CSRS & FERS Disability: An Art Form (Part I of II)

As with all effective submissions — pleadings, motions, legal memorandums and, alas, Federal Disability Retirement applications — it should never be approached in a mechanical, one-to-one ratio-like, mathematical manner.  Of course it should contain the technical terms, the medical terms, and the legal arguments.

However, disability retirement under FERS & CSRS — especially the Applicant’s Statement of disability and any legal arguments — should not be matter of matching up a one-to-one correspondence between the medical condition and the particular essential elements which it prevents or impacts.

Certainly, the effect and the conclusion should contain that conceptual correspondence; however, as all good writing contains a technical side, it is also important to weave the story of the human condition and see the writing as an “art” form.

The impact of the human story is important in convincing and persuading the OPM representative to not only understand the medical condition, but to get a sense of empathy for what the applicant is going through.  It is a delicate balance to achieve; yes, the hard legal arguments should be made in order to “force” OPM to see that, legally, they are obligated to approve a disability retirement application; at the same time, if you can touch the empathetic nature of the OPM representative, so much the better.

Sincerely,

Robert R. McGill, Esquire

 

See also: ”An Art Form (Part II)

FERS & CSRS Disability Retirement: The Complexity of the Simple

Federal disability retirement law, the statutes and regulations which govern eligibility; the multiple case-law opinions from Administrative Judges and Federal Circuit Judges interpreting the governing statutes and regulations; the lawyers who argue different aspects and attempt to “fine-tune” existing law (including this lawyer) — the entirety results in “making complex” that which was essentially simple.

There is an old adage that the King who declared the first law of his Kingdom was really attempting to reduce the unemployment figures by creating the need for lawyers.  Indeed, “the law” is often made more complex by lawyers.  However, while the multiple issues governing Federal disability retirement law under FERS & CSRS may appear, at first glance, “simple”, it is such simplicity which engenders the complex, precisely because laws which reflect a simple conceptual paradigm require extensive interpretation in order to explain the simpleness of the simplicity.  That is why law itself is complex.  Don’t let the complex confluse you.

As you prepare a disability retirement application, recognize that it is a complex process; at the same time, make sure to explain your medical condition and how it impacts your ability to perform the essential elements of your Federal or Postal position in an easy-going, simple and straightforward manner. Don’t make it complex; keep it simple; but recognize the complexities.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement: The Packet

It is often a good idea to understand the process of Federal Disability Retirement, in order to effectuate the best approach in winning a case.  Remember, for instance, that in all likelihood, the Applicant will not be speaking with the Benefits Specialist at the Office of Personnel Management; even if you call them (and I never recommend calling too often, for there is the “irritant” factor, which may — thinking in purely pragmatic terms — result in a First Stage Denial of your case), you will be a faceless entity, and merely one case in a long line of cases for the OPM representative to review and decide upon.

Thus, the key is to prepare your packet well — to not place superfluous medical evidence into the pile; to not just make a complete copy of your medical records (OPM is not interested in medical records dating back more than 2 years, at most, and in most cases, should only go back 1 year) and send it in, hoping that the sheer thickness of your file will convince and persuade OPM that your case is “serious”; instead, to make your packet neat, essential, and to the point. Think about it in pragmatic terms: If you have a project to tackle, and you have a choice to tackle the one with little or no effort, or that “other one” that is a headache and will consume your entire day, which one entices you?

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement: Additional Issues Concerning Resignation

An Agency has a legitimate concern with respect to the work that is not being performed while a person is either out on sick leave, or on leave without pay as a result of a medical condition.

On the other hand, Federal and Postal employees who have worked for a sufficient amount of time to be eligible for disability retirement benefits (18 months for FERS employees; 5 years for CSRS employees) have a legitimate expectation of bilateral loyalty — meaning that, inasmuch as the employee has been loyal in the performance of his or her job to the Agency, there is a reasonable expectation that the Agency will be loyal during times of medical hardship, and treat the employee with empathy and compassion.

At some point, greater friction begins to build as the time-frame keeps expanding; the Agency wants the employee back at work, or have the position filled. During the “friction” time, the employee has the leverage to have the Agency propose an administrative, non-adversarial removal based upon the medical inability of the employee to perform his or her duties. It is up to the attorney to persuade the Agency that the goal of the employee runs in the same goal-oriented direction as the Agency: the Agency wants the position; the employee wants disability retirement; both have a common end in mind — vacancy of the position so that the work of the Agency can be accomplished. On the other hand, resignation for the employee gives the employee nothing other than separation from the Agency; it gives the Agency everything it desires.

Sincerely,
Robert R. McGill, Esquire

OPM Disability Retirement: Agency Supervisors & Their Responsibility

Agency Supervisors possess powers which can be easily misused.  As such, the Supervisor who must fill out a Supervisor’s Statement — Standard Form 3112B — for the disability retirement applicant, must do so with care, integrity, and a sense of reasoned perspective and fairness.  “But I’m only telling the truth of what I believe,” is often the justification of a Supervisor who deliberately inserts damaging, self-serving and derogatory remarks on the Supervisor’s Statement. But such “truth” goes beyond the proper role of a Supervisor.

Indeed, it is often helpful to discuss the content of intended remarks and statements with the Federal or Postal employee first. Such consultation provides a true and balanced opportunity — a field of fairness and a reasoned perspective — to ensure that a Supervisor is indeed being fair, balanced, and neutral, and not allowing for any personal “feelings” of acrimony or animosity to dilute and pollute a fair appraisal of an employee’s performance, conduct, and impact upon the Agency’s purpose, mission, and goals intended and accomplished.

For, ultimately, a Supervisor’s Statement is not about what a Supervisor’s “belief” is; it is not about whether the Supervisor likes or dislikes a Federal or Postal employee; rather, it is supposed to be a balanced, objective perspective delineating the impact of a Federal or Postal employee’s performance or conduct, relative to his or her medical condition and the ability of that employee to perform the essential elements of a job.

Sincerely,

Robert R. McGill, Esquire

Federal Disability Retirement Attorney