The samurai must master three things: the sword; the horse; and fear. Of the first, technique is critical; of the second, artistry of balance and kinship with the animal; of the last, it is beyond the wisdom of the sage to know who can overcome such an insurmountable obstacle.
From Tokugashi: the Code
What are the roadblocks and obstacles for a Federal Disability Retirement application, filed through the U.S. Office of Personnel Management, whether under FERS or CSRS? Life is full of analogies and apt metaphors which cross cultural and vocational lines. For example, why do some athletes blessed with all of the proportionally effective physical attributes fail to achieve their maximum potential? Remember game 7 of the NBA playoffs between the Chicago Bulls and the Detroit Pistons (this will reveal what generation the reader is from) in 1990? Scottie Pippen and the Migraine of the Century. Aside from Michael Jordan, the player who possessed all of the physical attributes to singlehandedly dominate the Bad Boys of Detroit was suddenly a “no-show” – except that, in the end, it was not the physical skills which mattered, but the psychological roadblock which decided the seventh and final game of the Eastern Conference Finals.
Similarly, in a Federal Disability Retirement application, whether under FERS or CSRS, from the U.S. Office of Personnel Management, it is likely the psychological roadblock which artificially manufactures the first and greatest obstacle for a Federal or Postal Worker. Why is that? For two primary reasons: First, Federal Disability Retirement is rarely the first option of choice. In a nation where the Puritan Work Ethic still resonates despite recent reports of government largesse in welfare assistance programs, the idea that a Federal Worker (including Postal Workers, who are also under the identical program of FERS, CSRS, and Federal Disability Retirement benefits) would readily opt for a severe pay cut is laughable at best. While Federal Disability Retirement pays 60% of the average of one’s highest-3 consecutive years of pay for the first year of annuity, and 40% every year thereafter (See, e.g., 5 U.S.C. 8452 (a) (1) (A) ), and while the Federal Disability Retiree/annuitant can, in the private sector, make up to 80% of what one’s former Federal position currently pays (on top of the annuity itself), the severe cut in pay is rarely a feasible option considered by Federal professional employees.
To begin with, the option itself is little known and inaudibly announced. Whether because such benefits, as part of the totality of one’s Federal employment compensation package, is regarded with little significance for the younger generation entering the Federal sector employment force (i.e., who at age 25 thinks about life insurance, health insurance, or disability retirement?); or because there is a reluctance on the part of the Federal Government to announce it via megaphones for fear that it will unleash a floodgate of applicants; the fact is that many Federal and Postal Workers who first consider applying for the benefit, will often admit that they were unaware of the benefit until they accidentally learned about it through third-hand accounts. While Federal Worker’s Compensation benefits are widely known because of the prominence of injuries incurred while on the job, Federal Disability Retirement benefits are either unknown or confused with OWCP benefits. As a result, the first and greatest obstacle in filing for Federal Disability Retirement benefits turns out to be the tool and clarion call of the elite to keep the masses subservient: Ignorance.
Moreover, the second obstacle constitutes the psychological concave of the first: a reluctance on the part of the Federal or Postal Worker to acknowledge the need to access the benefit itself. For, again, it is rarely the medical condition itself which prevents one from preparing a Federal Disability Retirement application (it may well prevent one from performing one or more of the essential elements of one’s job, which is a criteria which must be proven in a Federal Disability Retirement application; but rarely does it prevent one from preparing the application itself); rather, it is the psychological obstacle of admitting to one’s self that the medical condition has resulted in a station in life where one is no longer able to continue in the directional compass of a particularly intended vocational career. Indeed, that crucial step – of the self-admission of being unable to fulfill one’s career goals and dreams of completing the paradigm of vocational satisfaction – is the greatest obstacle of all. It harkens back to what may have been the deciding factor in Game 7 of the 1990 NBA Finals -– had Pippen suffered from a debilitating migraine as the primary medical condition, or was the onset a result of a deeper psychological obstacle?
Beyond the psychological obstacles, of course, are the legal ones: One often gets mired in peripheral issues, and battles which only prolong the inevitable. Often, the life of turmoil and constancy of battle becomes a way of life – one which almost becomes a comfort zone of adversarial states of being. The classic example is of the never-ending custody battle in domestic relations cases, where the repetition of legal turmoil seems to have an invisible and unbreakable pull between spouses, and where the psychological ties, even in an arena of acrimony, seems to forever bound a family in perennial strife. Thus, for Federal and Postal Workers who file EEO actions, discrimination lawsuits, formal and informal grievances at all stages of the process, and protracted Federal lawsuits – even when the deterioration to one’s health becomes readily apparent, it is often difficult to just “let go” and move on. The known familiarity of strife and turmoil is often preferable to the future of the unknown. Sometimes, it is best to cut the ties that bind and destroy, and move on.
Further, the legal hurdles which the U.S. Office of Personnel Management puts forth are varied, great and seemingly insurmountable. First, there is the question of sheer power: OPM has the power to deny. Such bald and boundless power is something to be feared, indeed; for, while there are supposed to be legal criteria to be followed, the rational basis given in an OPM Disability denial rarely gives credence to the view that legal principles are constraining, leaving aside the question of serious application of such legal principles. Moreover, beyond the question of sheer governmental power to deny, there is the further issue of selective review of medical documentation and careful analysis of the reports and records submitted. Yes, human fallibility can account for some of it, but consistent lack of rationally-based decisions lead to puzzlement, dismay, and pondering of underlying motives. The classic example often cited by the author of these words is where OPM denies a case based upon the issue of not having shown that a medical condition will last a minimum of 12 months – despite all of the doctor’s reports and notes stating that the condition will be a permanent one, and will last the patient’s lifetime. Or, perhaps there is a reasonable assumption that the span of one’s lifetime may not endure a matter of 12 months?
Then, of course, there is the potential catch-all rationale – of “insufficiency of medical documentation” – and whether this refers to the qualitative insufficiency or that enough of a quantitative volume of records were not included. Such generic reasons for denying a Federal Disability Retirement application should be unacceptable – if only for the reason that it ultimately is meaningless. And if a denial cannot be understood, how can one counter it?
Fortunately, the Courts and Merits Systems Protection Board have provided a foundation for counterbalancing the advantages accorded to the U.S. Office of Personnel Management. Whether it is the application of the “Bruner Presumption” (Bruner v. Office of Personnel Management, 996 F.2d 290 (Fed. Cir. 1993), an SSDI approval utilizing Trevan v. Office of Personnel Management, 69 F.3d 520 (Fed. Cir. 1995); or the powerful tools in Vanieken-Ryals v. OPM, U.S. Court of Appeals for the Federal Circuit, decided on November 26, 2007, and more recently of Henderson v. OPM, decided on January 31, 2012 (by the full Board) – the counter to OPM’s considerable advantages can be neutralized through adversarial legal tools which can somewhat equalize the clear imbalance of power.
In the end, the factors which present challenges to a Federal Disability Retirement application are varied and complex. And so it is with all sectors of human activity. Remember the 1990 NBA playoffs? If life froze in a cinematographic pause, only remembrances of failure would be replayed in one’s mind. But redemption is possible, and this was proven in the following year, when Pippen became the dominating player he was physically blessed with, and the Bulls swept the Pistons. Similarly, a singular denial in a Federal Disability Retirement case is not the end of a process, but merely the beginning, and the systemic checks and balances — of two stages at the agency level; the potential for a Hearing before an Administrative Judge; further review by a 3-Judge panel of the MSPB; and, finally, an appeal to the Court of Appeals for the Federal Circuit – provide a foundation for safeguards; and, along the way, the legal tools available constitute enough of a counterbalancing force to be reckoned with, if used properly and effectively. In the end, one must view the entirety of the process, and not become myopically delimited within any single stage of a process. Federal Disability Retirement is a benefit which, in the end, can only be accessed with the most effective tool of all: a medical condition which prevents one from performing one or more of the essential elements of one’s job. But even with that, there is a wide chasm and distinction between having the facts on one side, and on the other, proving the facts. That is where the greatest obstacle lies.