By 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.”
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