the hours upon hours of rehearsals to perfect the necessary timing; and the salesman, who must practice the psychology of persuasive marketing to a stranger being confronted with a 10-second attention span.  Whatever the circumstances, it is always the extent of one’s preparation which correlates and corresponds with a higher statistical chance of initial success.  Sad is the sight which reveals a lack of correlating result from an aging or lazy athlete, where preparation fails to correspond concomitantly with the extent of preparatory exertion.

      In preparing and beginning to formulate the basic approach of a particular Federal Disability Retirement application under FERS or CSRS, however, it is always important to begin with some foundational questions, and such queries should always be accompanied by preliminarily exploratory inquires:  Do I have a supportive doctor?  How will I survive financially for the next 8 – 10 months?  Is it better to slowly use up my sick leave over a span of time?  Under FERS, how aggressive should I be in filing for Social Security Disability benefits, and what are the chances of getting it?  What impact will Social Security Disability have on my FERS Disability Retirement annuity?  Should I go out on LWOP?  Should I file for Family Medical Leave?  Should I participate in the leave-donor program?  What happens if my Agency separates me before I file?  What impact will a separation from Federal Service have upon a Federal Disability Retirement application?  Will I be able to survive on the annuity?  Will I try and work in a private-sector job after I receive a Disability Retirement annuity?   These questions constitute a minor foray into the larger universe of questions which every Federal or Postal worker will have, prior to, during, and after the beginning entrance into preparing to file for Federal Disability Retirement benefits.

      Should I hire an attorney to represent me in filing for Federal Disability Retirement benefits?  The answer to this latter question will often assist in satisfying many of the previous questions posed, precisely because an attorney who is knowledgeable in Federal Disability Retirement issues should not be merely an administrator for filling out forms; rather, any attorney who represents a Federal or Postal Worker to obtain Federal Disability Retirement benefits either under FERS or CSRS should be able to advise, guide, counsel and answer all of the questions surrounding Federal Disability Retirement issues.

      Remember further two (2) important points:  (1) A Federal Disability Retirement application, whether under FERS or CSRS, is never a matter of “filling out forms”.  If that were the case, anyone should (and would) be able to file for, and obtain, Federal Disability Retirement benefits.  And (2), it is very, very rare that a Federal Disability Retirement case is a “slam dunk” case.  Most people believe that his or her particular Federal Disability Retirement application is a “sure thing”.  Such an attitude is quite understandable, of course, because the same person who is preparing the Federal Disability Retirement application is identical with the person experiencing the medical condition which defines the basis of the Federal Disability Retirement application.  It is difficult to separate the two fundamental roles – of the person experiencing the trauma of the medical condition and the impact upon one’s ability/inability to perform all of the essential elements of one’s job, from the person who must objectively formulate the Federal Disability Retirement application under FERS or CSRS.

      Finally, always remember that there is a difference between truth, evidence, and persuasive argumentation.  The former does not, in and of itself, always provide sufficiency of presentation, and the latter two are needed in order to highlight the strength of the former.  The middle term – “evidence” – must always be accompanied by the art of persuasive argumentation.  Don’t ever think that merely compiling a voluminous compendium of medical documentation, even if completely truthful, is enough to meet the evidentiary standard of proof necessary to obtain an approval from the Office of Personnel Management.

      The above constitute some basic approaches to preparing, formulating and filing for Federal Disability Retirement benefits from the Office of Personnel Management.  Basic approaches always reveal a superior methodology than attempting to create complexities where none exist.  Sticking to the “basics” always provides for a foundational aptitude of success, and success is defined by obtaining an approval from the Office of Personnel Management.  Stick to the basics; it is the highest statistical road to success.

        I am an Attorney who represents Federal and Postal workers from all across the United States, including Alaska, Hawaii and Puerto Rico. I do not charge for an initial telephone consultation; thus, if you believe that you need to consult an attorney concerning Federal Disability Retirement, please contact me in one of these ways:

Sincerely, 
Robert R. McGill, Esquire


 

 

     Avoidance of an issue may result in a positive end, as when the issue simply resolves itself; or in a negative end, where the issue continues to exponentially explode and quantify in ways which were unintended, multiplying in consequences which create havoc beyond the original issue which was intended for avoidance.  If the latter, then avoidance itself implodes; for one then avoids even the concept of avoidance, and certainly avoids the initial issue of avoidance, but all the more so, until the morning comes when all of the issues which were avoided resolve themselves.  So, in the end, avoidance is the key to avoid all of life’s nuisances.  -- From “Life’s Steps to Success”

 Federal Disability Retirement under FERS or CSRS:  3 Basic Elements to Avoid in Preparing a Case (6/21/11)

       Filing for Federal Disability Retirement requires planning, preparation and foresight.  It is first and foremost a “paper presentation” to the Office of Personnel Management and, as such, unless it goes to the Third Stage of the Process – the Merit Systems Protection Board – the Federal or Postal employee who files for Federal Disability Retirement benefits, whether under FERS or CSRS, will not have an opportunity to personally plead his or her case as to the validity, persuasiveness or merits of the case.  Therein lies the conundrum, of course:  that in preparing, formulating and filing a Federal Disability Retirement application for approval by the Office of Personnel Management, one must concurrently prepare the case such that the likelihood of success at the First Stage of the process is enhanced exponentially (while recognizing that there is never a guarantee), and at the same time preempting and inoculating, to the extent possible, the Federal Disability Retirement application from selective criticism and potential denial by the Office of Personnel Management.

      Determining whether or not a particular Federal Disability Retirement application will successfully meet the burden of proof at the First Stage of the process is never based upon a mathematical formula.  Where the human factor constitutes the essence of the decision-making and it is not based upon a computerized quantification of paradigm grids, differences of opinions can occur.  Thus, whether or not the Federal Disability Retirement application satisfies the “preponderance of the evidence” burden; whether the medical documentation satisfies the current and applicable legal criteria; whether “essential elements” of the position description have been impacted by the medical condition; whether a sufficient nexus has been formulated between the Federal or Postal employee’s essential duties and the medical conditions of the applicant – all of these issues, and many more, are grey areas of potential dispute and disagreement between the applicant who has filed for Federal Disability Retirement, and the Claims Representative at the Office of Personnel Management.

      Ultimately, of course, there is a “final arbiter” who will decide any dispute which may occur – and that is the Appellate process which governs all Federal Disability Retirement applications.  First at the Merit Systems Protection Board by an Administrative Judge (although this is not technically part of the “appellate process”, but rather a Hearing before an Administrative Judge to determine the sufficiency of the evidence presented), then by a panel of Administrative Judges to decide (if necessary) a Petition for Full Review, then potentially before a Judge of the U.S. Court of Appeals for the Federal Circuit.  Again, the human factor is always involved in intervening by attempting to “objectify” errors or perceived errors of correctly applying the law in making a determination on a Federal Disability Retirement application.  Where the human factor prevails, the self-contradiction of attempting to expunge the human factor by applying an “objective” criteria, as if by mechanical application, is something which is impossible to attain.  But that is why the layers of an administrative process involve multiple stages – in an effort to ensure fairness and an objective adjudication of a Federal Disability Retirement application, and to give the applicant every benefit of the doubt and opportunity to prove his or her case.

      In preparing, formulating and filing a Federal Disability Retirement application under either FERS or CSRS, three (3) basic rules should always be followed, thereby both enhancing the probability of success, while at the same time inoculating the application against selective criticism by the Office of Personnel Management.  The three (3) basic rules are:

 

(A)    Avoid Internal Inconsistencies.  Often, in reviewing denials from the Office of Personnel Management on cases where individuals prepared a Federal Disability Retirement application without an attorney, multiple internal inconsistencies are found, and attacked, by the Claims Representative at the Office of Personnel Management.  These internal inconsistencies often involve direct contradictions between claims of medical conditions and symptomatologies in what the Applicant’s Statement of Disability narrates, and what the medical reports themselves reveal; or between statements made in a medical narrative report and what the office or treatment notes show.  Further, overstating the claim of a medical condition will often implicitly reveal an inconsistency.  It is better to let the doctor state the severity of the medical condition, as opposed to over-dramatization of the medical condition by the applicant.

(B)     Avoid External Inconsistencies.  To the extent possible, one should attempt to preempt inconsistencies between the Applicant’s Statement of Disability, and statements made by the Agency – either in the Supervisor’s Statement or the Agency’s Efforts for Reassignment & Accommodation.  The Office of Personnel Management will often selectively extrapolate and emphasize such external inconsistencies, arguing that:  “While you state in your Applicant’s Statement of Disability that X is the case, your Supervisor has stated that Y is the case.”  While complete avoidance and preemption of such inconsistencies is impossible (and unnecessary), it is best to attempt to predict, preempt and avert such inconsistencies, thereby negating further ammunition which OPM may be able to use in denying a Federal Disability Retirement application.

(C)     Avoid Open Inconsistencies.  These are the more subtle forms of inconsistencies which OPM will focus upon, and which are much more difficult to avoid.  An example of such an open inconsistency is where OPM will argue that while the Applicant who has filed for Federal Disability Retirement benefits has shown that the Agency is unable to accommodate the medical condition, such a showing is valid if and only if one has first shown that a medical condition requires that an accommodation is necessary.  Thus, by failing to first prove by a preponderance of the evidence that X is the case, the Applicant has failed to prove that Y is necessary, and therefore the open inconsistency allows for the Office of Personnel Management to target a criticism for denying the case.

      Preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS must always be accomplished with care, foresight, and with a scrutiny to detail.  Because it is not an “entitlement” (the conceptual distinction being that an entitlement is a benefit which one has an automatic right to), but rather a potential benefit which one may be eligible for – as such, the Federal or Postal employee must prepare his or her case with the cumulative knowledge of the law, the requirements of the law, and the applicability of the law, all at once. It is, ultimately, a benefit one secures not only for financial reasons, but because it allows for future security – both to have the opportunity to recuperate from one’s medical conditions, as well as to be able to again become productive in the workforce, perhaps in another type of job.  In preparing an application for Federal Disability Retirement for FERS or CSRS, one must always look to the future, while at the same time viewing the importance of the entire administrative process, including avoiding targeted elements of inconsistencies which may develop in the preparation, formulation and filing of a Federal Disability Retirement application.

      I am an Attorney who represents Federal and Postal workers from all across the United States, including Alaska, Hawaii and Puerto Rico. I do not charge for an initial telephone consultation; thus, if you believe that you need to consult an attorney concerning Federal Disability Retirement, please contact me in one of these ways:

      View the FERS Disability Retirement website or the U.S. Postal Service Disability Retirement blog.


 

 
 

 Is a Master merely one who knows more than a novice?  Can a novice not run faster, be quicker, use a sword with greater force, outwrestle and outmaneuver a Master?  What advantage does a Master have over the novice, other than the use of words which dissipate into nothingness?  What good, indeed, does a Master do – other than to teach the novice of that which he lacks:  wisdom to know that he knows nothing.  From “Master and Novice”

 Federal and Postal Workers:  Preparing, Formulating, and Filing for Federal Disability Retirement benefits under FERS or CSRS (2/22/11)

Federal and Postal employees who are attempting to prepare, formulate, and file a Federal Disability Retirement application under FERS & CSRS must somehow endeavor to “put it all together” in order to meet the 7-part criteria which the Office of Personnel Management has extracted and extrapolated pursuant to (so they claim) Sections 844.101 to 844.404 of Title 5, Code of Federal Regulations (for those under FERS) and similar provisions for those under CSRS (which is becoming a rarer animal close to extinction).  One need only review a single denial issued by the Office of Personnel Management to recognize the template which the agency engages in:  the “7-part criteria” is a synopsized, condensed application of the statutory framework for showing eligibility for Federal Disability Retirement benefits – without recognition or inclusion of the ever-expanding cases interpreting, reshaping, and clarifying the statutory authority and foundation which OPM continues to myopically adhere to as its narrow criteria to follow.

      In attempting to prove by a preponderance of the evidence (the applicable legal standard and “burden of proof” which a Federal or Postal employee must meet in order to become eligible) that one qualifies for each of the 7-part criteria, the Federal or Postal employee must not only contend with personnel at the Office of Personnel Management who adhere to the original statutory criteria, with all of its anachronistic interpretations (or lack thereof), but further, often the very failure of understanding what the legal criteria actually means (as opposed to what it says), all combine to make for a potentially frustrating experience.

      Because of the multiple potential pitfalls in obtaining a successful outcome in preparing, formulating and filing a Federal Disability Retirement application, one must always consider that the first rule of preparation must embrace the fact that the entire administrative endeavor is a “process” – meaning thereby that one must always prepare for the entirety of the process, and not expect (necessarily) to obtain an approval at the First Stage of the process.  To this end, almost everyone universally believes in the following:  “But my case is different because…”  There never is an applicant who prepares, formulates and files a Federal Disability Retirement application who doesn’t believe that his or her particular medical condition, and the impact upon the ability to perform the essential elements of the job, is not deserving of Federal Disability Retirement benefits.  A person who is unrepresented by an attorney exponentially quantifies the inherent problems which accompany the formulation of a Federal Disability Retirement application.  For, all applicants believe that one’s own Federal Disability Retirement application meets all of the 7-part criteria as expounded and delineated by the Office of Personnel Management.  Why is this?

      First, when the object of the Federal Disability Retirement application (whom does the medical report and records refer to?) is one and the same as the subject who is preparing the Federal Disability Retirement application (who is applying?), then it is almost impossible to maintain a perspective of objectivity, precisely because the person “being talked about” is one and the same as the “person talking”.  Second, an applicant who prepares the SF 3112A (“Applicant’s Statement of Disability”) will often fail to properly read and interpret the medical reports and records which form the underlying justification and basis for eligibility for a Federal Disability Retirement application.  This is because the person who is preparing the Applicant’s Statement of Disability is the same person who already experiences the medical conditions which the medical reports and records refer to, and as such, the applicant too often “reads more into” what the medical reports and records state, than what they actually state. This is familiarly termed, “overreaching” – which is a common mistake made in preparing the narrative story of one’s state of medical condition on SF 3112A.   Again, the proper sense of objectivity is lost.  And, Third, there is often the danger of an incommensurate disconnectedness between that which the applicant states in the Applicant’s Statement of Disability, and that which the medical report describes.  Again, this has to do with an inability to maintain a proper sense of objectivity – for the person feeling the pain must be the same person who must describe the pain.  Such an endeavor is tantamount to an individual attempting to perform brain surgery – on one’s own brain.

      Is it impossible for a Federal or Postal employee to successfully maneuver through the potential pitfalls of the entire administrative process identified as the “Federal Disability Retirement process”?  No, nothing is ever impossible.  But it can be difficult.  To master the entirety of the process, from beginning to end, by being both the object of the application, identical with the subject of preparing, formulating and filing a Federal Disability Retirement application; then to contend with the misapplication, misinterpretation and limited view of the governing laws which dictate the success or failure of a Federal Disability Retirement application –by the very governing Agency which is supposed to comprehend the complexities of such laws (that Agency being the Office of Personnel Management), is to merely recognize at the very start of the process that every such bureaucratic administrative endeavor places one at an initiating disadvantage.

      Take, for instance, Criteria Number 6 which the Office of Personnel Management often focuses upon – that in order to qualify for Federal Disability Retirement benefits you have to show that your employing agency was “unable to make reasonable accommodation for your medical condition.”  While the term “accommodation” can be discovered via a proper search of the Code of Federal Regulations, OPM makes no effort to assist the potential applicant as to the nuances and interpretive history of what qualifies as an “accommodation”, and moreover, the common interpretation of what constitutes an accommodation is not intuitively obvious.  Further, OPM’s own application of the concept of “accommodation” is often misguided, as professional experience has revealed.

      Ultimately, the singular effort of a Federal or Postal employee in preparing, formulating and filing a Federal Disability Retirement application takes an extraordinary effort of coordinating a multi-faceted administrative process:  of obtaining the proper medical documentation; of streamlining and making decisions as to which documents are not only relevant and compelling, but moreover, will advance the essence of the narrative of one’s medical condition; of formulating an effective statement of one’s medical disability and the impact upon one’s inability to perform one or more of the essential elements of one’s job; of predicting and, if necessary, preempting what a Supervisor may or may not state; of addressing legal arguments which the Office of Personnel Management may make in its initial review of a Federal Disability Retirement application.  The work to be done and the road one must travel, in preparing, formulating and filing a Federal Disability Retirement application, is analogous to anything and everything one encounters in the course of living a life:  mastery of a craft is difficult; to become a master, one must prepare well.

      I am an Attorney who represents Federal and Postal workers from all across the United States, including Alaska, Hawaii and Puerto Rico. I do not charge for an initial telephone consultation; thus, if you believe that you need to consult an attorney concerning Federal Disability Retirement, please contact me in one of these ways:

 ·         View the FERS Disability Retirement website or the U.S. Postal Service Disability Retirement blog

·         Email me at federal.lawyer@yahoo.com

·         Call me at 1-800-990-7932

 Sincerely,

 Robert R. McGill, Esquire


   Man, capable of moral behavior, suited with intelligence and cunning, endowed with creativity and foresight; yet, the only animal capable of unfettered cruelty just for the sake of self-amusement.  Why is this so?  Having so many advantages, why does he lack in fulfillment of his potential?     --  From Man and Philosophy

 OPM Disability Retirement under FERS or CSRS:  While the Law may favor the Applicant, the Process does not   (10/29/2010)

     There is often a suspicion that certain forums are “weighted” in favor of the government.  In speaking with Federal and Postal Workers who are contemplating filing for Federal Disability Retirement benefits from the Office of Personnel Management, a concern which often surfaces repeatedly is that the Merit Systems Protection Board is “weighted” in the government’s favor.  While it may be true that the MSPB may find in favor of the Federal Government and its agencies in a majority of cases, this does not necessarily mean that there is a bias on the part of the Administrative Judges.  In many cases, appeals to the MSPB are brought by unrepresented individuals (“pro se” appellants), and therefore never stand a chance at winning against seasoned agency lawyers.  Further, because the law allows for wide discretion on the part of Agencies to dismiss Federal workers for the “efficiency of the Federal Service,” the laws themselves may favor the Federal Government, which therefore has little to do with how a judge rules.  Judges are supposed to apply and follow “the law”.

      An exception to the idea that Agencies normally prevail against Federal or Postal Workers, should be found in Federal Disability Retirement cases under FERS or CSRS.  Why should this be so?  This is because Federal Disability Retirement laws are heavily weighted in favor of the applicant who is filing for Federal Disability Retirement benefits.  Here are at least five (5) examples where the laws governing Federal Disability Retirement benefits is weighted in favor of the Federal or Postal Worker filing for Federal Disability Retirement benefits under FERS or CSRS:

      1.  One needs only prove, by a preponderance of the evidence, that one cannot perform just one (or more) of the essential elements of one’s job.  Thus, a Federal or Postal Worker does not have to prove that one is “totally disabled” from gainful employment.  It is a much lower standard.

      2.  Only 18 months of Federal Service (under FERS) is needed in order to be eligible to file for Federal Disability Retirement benefits.

      3.  “Light Duty” does not constitute an “accommodation” which precludes one from filing for Federal Disability Retirement benefits under FERS or CSRS.  Thus, even if the Agency allows for temporary light-duty assignments, the very fact that the Federal or Postal employee is unable to perform the full duties of his or her position allows for eligibility for Federal Disability Retirement benefits.  See Bracey v. Office of Personnel Management, 236 F.3d 1356, 1358 (Fed. Cir. 2001).   

      4.  Being denied by Social Security does not impact one’s FERS or CSRS Disability Retirement application, whereas the converse is true – being approved by SSDI can and often does help to prevail in a Federal Disability Retirement application.  See Trevan v. OPM, 69 F.3d 520 (Fed. Cir. 1995). 

      5.  In addition to competent medical evidence, subjective evidence (meaning thereby the personal statements of the applicant who is filing for Federal Disability Retirement benefits under FERS or CSRS) of disability and pain must be given “serious weight”.  See Vanieken-Ryals v. OPM, 508 F.3d 1034 (Fed. Cir. 2007).

      Such legal advantage should give great hope for Federal and Postal workers contemplating filing for Federal Disability Retirement benefits under FERS or CSRS.  The irony, however, is that because the law is clearly weighted in favor of the Federal or Postal Worker who is filing for Federal Disability Retirement benefits under FERS or CSRS, one may expect greater scrutiny by the Office of Personnel Management in reviewing, evaluating, and approving or disapproving a Federal Disability Retirement application.  In other words, the mere fact that the law may be “weighted” in favor of the Federal or Postal Worker does not mean that the process is easier.  This is often the case, however unfortunate, in all facets of life:  where the substantive rules provide greater advantages, the process of review applies with greater scrutiny.

      Take, for instance, a recent case published by the Merit Systems Protection Board – Beeler-Smith v. OPM, Docket No. DC-844E-09-0520-I-1, decided October 9, 2009.  In Beeler-Smith, the multiple facts clearly favored an approval of a Federal Disability Retirement application under FERS, to include:

n      Medical conditions which clearly prevented the Applicant from performing her job as a Rural Carrier (where the Applicant’s condition was so severe that she could not bend her knees, stoop down or lift mail tubs or trays without assistance from her coworkers; where she actually had to lift her leg with her hand to use the brake of the vehicle; where she had to use a cane to walk; and where the doctor stated that she was a danger to herself and to others while driving).

n      SSDI benefits were awarded

n      The Supervisor’s Statement stated that the Applicant had a performance deficiency

      The Agency Certification of Reassignment and Accommodation Efforts (SF 3112D) showed that the Applicant’s condition could not be accommodated, and she did not refuse an offer of reassignment

      These are just some of the facts – almost irrefutable and eye-opening in considering the severity of the medical conditions, the unequivocal factual support in favor of a Federal Disability Retirement application, etc. – which makes one pause in asking the questions:  How could the Office of Personnel Management deny such a Federal Disability Retirement application at the Initial Stage of the process?  How could the Office of Personnel Management deny the case at the Reconsideration Stage?  How could the Administrative Judge deny the initial appeal at the Merit Systems Protection Board?

       Ultimately, in a Petition for Review, the Merit Systems Protection Board reversed the initial decision rendered by the Administrative Judge at the Hearing Level.  While an allegation of bias by the Administrative Judge was sidestepped as an irrelevant issue by the reviewing Administrative Judges, the fact that this was the Appellant’s second attempt at obtaining Federal Disability Retirement benefits probably played a prominent role.  One suspects that, given all of the medical conditions, facts, and legal support which favored a quick and speedy approval, the underlying reasons for the multiple denials had something to do with a higher level of scrutiny of the application.  The fact that there are multiple laws which create an advantageous forum does not necessarily imply an easier process.  Often, the opposite is true:  substantive laws which favor one side over another invite for greater scrutiny, and require that the applicant “cross all Ts and dot all Is” –  and not lazily rely upon the weighted advantage.

      I am an Attorney who represents Federal and Postal workers from all across the United States, including Alaska, Hawaii and Puerto Rico. I do not charge for an initial telephone consultation; thus, if you believe that you need to consult an attorney concerning Federal Disability Retirement, please contact me in one of these ways:

     * View the Federal Disability Retirement Blog or the U.S. Postal Service Disability Retirement blog

    * Email me at federal.lawyer@yahoo.com

    * Call me at 1-800-990-7932

 

Sincerely,

Robert R. McGill, Esquire