It is always a good idea to review statements made, declarations asserted and advice given in spheres of influence, legal or not, just to ascertain the validity of what was stated in the past. Then, if “updates” are necessary, or one can “add to” the value of past observations, such modifications may be fruitful and, more importantly, expand the knowledge previously gained. The 10 dos and don’ts previously annotated in a prior article included: Do not assume; Do not wait; Do respond affirmatively; Do ask outright of the doctor; Don’t count on bilateral loyally from the U.S. Postal Service; Do not believe everything the Postal Service tells you; Do provide a ‘totality of evidence’ approach in preparing a Federal Disability Retirement application; Do emphasize the credentials of your doctor; Do not act as your own lawyer; Do present your case in a streamlined, professional manner. While those 10 dos and don’ts are still relevant and apply today, it is always wise to revisit and refresh the underlying rationale in following such dictates of guidance, and to add some more in preparing, formulating and filing an effective Postal Disability Retirement application, to be filed with the U.S. Office of Personnel Management. Thus, some further Dos and Don’ts:
- Do become familiar with the basic criteria of Postal Disability Retirement. Your parents may or may not have emphasized the importance of doing your homework. Such emphasis, now that you are older and wiser, should be applied when preparing one’s Postal Disability Retirement application for the U.S. Office of Personnel Management. The basic eligibility criteria, of course, can be easily gleaned from OPM’s website: for FERS employees, a minimum of 18 months of Federal Service and the existence of a medical condition that prevents the Postal employee from performing one or more of the essential elements of one’s Postal position. As with all endeavors and administrative engagements, however, there is the initial, somewhat-superficial rules that apply; then, there are more “secondary” and detailed issues to identify and ascertain in gaining further knowledge of the process — questions about accommodations and reassignment; of resignation as opposed to separation and termination; and whether you can work during the process, to what extent and for how long; and many further questions besides. Basic familiarity is a given; detailed analysis is a must; complete understanding is recommended in preparing, formulating and filing an effective Postal Disability Retirement application.
- Do use the available law to your advantage. The law can be used both as a sword as well as a shield. If the former, it is utilized to advance your cause; if the latter, as a defensive mechanism to counter the aggressive parry of one’s opponent. Preemptively use the law in guiding the U.S. Office of Personnel Management into approvbility Retirement application. Anticipate the arguments that may arise; if the Postal Service is about to separate you from Federal Service for excessive use of SL or because you have been on extended LWOP, negotiate the terms of the termination in order to have the right to assert the Bruner Presumption.
- Do not necessarily believe what the Postal Service tells you. In the previous formulation of the 10 Dos and Don’ts, the admonition was, “Do not believe everything the Postal Service tells you”. Here, the slight twist is: Do not necessarily believe what your agency tells you. It may well be that the U.S. Postal Service is honest and forthright; that your Human Resource Office will provide you with the correct information, and even that they will “work” with you during this difficult time in your life. However — and this is the caveat and the care that needs to be taken when relying upon an Agency’s direction and advice — when the Postal Facility begins to suspect that you will no longer remain as part of the “team” in pursuance of the Postal Service’s “mission”, your status as an outcast will be reflected in the selective information given and revealed. As human nature is inherently one of a herd-mentality, it is best to take the approach of a well-known figure when considering information from a source that may no longer be looking out for your best interests: trust, but verify.
- Do not wait until the last moment. Again, this is a slight variation from the previous recommendation, which stated simply: “Do not wait.” Procrastination makes for unnecessary emergencies, and while medical conditions tend to take up all of the focus and energies needed just to get through a given day, the most effectively formulated Postal Disability Retirement applications are the ones that have been prepared with foresight, care and deliberative intent. However, as life often interrupts the best-laid plans, so medical conditions have the tendency and effect of delaying the completion of multiple other facets of daily living activities, and so the following admonition is applied: If you do not file on time, you will be precluded from making any arguments at all; if, on the other hand, you at least file before the deadline, you can always supplement later.
- Do be careful in completing the Applicant’s Statement of Disability. Standard Form 3112A is the core and essence of a Federal Disability Retirement application. The questions on SF 3112A appear to be simple enough, but the question that most people fail to ask and have answered is: Are there legal consequences if certain questions fail to be answered in a particular manner? The simple answer to such a query is: Yes. Many people believe that if you just list the major diagnosed medical conditions, gather up a few medical records that show that you have been medically identified to suffer from such conditions, package it all together and ship them over to the U.S. Office of Personnel Management, that somehow the bureaucratic process will recognize the seriousness of it all and grant you your Postal Disability Retirement benefits. Good luck with that approach.
- Do be the gatekeeper of the information conveyed. It is never a good idea to rely upon the good intentions of others, if only because one’s definition of “good” and that which constitutes “good intentions” can never be presumed. As the burden of producing evidence sufficient to meet the legal criteria of “preponderance of the evidence” is placed upon the Postal Disability Retirement applicant, so the responsibility of that which is submitted can be determined by the Applicant him/herself, or his/her attorney. Always review everything before it reaches its final “destination point” — the U.S. Office of Personnel Management.
- Do prepare each stage of the process as if it will require the next. While it is true that each Stage of the Administrative Process called “Federal Disability Retirement” is unique, important and self-sufficient in and of themselves — and while we all hope that there will be no need to go to the “next” stage — nevertheless, a little bit of preemptive foresight is always a good idea. The First Two Stages of the bureaucratic process (i.e., the Initial Stage of the application and the “Reconsideration” Stage of the process are both before the U.S. Office of Personnel Management, while the “Third Stage” of the process is an administrative appeal before a Judge at the U.S. Merit Systems Protection Board) may not require preemptively extensive legal argumentation, inasmuch as OPM’s “medical specialists” are not lawyers and care little about the governing law. Nevertheless, making sound legal arguments is often a necessary pre-condition in preparing for the Third Stage of the Administrative process — before an Administrative Judge at the U.S. Merit Systems Protection Board — and it is a good idea to “prepare the groundwork” for that possible eventuality by arguing the major legal precedents during the first two stages of the process in anticipation of the possibility for appearing before the U.S.Merit Systems Protection Board.
- Do not unduly focus upon the details of a denial. Each Stage of the Postal Disability Retirement process is independent of the other, to a great extent. The added “qualifier” — “to a great extent” — is meant to apprise all Postal Disability Retirement applicants, potential or otherwise, as to the practical impact of receiving a denial at the First, Initial Stage of the Process, or at the Second, Reconsideration Stage of the process. Each stage is viewed de novo — as new, starting over again, etc. Thus, to try and rebut point-by-point the rationale or reasoning of the First Stage OPM’s “Administrative Specialist” is somewhat of a waste of time, as the person who will be reviewing any newly-submitted evidence at the Second, Reconsideration Stage will not be relying upon the reasons for the denial propounded at the First Stage. This is not to say that the Applicant shouldn’t consider the general reasons and specific rationales given as to “why” one’s Federal Disability Retirement application was denied at the First Stage — only that a “point-by-point” refutation is often an act of futility. The same general rule applies to a Second, Reconsideration Denial — for, at that point, it becomes a “game-changer” in that the de novo process will be taken up in a completely different forum: Before an Administrative Judge at the U.S. Merit Systems Protection Board.
- Do calculate time-frames on the “conservative” side. Yes, yes, it does “say so” — that you have thirty (30) days from the date of the letter in which to respond to an Initial Denial, and 30 days from the date of a Reconsideration Denial to file an appeal with the U.S. Merit Systems Protection Board — or from the date you received the denial. However, it is always a good idea to take the date of the letter and respond in a timely fashion using that date, instead of the more “flexible” date of when you received the Letter of Denial. Perhaps it will seem “unfair” that there was such a lengthy delay between the date of the letter and the date you received the letter; however, as life is often full of unfair events, so this one should be viewed with a similarly dispassionate perspective. As a general rule, that which can be ascertained as an indisputable fact (like the stated date on the denial letter) has the greater basis of reliance than one which can be later disputed (like the date one “received” the denial letter).
- Do not turn your responses into a personal vendetta. Be professional about it. It is sometimes difficult to provide a Reader’s Digest version of the history of the medical condition and be your own harshest editor, but understand that the central focus of the reviewing “specialist” at the U.S. Office of Personnel Management who will make the decision upon your Postal Disability Retirement application does not have the time, inclination or desire to sift through tangential and irrelevant meanderings in your Applicant’s Statement of Disability as reflected on SF 3112A. Going on a tirade about how the Postal Service failed to accommodate you is not the issue; what attempted accommodations were provided and how they failed, might be — but only if stated in an objective, dispassionate manner.
Lists which purport to identify X-number of this or that rarely comprise an exhaustive compendium of the things that need to be done, and this list by no means accounts for all of the intricacies involved in preparing, formulating and filing an effective Federal Disability Retirement application, to be submitted ultimately to the U.S. Office of Personnel Management. Indeed, here’s another “Commandment” that should be followed: Do not try to be your own lawyer. Law is a peculiar animal; its technical nature and complexities often challenge the best of us, but more importantly, legal principles tend to have tentacles that reach beyond a simple understanding gleaned from a synopsis discovered on the Internet, whose source has not been ascertained and where validity is questionable.
Postal Disability Retirement is a specialized area of law that cannot easily be condensed into an abbreviated list of 10 dos and don’ts, but these Ten Principles listed herein, in addition to the previous ones discussed in a prior article, may provide some useful “tips” in preparing, formulating and filing an effective Postal Disability Retirement application with the U.S. Office of Personnel Management. The operative concept here, of course, is encapsulated by the word “effective” — for, why else would you expend your time, effort and resources in applying for a benefit which must be proven by a preponderance of the evidence, unless it has become a necessary contingency leaving little choice in the matter? Effectiveness is gained not by chance or unplanned circumstances, but by taking a deliberative approach in preparing, formulating and filing based upon knowledge and gained wisdom, and the principles underlying any efficacy of endeavors must always begin by knowledge gleaned from past experiences, or from a lawyer who is experienced in such matters.
Robert R. McGill, Esquire