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CSRS & FERS Disability: The Decision

June 19, 2009

It is always a hard decision to file for disability retirement benefits. Aside from the psychological anguish which must be confronted (feelings of worthlessness or devaluation of one’s worth because we live in a society which places a high value upon productivity, work, and output & competence in our jobs, despite our giving lip-service to “family”, “relationships” and “community”), the potential disability retirement applicant must also make pragmatic decisions based upon a variegated spectrum of financial, professional, family & economic circumstances. Such foundational, decision-making factors could include: one’s medical conditions (obviously); the type of job one is in; whether a disability retirement annuity is sufficient or even realistic; whether the job market outside of the federal sector is promising enough to allow for making up to 80% of what one’s job currently pays, in addition to the disability annuity; whether a parti-time position or partial income added to the disability annuity will be enough; whether one’s supervisor & agency will be “going after” you for performance, conduct, or excessive absences, and if so, how soon; and many other factors.

It is always a trying time. Consideration in filing for disability retirement benefits must be based upon a deliberative methodology, based upon serious consideration of multiple factors. In basing a decision to file for disability retirement, it is best to do it right before considering doing it at all. As such, consultation with an attorney who is an expert in the area of Federal Disability Retirement laws can be an invaluable source of information in making the “right” decision.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: The Proper Approach

June 18, 2009

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Some believe that, when formulating and compiling a disability retirement application, that quantity of supporting documentation will win the day — all medical reports, records, statements from friends, family, co-workers, etc. Sometimes, however, it is better to refrain from providing everything all at once; for, if a determination is made that there is sufficient documentation to prevail in a disability retirement application, it is sometimes the wiser course to restrain the natural inclination to bombard the Office of Personnel Management with all of the available documentation. This is merely a strategic bit of advice; yet, in practical terms, inasmuch as every disability retirement case has the potential to be denied at the First Stage, and OPM would in that event be requesting additional supporting documentation, it is often a good idea to “withhold” and “keep back” a secondary source of supporting documentation — but only if the primary source of supporting documentation is confidently adequate to win at the first stage. It is a discretionary method of approaching the compiling of data and documentation at the first stage — a decision which should be made with wise counsel.

Sincerely,

Robert R. McGill, Esquire

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CSRS & FERS Disability: Standard Forms

June 17, 2009

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Remember that Standard Forms are produced with the intent of having you believe that you are constrained by the questions as posed, by the space as constrained, and by the language as restricted. Nothing could be further from the truth. All forms, including governmental standardized forms, are merely inquisitive templates requesting information. If the form fails to ask the proper question, or does not pose a question such that it does justice to your particular situation or problem, then you should freely ask the question you believe should be asked, on a “continuation page”, or in an addendum created by you or your attorney. In disability retirement applications, this is especially true of Standard Form 3112A (Applicant’s Statement of Disability). Instead of answering only the constraining questions as posed within the framework of the form, it is often appropriate to add another page and create, and subsequently answer, relevant questions which are neither posed nor implied by the Standard Form. This is not to say that the applicant should abuse the process by adding irrelevant questions; rather, it is to allow for the “full story” of a disability retirement application.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: an Art Form II

June 16, 2009

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In constructing the narrative of one’s story of the human condition and how it impacts the essential elements of one’s Federal or Postal job, it is important to weave the story such that it relates as a story. Every story has a beginning and an end; every story must contain the elements of an effective narrative: What has occurred; the symptoms; the diagnosis; how the symptoms impact upon one’s ability to perform one’s job; what are some of the essential elements of one’s job; as well as some impact upon one’s personal life. Now, the Applicant’s Statement of Disability has appropriate sections to “fill in the blank”; but one’s story should not be merely a matter of filling in the blank; instead, it should be a narrative — a coordination of the story, consistent with the medical narrative report obtained from the doctor; and finally, a legal memorandum arguing the law. The weaving of these elements, in my experience, constitutes what I consider to be a successful disability retirement application.

Sincerely,

Robert R. McGill, Esquire

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CSRS & FERS Disability: an Art Form

June 13, 2009

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As with all effective submissions — pleadings, motions, legal memorandums and, alas, Federal Disability Retirement applications — it should never be approached in a mechanical, one-to-one ratio-like, mathematical manner. Of course it should contain the technical terms, the medical terms, and the legal arguments. However, disability retirement under FERS & CSRS — especially the Applicant’s Statement of disability and any legal arguments — should not be matter of matching up a one-to-one correspondence between the medical condition and the particular essential elements which it prevents or impacts. Certainly, the effect and the conclusion should contain that conceptual correspondence; however, as all good writing contains a technical side, it is also important to weave the story of the human condition and see the writing as an “art” form.

The impact of the human story is important in convincing and persuading the OPM representative to not only understand the medical condition, but to get a sense of empathy for what the applicant is going through. It is a delicate balance to achieve; yes, the hard legal arguments should be made in order to “force” OPM to see that, legally, they are obligated to approve a disability retirement application; at the same time, if you can touch the empathetic nature of the OPM representative, so much the better.

Sincerely,

Robert R. McGill, Esquire

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OPM Disability Retirement: Accommodations

June 8, 2009

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While I am often asked about the intersecting connection between the ADA (Americans with Disabilities Act) and Disability Retirement laws under FERS & CSRS, and the issue of accommodations, my short answer is that the two areas of law rarely directly intersect. “Accommodation issues” under disability retirement law rarely present a problem in a practical sense.

The term itself is rarely applied properly; the best way that I can describe what the term “accommodation” means, in its technical application, is by giving the classic example: A secretary who suffers from a chronic back condition is unable to perform her secretarial duties because of the high level of distractability from her chronic pain. The agency purchases an expensive, ergonomic chair, which relieves the chronic pain; she is able to perform the essential elements of her job. She has thus been “accommodated”. Thus, the definition of “accommodation” is essentially where the Agency does X such that X allows for employee Y to continue to perform the essential elements of Y’s job. Further, an accommodation cannot be a temporary or modified assignment; in fact, it is not an “assignment” at all — it is something which the Agency does for you such that you can continue to perform your job.

Thus, as a practical matter, it is rare that an Agency will be able to accommodate an individual. Further, when it comes to psychiatric disabilities, it will be rarer still -especially when the essential elements of one’s job requires the cognitive capabilities which are precisely that which is impacted by the psychiatric medical conditions. As such, the issue of accommodations is rarely a real issue, and further, people who are attempting to enforce the provisions of the ADA are not those who are truly seeking disability retirement, anyway. It is the very opposite — they are trying to preserve their jobs, and to force the Agency to provide an “accommodation” under the law.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: OPM’s Specific Denial II

June 7, 2009

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It is important to always “define”, “corner”, and “circumscribe” any denial from the Office of Personnel Management. If you do not, then what happens at the next level is that it becomes a “de novo” process. Now, one might argue that all disability retirement appeals to the Merit Systems Protection Board are de novo, anyway. That is true enough — meaning, that all of the evidence is looked at “anew” and without prejudice from any previous finding by the Office of Personnel Management.

Yet, there is the “legal” definition of de novo, and the practical effect of de novo; often, the Administrative Judge at the MSPB will, at a PreHearing Conference, turn to OPM and say, Listen, OPM, it seems that the only reason why it was initially denied was because of X, Y & Z; the applicant certainly answered X & Y in his/her reconsideration answer; is the only thing you are looking for is Z? What this does is to narrow the issue. Often, to save time, face, aggravation and other things, OPM will concede the narrowing of such issues, and this is true if you respond to their administrative queries by defining what they are asking for, then providing it to them, then showing how it has been provided to them, so that they are “cornered”. Thereafter, if it gets denied and it needs to go to the MSPB, the Hearing can then proceed with a narrower, streamlined and limited number of issues to prove. Again, the reason why it is important to define what it is that OPM is asking for, is not only for the “present” case, but in preparation for the potential “future” case.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: OPM’s Specific Denial I

June 5, 2009

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On those occasions when an OPM denial specifically (and correctly) identifies and asserts deficiencies in a disability retirement application, it is important to have a targeted response in addressing the denial. The reason for such a targeted approach is for two primary reasons: (1) One should always address the alleged specific basis of OPM’s denial of a Federal disability retirement application, and (2) By specifically addressing and answering OPM’s specific basis for the denial, if the Office of Personnel Management denies the application a second time, and it is therefore appealed to the Merit Systems Protection Board, it is important to view the entire case of OPM as “unreasonable”. In other words, it is important at the outset to “prejudice” the Administrative Judge as to the unreasonableness of the Office of Personnel Management. And there is absolutely nothing wrong with this — because the “prejudice” which the Judge may perceive is in fact based upon the truth of the matter: OPM is indeed being unreasonable, and it is important for the Administrative Judge to see such unreasonableness. It is important to be able to say to the Judge, Your Honor, do you see how we answered the basis of the denial — and yet, even after specifically addressing the basis of the denial, OPM still denied it? What else can we do? It is always important to prepare each step of the case not only for the “present” case, but also for the potential “next” case.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: OPM’s Generic Denial

June 4, 2009

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Often, cases are mishandled not because of the “present” mistake, but because the case was never prepared for the “long-term” event. Let me elaborate and explain. Obviously, an applicant for disability retirement benefits under FERS & CSRS wants to win the case at the earliest stage of the process. The attorney who is handling any such disability retirement case, similarly, would like to “win” the case at the earliest stage possible. However, sometimes that is simply not going to be the case.

In an initial denial, it is often important to not only address the case for the Reconsideration Stage, but also to prepare the case for the next stage — the Merit Systems Protection Board (and, similarly, in preparing an application for Disability Retirement, it is important to prepare such an application not only for the initial review at OPM, but also for the Reconsideration Stage). By this, I mean that, because there is at least a “possibility” that the disability retirement application will be denied again at the Reconsideration Stage, it is important to point out the deficiencies, the lack of clarity, the inadequate reasoning, the outright lies and mis-statements which the Office of Personnel Management may have engaged in as part of the “Discussion” Section of the denial letter. Often, while OPM may give some “lip-service” to make it appear as if your case was thoroughly reviewed, a closer reading (on second thought, it need not even be a closer reading) clearly shows that OPM did a shabby job in denying a case. It is what I ascribe as OPM’s “generic denial” — a denial so devoid of any particularity or care as to reveal a complete lack of proper administrative review of the case. Such lack of proper administrative review is what needs to be shown; it needs to be shown because, if OPM denies the case again, then it is advantageous to the applicant to have the Administrative Law Judge at the Merit Systems Protection Board see that he will be hearing a case which may not have been necessary — but for the lack of diligence on the part of OPM.

Sincerely,

Robert R. McGill, Esquire

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OPM Disability Retirement: The Case of Fibromyalgia

June 3, 2009

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Fibromyalgia is one of those medical conditions that the Office of Personnel Management systematically “targets” as a condition which is prima facie “suspect”. This is despite the fact that there are cases which implicitly “admonish” OPM from engaging in the type of arbitrary reasoning of denying a disability retirement application because they “believe” that “no objective medical evidence” has been submitted, or that the “pain” experienced (diffuse as it might be) is merely “subjective”, or that the chronicity of the pain merely “waxes and wanes”, and a host of multiple other unfounded reasonings. Yet, cases have already placed a clear boundary around such arbitrary and capricious reasonings.

A case in point, of course, is Vanieken-Ryals v. OPM, a U.S. Court of Appeals for the Federal Circuit case, decided on November 26, 2007. In that case, it clearly circumscribes the fact that OPM can no longer make the argument that an Applicant’s disability retirement application contains “insufficient medical evidence” because of its lack of “objective medical evidence”. This is because there is no statute or regulation which “imposes such a requirement” that “objective” medical evidence is required to prove disability. As long as the treating doctor of the disability retirement applicant utilizes “established diagnostic criteria” and applies modalities of treatment which are “consistent with ‘generally accepted professional standards'”, then the application is eligible for consideration. Further, the Court went on to state that it is “legal error for either agency (OPM or the MSPB) to reject submitted medical evidence as entitled to no probative weight at all solely because it lacks so-called ‘objective’ measures such as laboratory tests.” Statues are passed for a reason: to be followed by agencies. Judges render decisions for a reason: for agencies to follow. Often, however, agencies lag behind statutes and judicial decisions. It is up the an applicant — and his or her attorney — to make sure that OPM follows the law.

Sincerely,

Robert R. McGill, Esquire