View my websites at

U.S. Postal Service Federal Disability Retirement blog

www.FederalDisabilityLawyer.com

 Federal Disability Retirement Blog

Postal workers today face an increasingly difficult task: Longer hours; less management support; lack of commensurate wage increase; greater volume of packages and parcels; the inundation of Amazon packages ignoring weight and size requirements; and a public who fails to appreciate the singularly unique position held by the U.S. Postal Service. Let us remember, first and foremost, that Article 1, Section 8 of the U.S. Constitution specifically states that Congress is empowered to “establish Post Offices and Post Roads.” The Post Office is thus a unique entity, and the criticism that they are “losing” Billions of Dollars annually is simply unfounded: It is nickels and dimes when compared to the operating costs of other Federal Agencies, and no other Federal Agency performs such an important function, reaching globally and internationally. Then, there is the public criticism from the highest positions of the Administration and the Postal Service itself, impacting upon the morale of the front-line workers, the midnight Mail Handlers, the daily Rural and City Carriers, and the thousands of Window Clerks, Sales, Service and Distribution Clerks and every other position within the Postal Service.

Yet, the Postal Service and its employees endure — they endure the constant and incessant deterioration of the public image despite it all. The “all” is comprised of many frustrations: The longer hours; the greater volume of mail; restricted time in performing one’s work; and now, with the COVID-19 Pandemic, greater social distancing when delivering mail, and the constant dangers of becoming infected through the business transactions engaged on a daily basis.

The human body has its limitations, however. Repetition of work is one thing; lifting packages and parcels of greater weight and of awkward proportions is quite another. The body begins to break down; the longer hours begin to fatigue; the lack of encouragement and support from “higher-ups” leads to greater frustrations. Perhaps the knees first begin to ache; the right shoulder has a partial tear; multi-level disc herniations are suspected; the diffuse muscle pains last longer than once we were young. Out of frustration, some just quit — it just isn’t worth it, anymore.

Have you considered Federal Disability Retirement under FERS?

It is a benefit which is often not considered because Federal and Postal workers are unaware of its existence or otherwise misunderstand it. It is not Worker’s Compensation/Department of Labor- related. To qualify and become eligible, you do not have to have suffered an injury “on the job”. It does not have to result from an “occupational disease”. You do not have to prove “causation” in the strict sense. Strangers do not secretly “video-tape” your every movement; and yes, you are allowed to — after winning a Federal Disability Retirement case — go back into the private sector, into State or County government, and get another job making up to 80% of what your former Postal (or Federal) position currently pays, and make that amount on top of the Federal Disability Retirement annuity you are receiving.

To become eligible, you must have a minimum of 18 months of Postal Service under FERS, and show that you suffer from a medical condition such that the medical condition prevents you from performing one or more of the “essential” elements of your postal job duties. As “causation” is not an element of required proof, you do not have to show “how” the medical condition happened, but only that it did happen during the time you are or were a Postal employee. And that is an important point: The repetitive work engaged in by front-line workers at the Postal Service often cannot be shown to be the cause of a torn labrum, the cervical disc herniation, the meniscus tear or the Plantar Fasciitis. It is difficult to prove that a medical condition was “caused” by a single event or — more importantly — the treating doctor is unable to issue a definitive conclusion as to the causal connection between a singular event and the medical condition suffered.

Likely, you never went to the emergency room, and so you cannot identify a particular incident which was the “cause” of your medical condition. Certainly, the stresses which you have had to endure in working those longer hours, the lifting of heavier parcels, the processing of greater volume of mail, and the lack of upper management support, cannot be proven to have “caused” your growing depression, anxiety or panic episodes, leaving aside the physical deterioration you are experiencing. Under Federal Disability Retirement Law, the eligibility requirement is quite different from that of filing for OWCP/Worker’s Compensation: Not about causation, but merely the fact that you suffered from an injury or medical condition during the pendency of your employment as a Postal Worker under FERS.

What happens, however, if a Postal Service employee — out of frustration from all of the elements described above — suddenly quits? Under the law, a Federal or Postal employee who suffers from a medical condition has up to one (1) year to file for Federal Disability Retirement benefits under FERS. It can become, of course, more complicated when a Postal employee quits his or her job first, then files for Federal Disability Retirement benefits — and it is not advisable to do it this way. First, the Postal employee should consult with an attorney who specializes in Federal Disability Retirement Law before taking the step of resigning or separating. Second, you should check to see if you are in fact separated from the Postal Service. If you are still receiving those 0-balance paystubs, that is an indication that you have not yet been separated from the Postal Service, and therefore the 1-year Statute of Limitations has not even begun to toll. And Third, you will need to have a supportive doctor who, preferably, has been treating you for quite some time, as you must prove that you were disabled prior to your date of separation from the Postal or Federal Service.

We often do things without thinking them through — that is, unfortunately, the nature of human actions. If the Postal employee has resigned or quit out of frustration — and that is becoming a common occurrence in these times of turmoil, increased work and lack of upper-management support — it can make proving one’s Federal Disability Retirement application somewhat more problematic. There are some legal remedies, however, which allows for retrospective considerations, such as Reilly v. OPM, Federal Circuit Court of Appeals, 571 F.3d 1372 (Fed. Cir. 2009) — a case which this author has written quite extensively about in other related articles. As a reminder, however, Reilly stands for the proposition that post-removal medical records and reports are clearly relevant where they can show a reasonable connection and nexus to a pre-separation time-frame. The Court in Reilly recognized that medical conditions rarely “appear” suddenly. Most conditions are progressive and degenerative in nature, and indeed, that is what the Court in Reilly argues. “The field of forensic medicine abounds with examples of subsequent medical examinations relevant to a prior condition,” the Court in Reilly argued, citing the classic example that “inferences about prior intoxication can be drawn from blood alcohol tests conducted at a later time.” Further, where “proximity in time, lay testimony, or some other evidence provides the requisite link to the relevant period the subsequent evidence can be very probative of a prior disability.” This was and remains an important case for Postal and Federal employees who resign out of frustration, and later file for Federal Disability Retirement benefits within the 1-year Statute of Limitations.

Furthermore, for those Postal and Federal employees who separate prior to filing a Federal Disability Retirement application, the issue of “accommodations” is another problem which OPM is likely to exploit and argue. OPM has consistently argued that the Postal Worker who resigns prior to completing the “reasonable accommodations” process is precluded from being eligible for Federal Disability Retirement because the Postal Service “perhaps” could have accommodated him or her, if given the chance. But since the Federal Disability Retirement applicant failed to go through the accommodation process, he or she is unable to show that an accommodation could not have been provided. It is a rather circular argument which makes no sense — precisely because everyone in the universe except OPM knows that the Postal Service never does, and never can, accommodate its injured workers. There are, fortunately, cases which can rebut OPM’s arguments, such as Bracey v. Office of Personnel Management, 236 F.3d 1356, 1358 (Fed. Cir. 2001), where the Federal Circuit Court delineated and outlined what constitutes a legally-viable “accommodation”, as well as Henderson v. OPM, Docket No. DC-831E-10-0812-I-1, in which the Board focused upon the criteria of “incompatibility” and essentially shifted the weight away from accommodation issues.

In the end, “causation” is a relative term which is often interpreted in different ways. It does not have the same application in a Federal Disability Retirement Case as it does in a Worker’s Compensation, Department of Labor case. If a Postal worker quits his or her job because of a medical condition (because he or she could no longer perform one or more of the essential elements of his or her job), one can argue that the medical condition “caused” the quitting — in a rather loose sense of the word. In a Worker’s Compensation/Department of Labor case, “causation” has to do with a direct link between the injury itself and the resulting medical condition which is the consequence of the incident or the occupational disease. In the latter scenario (Worker’s Comp), causation must be explicitly proven. In the former case (Federal Disability Retirement), “causation” must be loosely shown because — if a Postal worker unwisely quits or is terminated prior to filing his or her Federal Disability Retirement application — it must be shown that a medical condition preventing the Postal worker from performing the essential functions of the job existed prior to his or her separation from service. Fortunately, as stated previously, there are enough legal cases to support such a position even after unwisely quitting one’s job.

Federal Disability Retirement is a benefit for the Postal Worker of today who feels that he or she had no choice but to leave the job because of a medical condition, an injury, intolerable levels of stress, and a multitude of other reasons. There is a “right way” of preparing, formulating and filing an effective Federal Disability Retirement application, but when a person is suffering from a medical condition, the “right way” is not always strictly adhered to. Even in these trying times, the law recognizes that “to err is human, to forgive divine” — a famous quote from the influential 1711 work, “An Essay on Criticism”, by Alexander Pope. Fortunately, for the Postal Worker today, that truism still applies — for the law yet forgives, despite the errors we may make.

I am a FERS Disability 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 my Federal Disability Retirement website or the Postal Service Disability Retirement blog
• Email me at federal.lawyer@yahoo.com
• Call me at 1-800-990-7932

Sincerely,
Robert R. McGill, Esquire

View my websites at

U.S. Postal Service Federal Disability Retirement blog

www.FederalDisabilityLawyer.com

 Federal Disability Retirement Blog

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It is a mere tautology to assert that subjectivity is in the eye of the beholder; the greater conundrum is how we can objectively discern the subjective character of something, such that a level of impartiality is achieved despite the origination of subjectivity. This is the penultimate problem that immediately arises in a Federal Disability Retirement case. For, by definition, how does one “prove” a disability, except for those catastrophic injuries which, on the face of it, cannot be denied? More importantly, for the majority of Federal Disability Retirement issues – from the complex cases involving Fibromyalgia, chronic pain, chronic fatigue, and the compendium of psychiatric disorders -- what does it mean when the “administrative specialist” counters with the argument that your Federal Disability Retirement application is “denied and disallowed” because the medical evidence submitted does not sufficiently meet the eligibility requirements as interpreted by the U.S. Office of Personnel Management?

Fortunately, the substantive statute forming the overarching aegis for determining the eligibility criteria in all Federal Disability Retirement cases, favors a decidedly reasonable approach in evaluating the validity of a claim. That is why, unlike Social Security disability, Federal Disability Retirement under FERS & CSRS is not just about the medical condition itself, but the nexus between the medical condition and the ability to perform the essential elements of one’s Federal or Postal position.

This attorney has previously written about the Objective/Subjective distinction which often becomes problematic, and redundantly an obstacle, in filing an effective Federal Disability Retirement application. And, indeed, the problem with most Federal Disability Retirement applications, formulated and submitted without legal representation, is in the lack of substantiating medical evidence, which forms the basis of a denial and the need to file a Request for Reconsideration with the U.S. Office of Personnel Management, and perhaps even a further appeal to the U.S. Merit Systems Protection Board, if denied a second time. For, as insanity is usually defined as the mindless repetition of thoughtless and purposeless acts, so “something new” and different needs to be reformulated when a denial is issued by the U.S. Office of Personnel Management.

Often, the problem emanates and originates from OPM’s complete and total disregard of “the law”. Indeed, it is well known that OPM doesn’t care about applying the law, or following the mandates handed down by either the U.S. Merit Systems Protection Board, or the Federal Circuit Court of Appeals. That is precisely why the U.S. Office of Personnel Management continually attempts to bifurcate between “objective” medical evidence as opposed to “subjective” medical evidence. The Federal Circuit Court case of Vanieken-Ryals v. OPM, 508 F.3d 1034 (Fed. Cir. 2007), effectively quashed OPM’s adherence to that subjective/objective medical evidence distinction, despite there being no legal basis for applying such a criteria, by pointing out that there exists no “statute or applicable regulation of which we are aware [which] imposes such a requirement [that “objective” evidence is “required to prove disability”]”. The Court in Vanieken-Ryals went on to state unequivocally: “In fact, applicable law suggests the opposite rule. OPM’s regulations define the type of ‘medical documentation’ required to establish disability…There is no hint of any objective/subjective distinction, and the regulation clearly indicates that any evidence – ‘subjective’ or otherwise – utilizing ‘established diagnostic criteria’ and consistent with ‘generally accepted professional standards’ is eligible for consideration.” Thus, “subjective evidence” – generally defined as evidence unconfirmed by commonly utilized diagnostic tools – is certainly eligible for consideration in a Federal Disability Retirement application. However, the problem occurs when there arises self-contradictory evidence between different aspects of a submission – such as disagreement between a medical report and the claim of the applicant; countervailing statements by the Agency or Supervisor; inconsistencies between the Applicant’s Statement of Disability and the attached treatment & office notes; and other potential areas of conflicts.

Despite the clear refutation and attempted boundaries imposed by the United States Court of Appeals for the Federal Circuit in delimiting the conceptual distinction between “objective” evidence and “subjective” evidence, the U.S. Office of Personnel Management still continues to favor what they deem to be “objective” medical evidence. Their argument is one based upon the need to ascertain the credibility of the “subjective” evidence, by contrasting and comparing it to the “objective” medical evidence. That is why, in reviewing a Federal Disability Retirement application under FERS or CSRS, the U.S. Office of Personnel Management will often inquire as to whether a “Functional Capacity Evaluation” was administered (as if the dozens of clinical examinations by the treating doctor somehow doesn’t measure up to a single 45-minute FCE), or whether “psychological tests” were done (again, as if the psychiatrist or the psychologist who had multiple encounters with the patient are not trained to sufficiently perform clinical evaluations).

Singular instances of unique disagreements often indicate substantive and real disparities; a pattern of redundancy, however, brings into question the validity – both of sincerity and intent – of the basis for a denial. Too often, despite evidence which complies with the ruling of Vanieken-Ryals v. OPM, the language of OPM’s denials, if read and compared in a careful study of contrasts, reads like a template of regurgitated and plagiarized editions. Thus, care must be taken in formulating and submitting certain issues and medical conditions, such as a partial extrapolation involving the following:

■ Psychiatric conditions – what level of severity; are medication regimens tried, and therapeutic intervention also added? Have further treatment regimens been attempted, such as ECT treatments and different trials of psychotropic medications?
■ Fibromyalgia – has a consultative opinion been rendered by a Rheumatologist?
■ Stress -- is it merely situational, or all pervasive? Will the Psychiatrist or Therapist reformulate the diagnostic basis?
■ Is a Chiropractor used as the primary “point” person in the Disability Retirement case?
■ Is it better to have more than one doctor involved in providing supportive medical evidence – in other words, does quantity override quality?
■ Is a “Nurse Practitioner” or a “Physician’s Assistant” sufficient, or must there be the autograph of an “M.D.”?
■ How helpful is a “Functional Capacity Evaluation”?
■ Can medical reports generated in a separate forum – such as an “Independent Medical Examination” report in a Worker’s Comp case – help in a Federal Disability Retirement application?
■ Can a denial in a Social Security Disability filing which contains the language that, while it has been determined that the applicant is not eligible for Social Security Disability Benefits but attests that the individual is unable to perform the job currently occupied – be used as “evidence” in a Federal Disability Retirement case?
■ How, and to what extent, should VA Disability Ratings be posited in pursuance of a Federal Disability Retirement claim? Is reference to the aggregate percentage of disability valid, or do the individual numbers require careful analysis before submitting it as evidence under Simpkins v. OPM?

These, and many more aggregation of “evidence”, both medical and non-medical, can help to “counter” the intentional disregard of “the law” as embraced by the U.S. Office of Personnel Management, in selectively weighting a case in favor of an initial approval. However, caution should always be entertained, especially (as they say in those high-speed automobile commercials or where g-force torques are engaged, “Leave it to the professionals”) in refraining from any “shotgun” approach in compiling an effective Federal Disability Retirement application.

In the end, there is no singular algorithm or formula in preparing an effective Federal Disability Retirement application. Life guarantees little, and even less when it comes to betting upon a Federal Disability Retirement application being evaluated by the U.S. Office of Personnel Management. Prior experience in previous encounters with successes –and some failures – certainly accounts for an increase in wisdom by past engagements; and as knowledge provides for a quantitative increase in statistical probabilities corralled, so knowing the concerns and preemptively addressing potential problems allows for a greater chance of success.

Never underestimate the power of “the law” – nor of a Federal bureaucracy in attempting to ignore or disregard the mandates of the law. It is incumbent upon the applicant to point out what the law requires, and to admonish the Leviathan of Federal Agencies to follow it – if not at the Initial Stage of the process, then at the Reconsideration Stage; and if not at the Reconsideration Stage, then at an appeal before the U.S. Merit Systems Protection Board. For, never send to know for whom the bell of objective evidence tolls; it tolls for thee, in the very subjectivity of being the evidence itself.

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 my Federal Disability Retirement website or the Postal Service Disability Retirement blog
• Email me at federal.lawyer@yahoo.com
• Call me at 1-800-990-7932

Sincerely,
Robert R. McGill, Esquire

OPM Disability Retirement: Securing a Future (November 6, 2014)

Change is an inevitable feature of life.  It is always difficult to accept the vicissitudes which interrupt the security found in the daily routine of work, family and social events, if only to get together with neighbors or sometime-acquaintances for an evening to forget the daily toils of living.  The embracing of a lifetime of toil – of daily getting up at a specified time; of performing the routine of self-grooming; of encountering the outside world in order to provide security for the present and investing for tomorrow; to contribute to one’s Thrift Savings Plan (if the Federal or Postal employee is under the Federal Employees Retirement System); all of these efforts, and more, constitute a lifetime of performing one’s duty, fulfilling one’s obligation, and making a significant impact for the sake of self, family, and society.

      When a medical condition mandates change, the thought of altering the daily routine of life becomes exponentially difficult, precisely because such shifting of goals was not a voluntary act, but one imposed from somewhere else.  Often, for the Federal employee or the U.S. Postal worker who begins to suffer from a progressively deteriorating medical condition, thoughts of impending future doom, loss of income, reverberating impact upon family, social status and financial and economic instability, becomes overwhelming.  It is bad enough that one must deal with the medical condition itself; when concerns beyond the core of one’s health begin to overtake and predominate, it is often a good idea to seek the advice of someone who specializes in a particular field.

      Federal Disability Retirement law is not state-specific.  In fact, the majority of lawyers in the country have no clue that such a field of administrative law even exists.  Because it is a Federal issue, and not a “state-specific” issue, an attorney who has specialized expertise in the field of Federal Disability Retirement law can represent Federal and Postal employees from all across the United States.  All of the administrative issues can be handled through the use of modern technology – from Express Mail, FedEx or UPS overnight mail; to email, fax, phones and PDF/Word/other attachments, etc.  In fact, during the process of trying to obtain Federal Disability Retirement benefits, if a case has to be appealed to the U.S. Merit Systems Protection Board, the Hearing itself is normally conducted via a telephone hearing, so that no inconvenience of travel is imparted to anyone involved.  Furthermore, because it is a Federal issue which involves administrative and bureaucratic complexities which require some specialization, it is advisable to obtain the services of an attorney who exclusively handles Federal Disability Retirement claims.

      Beyond hiring an attorney, however, the prefatory fears which the Federal or Postal employee faces upon recognizing and acknowledging (and, yes, there is a vast conceptual and practical distinction between recognizing that a problem exists, and acknowledging that it needs attending to; for, recognizing something in and of itself does not necessarily spur one to action, whereas a self-acknowledgment that a problem requires pragmatic steps, brings together the chasm dividing thought from action) that a medical condition is preventing one from performing one or more of the essential elements of one’s Federal or Postal job, the questions are often threefold:

• What does it take to qualify for Federal Disability Retirement benefits?

• What does Federal Disability Retirement pay?

• How does Federal Disability Retirement bode for my future?

  Question 1:  “What does it take to qualify for Federal Disability Retirement benefits?”   The laws governing Federal Disability Retirement have a long history, greater context and expansive impact extending for decades.  It begins with statutory authority; it becomes expressed in regulatory language which requires the U.S. Office of Personnel Management to follow; and it has been expanded upon, interpreted and somewhat restated through court opinions issued by the U.S. Court of Appeals for the Federal Circuit, and by judicial decisions from the U.S. Merit Systems Protection Board.  Qualification is not determined by a standard of “total disability” (which is more akin to Social Security Disability, which the Federal and Postal worker who are under FERS must file for during the process of filing for Federal Disability Retirement benefits, but merely to show a receipt of such filing), but rather, one must show that, As a result of one’s medical conditions, the Federal or Postal worker is no longer able to perform at least one, if not more than one, of the “essential elements” of one’s positional duties.

      Qualification for Federal Disability Retirement benefits is not necessarily based upon a 1-to-1 ratio of showing a specific medical condition tied to an essential element of one’s job.  Instead, it can be established through showing that there is an “inconsistency” or “incompatibility” between the medical conditions suffered, and the type of work required by the Federal or Postal job.  Thus, while the concept itself is somewhat more complex, it is often the focus upon the symptoms of a diagnosed (or even undiagnosed) condition, as opposed to the condition itself.  From physical disabilities manifested by Chronic pain, profound fatigue, Multiple Sclerosis, Failed Back Syndrome, Reflex Sympathetic Dystrophy, Shoulder impingement issues, Rotator Cuff tears, knee problems, ankle fusions, ulnar nerve treatments, Carpal Tunnel Syndrome; to Chronic Fatigue Syndrome, Fibromyalgia, Crohn’s Disease, Lumbar and Cervical Radiculopathy, to a host of infinite maladies and conditions which cannot easily be listed in this limited forum; to all of the various psychiatric conditions involving Major Depression, Generalized Anxiety Disorder, Bipolar Disorder, uncontrollable panic attacks and suicidal ideations; it is the impact of the symptoms resulting from the medical condition which form the basis of a Federal Disability Retirement application.  Hint:  “Stress”, which is inherent in every workplace environment, can be problematic, and should be approached with care when filing a Federal Disability Retirement application.

  Question 2:  “What does Federal Disability Retirement pay?”  For Federal and Postal employees under FERS, which most Federal and Postal employees participate in, the statutorily-set annuity is payable at:  60% of the average of one’s 3 highest consecutive years of pay for the first year of Federal Disability Retirement annuity, and 40% every year thereafter, until age 62, at which point the Federal Disability Retirement annuity gets recalculated as a regular retirement, based upon the total number of years of Federal Service, including the years that the Federal and Postal worker are on Disability Retirement.  Thus, there is a great advantage in being on Disability Retirement, even if you have an OWCP claim which may pay a higher rate for the present, because you are building for your later retirement.  Additionally, the (now former) Federal or Postal employee may work in a private sector job and make up to 80% of what one’s former position currently pays, on top of the Federal Disability Retirement annuity one is receiving.  For CSRS and CSRS Offset employees, the annuity is calculated via a different formulaic method.

  Question 3:  “How does Federal Disability Retirement bode for my future?”  As we acknowledged at the outset of this Article, change is an inevitable feature of life.  If a medical condition prevents a Federal or Postal worker from performing all of the essential elements of his or her job, the choices are limited.  You can try and stay at your job (but your agency or the U.S. Postal Service may, at some point in the near future, begin proceedings to terminate you, or otherwise place you on a “Performance Improvement Plan” (PIP), and send you home with the admonition that there are no jobs available within the parameters of your medical restrictions); resign and walk away; or file for Federal Disability Retirement benefits through the U.S. Office of Personnel Management.  Future security is based upon present planning.  Preparing to file for Federal Disability Retirement benefits, whether you are under FERS, CSRS or CSRS Offset, is a steppingstone for establishing security for tomorrow.

  For the Federal or Postal worker who suffers from a medical condition, the traumatic event of the medical crisis is difficult enough to deal with, without the administrative headache of trying to prove a Federal Disability Retirement case.  Hiring an attorney who specializes in Federal Disability Retirement law is often a prudent step to ensure future stability, but of course, many factors must be considered, and some may attempt to steer the voyage through such treacherous waters without an experienced navigator.  What depths of dangers are encountered, floating icebergs ripping apart vulnerable hulls, and sunken ships like haunting ghosts glowing in the misty oceans of twilight seas, only the Federal or Postal worker who attempts to maneuver through the administrative waters of the U.S. Office of Personnel Management, must determine for the sake of securing an unknown future. 

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 my OPM Disability Retirement website or the Postal Service Disability Retirement blog

·         Email me at federal.lawyer@yahoo.com

·         Call me at 1-800-990-7932

Sincerely,

Robert R. McGill, Esquire

:

Student:  Master, what is the key to success in battle?  Master:  Have your opponent focus upon the fear of surprise; all the while, attack what he fears least, but is most vulnerable by foolish overconfidence.   From Hsin-Qui, Battlefronts for the Emperor  

FERS & CSRS Disability Retirement for the Federal and Postal Worker:  Coordinating the Elements for Success

May 5, 2014

The common mistake made by Federal and Postal Workers in preparing a Federal disability retirement application, submitted to the U.S. Office of Personnel Management, is in failing to coordinate the necessary elements in preparing the case, and instead focusing exclusively upon the seriousness of the medical condition itself.  This is a natural course of events, of course, if only because of the focus upon the “disability” aspect of the administrative process, which would lead one to conclude that it is the medical condition which must be of singularly defining significance in the application procedures. 

     However, such a focus can result in the disarming effect of assuming that seriousness of the medical condition itself will qualify the Federal and Postal Worker in attaining the goal sought:  An approval from the U.S. Office of Personnel Management.  But this is precisely why so many Federal Disability Retirement applications fail to be approved at the First Stage of the process – because the reliance and focus becomes narrowly and myopically targeted upon the medical condition itself, leading to the first and most substantive mistake made in preparing a Federal Disability Retirement application, whether the Federal or Postal Worker is under the old system (Civil Service Retirement System, or CSRS) or relegated to the newer system (Federal Employees Retirement System, or FERS).

     Two primary difficulties emerge when the Federal or Postal employee first begins to contemplate filing for Federal Disability Retirement benefits.  First, the potential Federal Disability Retirement applicant sees and experiences the medical condition, and begins to recognize that the medical condition is impacting one’s ability/inability to perform at an acceptable level in one or more of the essential elements of his or her job.  So far, so good.  Then, secondly, because the Federal or Postal employee who suffers from the medical condition, is obviously the same individual who will be filing for Federal Disability Retirement benefits, that individual is often unable to objectively separate him or herself as the suffering individual, from the one who must convey to the U.S. Office of Personnel Management the severity and extent of the impact upon one’s inability to perform all of the essential elements of one’s job.  Thus, the problematic conundrum of the subject’s inability to bifurcate the objectivity of one’s own medical condition from the subjective experience of the medical condition, which begins to manifest itself.

     One way in which the Federal or Postal employee attempts to compensate for this inability to be “objective” in the preparation, formulation and filing of one’s own Federal Disability Retirement application, is by blindly signing the Standard Form 3112C (Physician’s Statement) and handing it to the doctor with the simple instruction of:  “Please complete this and send it in to my H.R.”   By doing so, the Federal or Postal employee sees himself as being dispassionate and detached in delegating to the treating physician the task of preparing a comprehensive medical report.  Such delegation of preparing that which constitutes the very essence and lynchpin of a Federal Disability Retirement application is, at best, a foolhardy act of blind confidence.  And the second way of dealing in such an entirely deficient approach is to provide a Statement of Disability on Standard Form 3112A with a focal emphasis about how debilitating one’s own medical condition is, along with attached print-outs from a laborious computer search on the medical symptoms and descriptions of the medical condition, googled, downloaded and indexed for OPM to review.  (By the way, just for the Reader’s information, OPM’s administrative adjudicators have internet access, too, in their Federal offices).  A subtext of this second “mistake” is when the Federal or Postal employee prepares his or her “statement of disability” without even reviewing what the treating doctor has sent in to the Human Resources specialist.

     As for the first attempt at compensating for any lack of objectivity in the preparation, formulation and filing of one’s own Federal Disability Retirement application – by using SF 3112C, Physician’s Statement – the potential applicant needs to be fully aware that (A) Physicians rarely have the time, let alone take the time, to carefully read government forms, (B) writing one’s Statement of Disability without having reviewed what one’s own doctor has stated in a medical report forwarded to one’s own Human Resources Department may prove to be the harbinger of the negative decision made by the U.S. Office of Personnel Management, and (C) trusting that your treating doctor views your medical condition in the same way that the suffering person who experiences the medical condition sees it – again, the problem of lack of objectivity by the subject of the one who suffers from the experiential trauma – is a dangerous assumption to rely upon.

     Mistake not and confuse not; there is very little doubt that the Federal or Postal Worker who contemplates filing for Federal Disability Retirement benefits overwhelmingly suffers from medical conditions which will qualify for Federal Disability Retirement benefits.  The problem resides not in the severity or extent of the medical condition; rather, the difficulties manifest themselves in the failure to recognize what the law requires.  Proof sufficient in a Federal Disability Retirement application is not based upon the medical condition itself, but upon the nexus created between one’s medical condition and the essential elements of one’s job.  If a Federal or Postal Worker wanted to show one’s family as to the seriousness of the medical condition, one need only tell an edited version of the narrative story, or point to the medical bills paid in the past 6 months, or even to show the 10-inch thick file of medical records and say, “See!”  That would be sufficient proof for a family member.  But for proof sufficient provided to an agency whose sole job it is to review, evaluate, analyze and scrutinize the eligibility of Federal and Postal Workers who file for Federal Disability Retirement benefits, it is first and foremost an understanding of the prevailing law which governs such eligibility requirements, which must be reviewed and comprehended; then, upon such an understanding, to proceed to comply with the requirements of the criteria which governs Federal Disability Retirement laws, statutes, regulations, and precedents in case-laws.

     Treatment records; surgical procedure notations; a complete history of medical conditions; the compendium of office visits; an index of prescription medication regimens; the decade-long history and the multiple boxes of medical records gathered over the many years of one’s progressively declining health and increasingly debilitating medical condition – can they be boxed up and forwarded to the U.S. Office of Personnel Management to show that one is eligible for Federal Disability Retirement benefits?  What one “can” do, as opposed to what “should” be done, is likened to the difference between being an adult and acting like an adult.  Teenagers who reach the age of majority often think that they are adults, but there is a vast difference between being of age and acting one’s age. 

     Preparing, formulating and filing for Federal Disability Retirement benefits should have a caveat like those attached to automobile television ads where the enticing vehicle is performing mechanistic feats defying the laws of gravitational pull:  Not intended to be attempted by the ordinary driver.  While the laws governing Federal Disability Retirement benefits, filed through the U.S. Office of Personnel Management, do not require a 1-to1 ratio in ascribing one’s medical condition to a particular essential element of one’s job; nor, in most cases, does it require complete consistency between one’s statement of disability and the medical opinion of the doctor (note the operative word, “complete”); nevertheless, the coordination and cooperation between the medical statement from the doctor, supporting and guiding the Statement of Disability as formulated by the Federal or Postal applicant for Federal Disability Retirement benefits, should be carefully and conscientiously reviewed.

     Ultimately, preparing, formulating and filing for Federal Disability Retirement benefits, filed through the U.S. Office of Personnel Management, is an endeavor which encompasses three very complex arenas of life:  The Law; Medicine; and one’s own experiential trauma of a debilitating medical condition.  Such an admixture of complexity is extremely challenging for a person who is healthy and at the top of one’s form; for the Federal or Postal Worker who is suffering from a progressively deteriorating medical condition, it is more than just another hill to climb; it may require the guidance and expertise of someone who can objectively perform the feat of fealty to the laws which govern Federal Disability Retirement.

     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 mailto:federal.lawyer@yahoo.com

·         Call me at 1-800-990-7932

  Sincerely,

  Robert R. McGill, Esquire

·         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. --  7^th 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:

• 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

     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