OPM Disability Retirement: Argument by Analogy

Attorneys argue “by analogy” all of the time; cases and decisions from the Merit Systems Protection Board, and language from the Federal Circuit Court of Appeals, provide the fertile fodder for such argumentation.  Thus, such issues as to whether the Bruner Presumption should apply in the case; whether a case is similar to previously-decided Federal Disability Retirement cases; the similarity of fact-scenarios and legal applications — they are all open to argument by analogy.

That is why case-citations are important — even in arguing a Federal Disability Retirement case to the Office of Personnel Management.  Whether and how much influence such legal argumentation can have at the first two stages of the disability retirement application process, may be open to dispute; but cases should never be compiled and prepared for the first or second stage alone; all disability retirement applications should be prepared “as if” it will be denied and will be presented on appeal to the Merit Systems Protection Board.

Such careful preparation serves two (2) purposes:  First, for the Office of Personnel Management, to let them know that if they deny it and it goes on appeal to the Merit Systems Protection Board, they will have to answer to the scrutiny of the Administrative Law Judge; and Second, for the Administrative Law Judge at the Merit Systems Protection Board, to let him or her know that you did indeed prepare the case well, and that your particular Federal Disability Retirement application conforms to the law, and should therefore be approved.

Sincerely,

Robert R. McGill, Esquire

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 Perspective from the Office of Personnel Management

In effective argumentation, persuasion, written memoranda, oral presentation, and the entire spectrum of attempting to convince the “other side” of the validity, force, appropriateness, and viability of any administrative or legal filing of any nature, it is often a useful tool to attempt to view an issue from that “other” perspective.

Remember that, in filing a Federal disability retirement application under FERS or CSRS, it is good to consider the fact that the OPM representative who will be reviewing your particular application, merely sees your application as one among hundreds of files assigned to him or her.  With that in mind, the essential question becomes: How can my particular application, as one among many, be reviewed in such a way that it “stands apart” so that it will be quickly approved? If you ask that question, or any variation of such a question, then you may be taking a wrong approach.

Remember that filing for disability retirement under FERS or CSRS is not like applying for a job; you are not filing a resume that needs to stand out; rather, it is often best if your particular application is nothing more than a “run of the mill” application — with strong, unequivocal and irrefutable medical evidence, along with strong legal arguments to support your case.

Yes, of course your Applicant’s Statement of Disability should explicitly describe the human condition of medical disablement; yes, the “nexus” between your medical condition and your job should be carefully constructed; but no, your application should not necessarily “stand out” as uniquely different — for such an application will often be viewed as “suspicious” and “over-stated”, and may well lead to not just a first viewing, but a re-viewing, and a possible denial

Sincerely,

Robert R. McGill, Esquire

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)