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Federal Disability Retirement Under FERS & CSRS: The Approach
Robert R. McGill, Esquire
Student: "Master, should a man of integrity have more
than one face?"
Zen Master: "Does a single face show integrity, or a
single dimension?"
Student: "But shouldn't a man of integrity be the
same always?"
Zen Master: "Will a man in battle have a fool's
smile? Will a messenger not act the fool to gather information for his
prince? Will the warrior not smirk at his captors and laugh in the face of
death? Likewise, the dimensions of man are many; it is merely the soul of
man which is one."
-- Koan #324 of Master Tokuzawa
An attorney who exclusively handles federal disability
retirement applications under FERS and CSRS must always be careful to avoid the
"cookie-cutter" approach. Each case is unique and different; each
individual has specific medical conditions with unique symptomatologies,
resulting in specific ways in which the diagnosed medical conditions impact upon
one's inability to perform one or more of the essential elements of one's
job.
Such dangers -- of treating all cases in a similar manner -- are probably
common for all lawyers in almost every practice of law; but in federal
disability retirement law, because the crucial point of proving a federal
disability retirement case most often revolves around the direct connection
between the specific medical condition and the unique elements of the particular
federal or postal job involved, it is especially important to treat each case
independently.
This does not mean that there aren't general principles of law involved,
which are applicable to all cases. Rather, it means that, when a lawyer
who specializes in federal disability retirement law -- at every level, be it
before the Office of Personnel Management (the Initial Stage or the
Reconsideration Stage), the Merit Systems Protection Board (at the Hearing Level
or at the Petition for Full Review), or the federal circuit court -- represents
a client to obtain disability retirement benefits, the approach for each case
must be tailored to fit the particular facts, the available medical evidence,
and the potential review which your case may be subjected to.
This is the very reason why an individual should rarely represent him or
herself in filing for federal disability retirement benefits under FERS or
CSRS.
The reason is not because all lawyers who practice in this area of law are
deserving of the fee paid; rather, it is because a federal or postal employee
who is preparing to file for disability retirement benefits, is simply "too
close" to the very case which is being prepared. The very emotional
involvement of the disability retirement applicant, in preparing the Applicant's
Statement of Disability (SF 3112A), is exponentially magnified precisely because
it is such a personal saga.
The writing of one's medical condition, with all of the attendant descriptive
narrative about the mental, physical and emotional pain, coupled with attempting
to describe how that pain impacts the end of one's lifelong career -- is quite
simply too painful to convey in a persuasive, reasoned and convincingly
argumentative manner. Similar to the experience that Charles Dickens
confronted when writing his autobiographical novel, David Copperfield, it is no
less a painful and trying experience for a federal or postal employee to write
the autobiographical narrative in attempting to persuade some unknown face at
the Office of Personnel Management that one's career-ending medical condition is
worthy of consideration, for approval of a disability retirement annuity.
The role of the attorney is to bring a proper and balanced perspective to an
otherwise painful chapter in the life of the federal or postal employee who must
confront the necessity of recognizing two very stressful but interconnected
issues: the increasingly debilitating medical condition, and the
decreasing ability of the federal or postal employee to be effective in the
workplace; and the intimate, intertwining of the two. It is in the
tailored approach of the lawyer who specializes in Federal Disability Retirement
law -- of sufficiently delineating the seriousness of the medical condition in
descriptive terms, applying the proper adjectives and use of "word-pictures",
but with a balanced perspective, walking a tightrope between too much
emotionalism and yet with an objectivity approaching the sterile clinical voice
of the doctor; and the detailed, but not overly-complicated characterization of
the essential elements of one's job -- which presents to the OPM representative
the persuasive foundation which will lead to an approval of a disability
retirement application.
Is it possible for a patient to treat himself? Of course it is -- and
many people who file for federal disability retirement benefits under FERS or
CSRS can be, and are, successful in their attempt (although, judging from the
number of people who come to me to represent them at the second, Reconsideration
Stage, I often wonder how many actually are successful). However, it is at
a minimum difficult -- and highly stressful -- for the patient to treat
himself. That is why, in reviewing a case wherein the federal or postal
employee attempted to obtain disability retirement benefits at the First Stage
of the process, the greatest common thread as to why it was denied at the First
Stage, is that too much information was provided, in a "stream of consciousness"
manner, where the pain, emotion, and stress of the life-changing endeavor of
filing for disability retirement, is poured out onto the Applicant's Statement
of Disability.
An attorney representing a federal or postal employee to obtain disability
retirement benefits, must bring to the forum -- whether at OPM or at the Merit
Systems Protection Board -- a sense of objectivity beyond the subjective pain
and inability to work of the individual. How is this done? How can
an attorney do this? Listen, for instance, to what the law says on the
matter: "In determining the ultimate fact of disability, the appellant's
own testimony of subjective pain and inability to work must be seriously
considered, particularly where it is supported by competent medical evidence"
Shanoff v. OPM, 2006 MSPB 298, citing Carter v. Office of Personnel Management,
64 M.SW.P.R. 619, 626 (1994); McDonald v. Office of Personnel Management, 50
M.S.P.R. 164, 171 (1991). How does this statement shed light on the issue
of whether an individual can represent himself, or whether an attorney is
needed? Here is how:
That statement, when analyzed, reveals the very essence of how the Merit
Systems Protection Board -- and therefore the Office of Personnel Management --
evaluates a disability retirement case. The administrative judge looks at
three basic components of the case:
- The appellant's own testimony
- How the appellant's own testimony is supported by competent medical evidence
- Leads to the determination of the ultimate fact of disability
Thus, there is an intricate balance between the "objectivity" of the medical
evidence, and the "subjectivity" of the applicant/appellant's own story.
To put it another way, the applicant's story of medical disability is given
credibility by the medical evidence presented, while at the same time, the
medical evidence given can only be understood in the context of the applicant's
own statement of disability. The two must be carefully balanced in
presenting a case before the Office of Personnel Management (and, if necessary,
to the Merit Systems Protection Board), and it is the role of the Attorney to
bring that sense of balance and objective perspective in presenting a
case.
About the Author
Robert R. McGill is an attorney who specializes in federal disability
retirement, a practice area he dedicates 100% of his time helping Federal and
Postal workers secure their disability retirement benefits under both FERS and
CSRS. For more information about his legal services, publications and forum,
please visit his CSRS
and FERS Disability Retirement Website
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