Don’t Fill Out the OPM Standard Forms before You Know the Law

— Is a man wise for saying the right things? If a man says the right things but acts contrary to his own wisdom, can he be deemed wise, or merely a foolishly wise person? What of the man who says the wrong thing but acts as a wise man should? Does he merely play the fool but act the sage? That is, of course, the brilliance of Shakespeare, where the fool is a stark contrast to the king, where words possess double and triple meanings to confound the distinction between words and action, fools and sages, and the unknowable chasm between them.

— From Knowledge, Truth and Shakespeare

In undertaking any endeavor, one should never engage the activity until one has thoroughly analyzed and understood the overarching rules which govern the enterprise, whether it is in sports, a trade, a craft – or applying for a benefit at the Local, State or Federal level. Would you advise your child to play football without first going over the rules? Would you hand a power tool to a novice? Or entrust a large sum of money to an individual who possesses no knowledge about financial management? Yet, many Federal and Postal Employees who have little or no knowledge of the statutes, rules, regulations or laws governing Federal Disability Retirement will complete the “forms” which comprise the heart of a Federal Disability Retirement application, with scant concern or inkling of the consequences, intended or otherwise.

As in any evolving, organic complexity of law, the governing rules which expand the administrative process of Federal Disability Retirement change daily, weekly, monthly, etc. It is simply the “nature of the beast”, and one cannot be expected to “know” the fine minutiae of what constitutes an effective Federal Disability Retirement application, unless one first has at least a rudimentary understanding of the legal context from which the process has expanded. Local lawyers shy away from representing Federal and Postal workers in preparing, formulating and filing for Federal Disability Retirement benefits, if only because the complexity of the aggregate process scares them away. There are only a handful of attorneys who have the technical knowledge to successfully guide and maneuver the Federal or Postal employee through the morass and maze of the administrative process, and yes, it has indeed become that “technical” in nature.

The problem can be generally categorized as one involving 3 basic issues: (A) For the Federal and Postal employee contemplating filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, the stakes are extremely high because such benefits will ensure not only financial stability for the future, but moreover, will allow for some opportunity for physical and psychiatric rehabilitation and recuperation; (B) The aggregate of statutes, laws, case-law, applicable standard of proof; applicable legal criteria to meet; legal standards as applied by the Office of Personnel Management, comprise a universe of complexities which require study, constant updating, and an understanding of the Federal administrative process itself; and (C) dealing with the agency, the various Human Resources offices; understanding the purpose behind the standard forms which need completion, and more importantly the underlying legal requirements behind the questions asked, etc. — require insight, understanding and often the most valuable of commodities: experience. The conglomeration of such difficulties, of course, is not necessarily unique to Federal Disability Retirement, but apply nevertheless. It is merely a mundane fact in a world of complexities.

While the full universe of complexities can never be explicated in any single article, timeframe or discussion, precisely because (a) each case is unique in and of itself, and thus must be tailored to accommodate such particularities, (b) any step-by-step explanation of the substantive and procedural order of preparing, formulating and filing for Federal Disability Retirement benefits will be inherently inadequate to assimilate all of the distinguishing differences of each individual case, and (c) it is precisely the context and content of the details of each particular case which must guide any Federal Disability Retirement application – as such, the best course of action one can take is to reduce any introductory forum in explaining the administrative process into some “principles” to follow. Three (3) such general rules which all Federal and Postal employees who are contemplating filing for Federal Disability Retirement benefits should include:

1. Don’t let your guard down because of the applicable Standard of Proof. The Federal or Postal employee who is just investigating the possibility of filing for Federal Disability Retirement benefits might well ask a question which would naturally occur as a precondition: What is the applicable Standard of Proof, and why is it important to know? The applicable Standard of Proof in all Federal Disability Retirement cases is “Proof by a Preponderance of the Evidence”, which means submitting all evidence in proving a Federal Disability Retirement application such that it is more likely than not that one’s claim for medical disability is true. This is a fairly low standard in the realm of legal standards. Why does one need to know what the Standard of Proof is, and if indeed it comprises so “low” a standard on the totem poles of legal standards, why would there be a problem associated with it? Not knowing the legal standard of proof can lead to a myriad of difficulties, precisely because the standard forms which must be completed – especially SF 3112A (Applicant’s Statement of Disability) — is formulated in precisely such a simplistic manner as to lull the unwary into thinking that the process is an easy one. However, while the question may be simple in its affectation, the answers should be precise, concise, and with a view towards meeting the highest standard of proof.

2. Don’t let the Office of Personnel Management dictate the law. At the two administrative levels of filing for Federal Disability Retirement benefits (i.e., at the initial filing stage, as well as if denied, at the Second Level, the Reconsideration Stage of the process), the U.S. Office of Personnel Management purportedly “applies the law” by comparatively analyzing a Federal or Postal employee’s Federal Disability Retirement application against a “7-part” criteria. Whether the listed criteria are in fact applied is somewhat questionable; how it is applied is a conundrum. Often, in a denial letter issued by the U.S. Office of Personnel Management, the OPM “Disability, Reconsideration and Appeals Specialist” will list and purportedly discuss the various documents and medical reports submitted as part of the Federal Disability Retirement application, then go on to state something like: “However, you have not shown that your medical condition incapacitates you to the extent that it creates a risk of harm to yourself or others in the workplace.” What? Is this an application of the lowest of the legal standards – Preponderance of the Evidence? Not by any stretch of one’s imagination. The dictates of law are sometimes created out of an imaginary universe of inventiveness. The mere fact that X sounds “legal”, does not make it so. Further, the mere fact that the Office of Personnel Management asserts X, does not make it true.

3. Don’t let the law prevent you from asserting your rights. Or, to put it more precisely, the Federal or Postal employee who has filed for Federal Disability Retirement benefits should not allow lack of knowledge of the applicable laws prevent him or her from obtaining the benefits rightfully eligible and entitled. There are certainly enough informational resources available for any Federal or Postal employee to access and come to a fundamental understanding of the legal framework of a Federal Disability Retirement application. Even OPM’s own website can be a valuable resource tool in preparing and properly formulating one’s Federal Disability Retirement application.

The point of any endeavor is not only to perform X – but to perform X excellently. Moreover, where the nature of one’s performance leads to a consequence and a result, and where the end product provides a secure future, financial stability, and the opportunity for rehabilitative convalescence, then the stakes in performing well are indeed high. In criminal law, ignorance of the law is never an excuse for a violation of the law; in administrative law, especially in preparing, formulating and filing for Federal Disability Retirement benefits, whether under FERS or CSRS, ignorance of the laws governing the benefit may well result in consequences which are inexcusable, especially where one’s financial future stability is at stake, and where the opportunity for one’s rehabilitative care may allow for further productivity in the marketplace of economic activity. Taking a moment to understand “the law” prior to entering the arena of Federal Disability Retirement is a precondition for success; ignoring the precondition would not violate any laws, but rather, undermine the first principle of wisdom.

I am an Attorney who represents Federal and Postal workers from all across the United States, including Alaska, Hawaii and Puerto Rico. I do not charge for an initial telephone consultation; thus, if you believe that you need to consult an attorney concerning Federal Disability Retirement, please contact me in one of these ways:

Sincerely,

Robert R. McGill, Esquire

 

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