Tag Archives: legal arguments in the federal disability application

CSRS & FERS Disability Retirement: The Decision (Again)

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Yes, it is a difficult decision to make — to come to terms with filing for Federal Disability Retirement under FERS or CSRS.  It makes it all the more difficult when individuals wait until the last possible minute before calling up the attorney (me) to file for Federal Disability Retirement benefits.  There have been a few times in the past (very few) when I simply could not take on a case with only a week left before the Statute of Limitations runs out.  The only thing I can do at that point is to identify which forms to fill out (however imperfectly), and give the fax number and the address to Boyers, PA for the individual to file.

Remember the important point:  You can always make factual, medical and legal arguments after you have filed; you cannot make any arguments if you have failed to file on time.  Of course, it comes with the territory — as an attorney who exclusively represents Federal and Postal employees to obtain disability retirement benefits (there are many attorneys who practice Federal Disability Retirement law as one aspect of a larger practice which includes other areas of Federal Employment law), I understand how intertwining the medical condition is, with the anxiety and stress of filing for Federal Disability Retirement benefits, and how procrastination is often part and parcel of the medical condition itself.

At the same time, however, I take pride in doing a good job; I like to service my clients; I like to see the successful outcome.  As such, I am reluctant to take on cases where there is very little time to file.  I have, and will, take on cases where the Statute of Limitations is about to run out, but there must be at least some time left.

Sincerely,

Robert R. McGill, Esquire

FERS Disability Retirement: The Layman

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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: An Art Form (Part II of II)

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In constructing the narrative of one’s story of the human condition and how it impacts the essential elements of one’s Federal or Postal job, it is important to weave the story such that it relates as a story.  Every story has a beginning and an end; every story must contain the elements of an effective narrative:  What has occurred; the symptoms; the diagnosis; how the symptoms impact upon one’s ability to perform one’s job; what are some of the essential elements of one’s job; as well as some impact upon one’s personal life.

Now, the Applicant’s Statement of Disability has appropriate sections to “fill in the blank”; but one’s story should not be merely a matter of filling in the blank; instead, it should be a narrative — a coordination of the story, consistent with the medical narrative report obtained from the doctor; and finally, a legal memorandum arguing the law.  The weaving of these elements, in my experience, constitutes what I consider to be a successful disability retirement application.

Sincerely,

Robert R. McGill, Esquire

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

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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)”

OPM Disability Retirement: The Administrative “Process”

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I have previously written about how a Federal Disability Retirement application should be prepared:  that it should be looked upon as an administrative “process”, and as such, it is not like taking a test for a driver’s license, or filing an application to obtain a permit — both of which are similarly “administrative” issues.  The reason why filing for Federal Disability Retirement benefits under FERS or CSRS is different, and is a “process” as opposed to merely filing an “application” for something which will be essentially rubberstamped, is that it requires proof which must meet a certain statutory legal standard — it requires that one prove, by a preponderance of the evidence, that one is entitled to receive disability retirement benefits.

Now, wherever “proof” of eligibility is required, there can be a disagreement as to whether or not such proof met the statutory eligibility requirements.  Other applications, such as filing for a Social Security Card, may also have certain statutory requirements, but normally such administrative applications are fairly “cut and dry” — such as, certain documents will be accepted to prove X, or certain forms may need to be filled out to obtain Y.  But where a legal standard of proof must be met, differences between the Applicant and the Agency may erupt.

OPM may state, and argue, that the medical documentation, the Supervisor’s Statement, the Agency Certification of Accommodation efforts, the comparison between the applicant’s Statement of Disability and the doctor’s statements and notes — did not rise to the level of meeting the legal standard of “preponderance of the evidence”.  This is where many people get themselves into trouble — by thinking that it is merely an “application” to file in order to obtain an administrative benefit.  Then, when it gets denied at the first level, applicants become devastated, thinking that it is the end of the world.  From the outset, it should be looked at as a “process” — one which may take going to the Merit Systems Protection Board, or even further, to the Full Board Review, and then, if necessary, to the Federal Circuit Court of Appeals.

Sincerely,

Robert R. McGill, Esquire

Common Mistakes in Filing for CSRS & FERS Disability Retirement (Part III)

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Words are peculiar animals; they are meant to convey meanings through stringing together, creating conceptual models, images, descriptive thoughts.  Thus, one would think that the greater quantity of words would lead to a greater level of thoughts conveyed, images created, etc.  However, what often happens (a common mistake found in unrepresented applicants who file for disability retirement under FERS & CSRS) is that there is a ‘fatigue factor’ by the reader: in this case, the reviewing person at the Office of Personnel Management.
People often either overstate his or her medical disability, or tend to think that pages and pages of a stream-of-consciousness narrative about one’s medical conditions will persuade the reviewer of the seriousness of the medical condition.  Neither are necessary.  Let the medical condition itself speak to the seriousness.
The applicant does not need to overstate it; and a voluminous narrative only points out and emphasizes a suspicion that there is some underlying reason as to why you feel the need to explain yourself so much.  Use of words is a ‘balancing act’ — using the right words; explaining the right amount; creating the right string of thoughts and images.  An effective disability retirement application must find the right balance of all of these elements.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Stating it effectively

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Whether an attorney is necessary at the initial stages of filing for OPM Disability Retirement is a question which each individual must answer. One thing is clear, however; there are very few cases where a disability retirement application is “clear-cut” based upon the medical evidence. The reviewing personnel at the Office of Personnel Management are not doctors — though they have a “contract doctor” to review applications.

It is the job of an attorney to be the advocate for the client; as such, the tools which the attorney utilize are: words, and the power of words. In taking over cases at the Reconsideration Stage, or the Merit Systems Protection Board, the mistakes that I see which clients have made prior to representation always involve ‘words’ — either too much, or too few, or stated in the wrong way, or not at all.

Verbosity is rarely an asset or advantage; being succinct is almost always the better way; wise choice of words is a must; the order of delineating the medical disabilities, creating the nexus between the medical disability and the inability to perform one’s job — all of those must be stated forthrightly, descriptively, and with a touch of creativity.

Sincerely,

Robert R. McGill, Esquire