CSRS & FERS Disability Retirement: Beware the Layman

Federal employee attorneys create and manufacture a parallel universe of statutory interpretation, legal argumentation, case-law citations, and extrapolations from esoteric provisions in arguing the “finer points” of law.  Thus, it is a temptation for the lay person — the “non-lawyer” — to attempt to borrow from cases and take a stab at citing case-law and statutory authority in trying to garner support for his or her Federal Disability Retirement application.

In taking on a case at the Reconsideration Stage or the Merit Systems Protection Board, I have the opportunity to read some of the “legal arguments” which non-lawyers have attempted to make.  While many such arguments are valid, some (i.e., too many) mis-cite the law, and often fail to understand and proffer the substantive import of what the cases are saying.  On top of it all, I suspect that the Office of Personnel Management gets a bit annoyed when a non-lawyer applicant attempts to preach the law to another non-lawyer OPM Representative.

A word to the wise:  let lawyers entertain themselves in the parallel universe of the law; let the doctors render their medical opinions; let the non-lawyers make the best arguments possible, in simple language.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: The Purpose of Case Law Citation

Is it necessary for a Federal Disability Retirement Applicant to cite relevant case-laws and statutory authority when filing for disability retirement? Or, should the medical evidence be sufficient? Certainly, there is no statutory requirement that “the law” be referenced when filing for disability retirement. And, further, it is normally not a good idea for a non-lawyer Federal or Postal employee to refer to case-law or relevant statutory authority, if only because non-lawyers often mis-state the law, or misinterpret relevant case-law authority.

The primary purpose why I refer to, and cite relevant statutory authority and case law, even at the initial administrative stage of filing for disability retirement on behalf of a Federal or Postal employee (normally, I will prepare a lengthy legal memorandum for each case), is because I want to preempt any mis-statement of law to the benefits specialist reviewing the application packet. It is important at each stage of the process to point out the relevant law, the applicable case-law, the judicial opinions which have addressed the multiple issues which can deter or potentially derail a disability retirement application. While the benefits specialist at the Initial Stage of the process may not be fully aware of the applicable laws, it is the job of the Attorney to point out the law, and demand that the Office of Personnel Management conform to the relevant, current judicial constraints which should be adhered to.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Connecting the Dots

Care at every step of the way in preparing an OPM disability retirement application is the key to winning. The metaphorical “dots” that need to be created and connected, will ensure that each aspect of a disability retirement claim is not seen as independent entities, but a part of a larger whole.

When an individual is unrepresented, there is a tendency in filling out the multiple forms that each form is a separate piece of information. That is an incorrect approach to take. What results from such an approach is why certain cases end up at the Merit Systems Protection Board, where the Board has to figure out whether they can accept a medical condition that the applicant failed to list or identify in the original application; or whether the connection to an essential job element was properly made.

While it is true that the Board engages in “de novo” consideration of a disability retirement eligibility issue, their jurisdiction is nevertheless limited by the substantive conditions which are identified in the original application. Thus, for instance, in writing up the Applicant’s Statement of Disability, it is wise to coordinate it by reviewing the medical documentation; when writing up the impact of the medical condition upon the essential elements of one’s job, it is wise to concurrently review one’s official job description. While preparing a Federal Disability Retirement application in a disjointed, independent approach, you are in danger of missing an essential dot; by seeing the inter-dependency of each part of the application, you stand a greater chance of not having to go before the MSPB to test whether they can even listen to your case. Disability retirement applications must be approached in this “wholistic” methodology; that is ultimately the “winning” approach, where all of the dots have been connected.

Sincerely,

Robert R. McGill, Esquire