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OPM Disability Retirement: When it Gets to the Merit Systems Protection Board (MSPB)

August 5, 2008

For whatever reason, a certain percentage of cases reach the third level in the process of applying for Federal Disability Retirement benefits: The Merit Systems Protection Board. If an individual is unrepresented at this level, the identical problem as that which occurs in any courtroom presents itself: an attorney representing an individual provides an appearance of “objectivity” to the administrative judge; the advocacy on behalf of a disability retirement applicant has greater credibility, the arguments made on his/her behalf are now greater efficacy and weight, merely because the person arguing (the attorney) and the person for whom the arguments are made (the disability applicant), are not one and the same.

Whether fair or not, it is important that a disability retirement applicant obtain representation at this level, because Administrative Judges are more likely to listen to the arguments made by an attorney, precisely because the Attorney does not — other than the professional reputation of winning or losing the case — have a “personal” vested interest in the case itself. As such, the arguments of an attorney have an appearance of objectivity, and it is that weight of objectivity which may be the deciding factor as to whether the applicant will get the disability retirement annuity, or not.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement: Reconsideration Stage

July 31, 2008

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Alas, a batch of decisions has obviously been sent out to many disability retirement applicants in the last couple of weeks, because I have gotten many calls from those who attempted to try and obtain disability retirement benefits without legal representation. In reviewing the denial decision from the Office of Personnel Management, many who have called have observed some rather amusing things, such as: “It seems like most of the decision is just boilerplate language”; “There were so many typos and grammatical errors in the decision”; “The OPM specialist referred to a doctor whom I never treated with”; “The decision said that I suffered from medical condition X, which I never claimed!” “To err is human…” is a true enough adage; but to point out the mistakes of an OPM decision for the sake of pointing out the mistakes, is a pointless exercise.

Do not fret; yes, much of the language of a decision is indeed boilerplate; OPM representatives are human, and do indeed make mistakes, and insert names of doctors and medical conditions which are not part of an applicant’s narrative; and other mistakes as well. But don’t overlook the obvious by fuming about such mistakes: if your disability application was denied, you need to take the decision seriously, identify the substantive issues which were the primary basis for the denial; ignore the tangential errors made; then proceed to address the concerns brought to light by the Office of Personnel Management. Time is of the essence, and those 30 days to file for reconsideration, and the additional 30 days given to obtain further medical documentation, come and go quickly. Don’t fume about irrelevant details; focus upon strategizing a substantive approach to getting your disability retirement application reconsidered, and approved.

Sincerely,

Robert R. McGill, Esquire

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First Parable: The Lady, the Girl and the Stranger

July 30, 2008

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Once upon a time, there was a child with her mother, walking along a dirt road. It had just rained, and the mist in the air brushed delicately upon the mother and daughter as they trekked through the countryside. Their journey passed by some mud puddles freshly created by the rain. As they walked, they came upon a stranger standing by the side of the road, on the adjacent grassy knoll. The mother and daughter cast their eyes downward; the stranger smiled, revealing a cavernous vacuity for his front teeth. He stared intently at the mother and daughter, both of whom could feel the piercing look upon them from the uninvited stranger.

Suddenly, without warning, the stranger rushed to the young girl, scooped her up into his arms, and carried her off of the dirt road onto the grassy area, where he just as swiftly, but gently, placed her upon the wet grass. Too startled to cry, the little girl was lying prone, staring straight up at the bright blue sky. She remained quiet, too frightened to move, too paralyzed to scream. The mother, too, had been overtaken with such surprise at the suddenness of the short-distance kidnapping, that it was not until her daughter had been gently placed upon the grass that she let out a shriek of fear, anger, and tremulous indignation with such force of relief, that it caused the stranger to stumble backward, almost tripping over the little girl. In the course of profane invectives spewing ferociously from the mother’s mouth, the stranger declared, “But madam, I saved your child’s life! She could have tripped and fallen face flat into one of the muddle puddles, and drowned! You should thank me for saving her life!”

Tags: Reflections of an OPM Disability Retirement Lawyer

Federal Disability Retirement: SSA Approval, Part III

July 29, 2008

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What if an SSA decision letter is not immediately forthcoming, or does not address the same medical conditions as that applied for in one’s disability retirement application? In such a circumstance, the best argument that can be put forth is to show the Office of Personnel Management that the application submitted to the Social Security Administration is essentially identical with the application for Federal Disability Retirement benefits submitted with OPM; then, to make the argument by analogy that where two applications are essentially identical, and where the higher standard of eligibility required (“total disability” — per SSA) has resulted in an approval, then the law must mandate that a lower standard of eligibility required (disability from being able to perform one or more of the essential elements of one’s particular job — FERS & CSRS) be by analogy and by logical consistency, result in an approval.

In submitting this argument, it is often helpful to submit a copy of the application/questionnaire filled out for SSA, and point out the identical nature of the medical conditions claimed, along with proof of approval by SSA. Finally, it is important to refer to particular case-law citations to reinforce such arguments — but, alas, as to this latter point, it is best to obtain the services of an attorney who is experienced in Federal Disability Retirement law.

Sincerely,

Robert R. McGill, Esquire

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Federal Disability Retirement: SSA Approval, Part I

July 21, 2008

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Of interest is what to do when a Social Security filing for disability benefits has been approved prior to the FERS/CSRS disability retirement application being approved. This is a rarity, and indeed, it should logically be that way: for Social Security disability requires a higher standard of (essentially) “total disability”; while the criteria for approval under FERS/CSRS is that of an “inability to perform the essential elements” of a particular job — meaning, in essence, that an individual is no longer a good fit for a particular type of job, but could certainly be productive in some other capacity of employment.

The cases at the Merit System Protection Board which have addressed this issue have been fairly consistent. An approval in and of itself will not necessarily help a FERS/CSRS application; as with the application process itself, the applicant has the preponderance of the evidence of proving the relevance of the approved Social Security filing. I am often asked whether, in a denial of an SSA disability application, where the decision by the Social Security Administration states that, while SSA acknowledges that the applicant is unable to perform his or her current employment because of the medical condition, yet the applicant for SSA disability benefits is denied because he or she may engage in other productive employment — whether such a statement in the denial (that SSA acknowledges the applicant’s inability to perform his or her current job) should be forwarded to OPM. My answer is that it should not be, because it is not relevant to OPM’s criteria for making a determination.

As to the two most important questions: 1. If a Social Security Disability application is approved, what needs to be sent to OPM, and 2. If Social Security’s determination doesn’t provide the necessary language to be relevant for forwarding to OPM, what can take its place? As to these two questions, I will be addressing each in a blog to be written in the very near future.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement: When to Get an Attorney

July 14, 2008

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As I explain to all potential clients, whether an individual should attempt to obtain Federal Disability Retirement benefits with or without an attorney, is an individual and personal decision, based upon a number of factors.

I place everyone on a spectrum: on the far left side of the spectrum is a Letter Carrier who becomes paralyzed. That person does not need me as an attorney. He/she needs to gather the medical records, fill out the forms, and submit the application. On the far right side of the spectrum is a Supervisor who goes out on “stress leave”. That person should almost definitely hire an attorney, because disability retirement based upon the medical condition of stress alone, is difficult to obtain. Most Federal and Postal employees fall somewhere in-between those two extremes. Further, and obviously, I believe that I am of assistance to my clients, and (hopefully), based upon the years of feedback I have received, my clients firmly believe that my legal methodology and approach were instrumental in obtaining disability retirement benefits for them.

Two further things to consider: First, I rarely accept cases where an individual has filed the application, gotten it rejected, filed for reconsideration, gotten it rejected, and then went to the Merit Systems Protection Board where the Judge upheld OPM’s decision to deny the application: when an individual has gone through all three Stages, and asks me to file a Petition for Review, I will normally not take on such a case. I will, of course, consider being hired to re-file the case (assuming that the person has not been separated from service for over a year); but I cannot take on a case for a Petition for Review and further appeal when I have not been the one instrumental throughout the first three stages of the process. Second, many individuals come to me with barely 30 days left to file. I take on such “emergency cases” on a case-by-case basis, depending upon my time-allowance, my schedule, etc.

The Lesson: Each individual must make the decision as to whether or not to hire an attorney, which attorney to hire, when to hire. From my perspective: Federal Disability Retirement is, when all is said and done, a process to secure the financial future and stability of one’s life. As such, hire an attorney who specializes in Federal and Postal disability retirement, and hire one early on in the process.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement: Failing to Follow “Reasonable Treatment”

July 11, 2008

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In fighting to prove one’s eligibility for Federal Disability Retirement benefits, a recurring argument which the Office of Personnel Management often alleges is that an applicant failed to follow the treatment recommendations of the treating doctor.

Such an argument can prove to be fatal to an applicant’s case, but it is good to know the parameters of what it means to “fail to follow” reasonable medical treatment. For instance, non-compliance with a medication regimen can be fatal to a case. Thus, OPM will successfully argue that an individual who has failed to follow the medication regimen of the treating doctor has thus failed to show that the individual could have returned to work precisely because non-compliance with a medication regimen would logically undermine the potential efficacy of the medical treatment.

On the other hand, invasive surgery is normally not required, and the Merit Systems Protection Board has stated that an “estimated probability of success of future surgery is speculative, just as a prediction as to the worsening of a condition may be, and will not necessarily provide a basis for denial of a disability annuity.”

These are two light-posts on the spectrum of what is deemed “reasonable treatment”. Most issues concerning reasonable medical treatment fall somewhere between these two extremes, and the best course of action (obviously) is never to self-treat, or make medical decisions without the input of your treating doctor. Indeed, to not follow the medication regimen of your doctor is a manner of self-treatment; on the other hand, to elect not to have surgery because of the speculative success/failure rate is a reasonable decision which the Merit Systems Protection Board will not second-guess. What falls in-between these two extremes should always be with the guidance of “reasonableness”, in close consultation with your treating doctor.

Sincerely,

Robert R. McGill, Esquire

Tags: avoid giving the opm an excuse or "basis" for denial, civil service disability, disability retirement opm, federal employee disability doctor, importance of following up medical disability treatment, invasive surgery, medical and surgical treatments in opm disability decisions, medical condition(s), medication treatment on federal disability retirement cases, Merit Systems Protection Board and OPM disability, minimally invasive spine surgery, misinterpretation or misapplication of OPM disability law, mistakes that can cost you an opm disability denial, OPM disability appeal to the MSPB, OPM disability application tips and strategies, OPM medical retirement, OWCP medical treatment, physician's statements in an OPM disability case, Postal disability retirement, pragmatic methodology, prescribed medication regimen and opm disability, statutory requirements in OPM disability law, your treating doctors

Federal Disability Retirement: Symptoms Versus Diagnosis

July 3, 2008

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If disability retirement were merely a matter of determining the proper diagnosis of a medical condition, and having a doctor ascribe a percentage rating of disability, then the process of disability retirement would substantively be altered, and perhaps there would be far fewer cases to adjudicate at the Merit Systems Protection Board level. For, if the criteria were that ‘cut and dry’, there would be little for OPM and the applicant & the applicant’s lawyer to argue over. However, it rarely is that ‘cut and dry’ — because the major battle is rarely over the diagnosis; it is rarely over an issue concerning a percentage ascription of disability; rather, it is over the symptoms manifested, the significance of such symptoms upon the type of work one does, and in the impact such symptoms have upon the essential elements of one’s job.

That is why descriptive terms are important in disability retirement law. It is not so important ‘what it is’, as opposed to ‘how it is characterized’. From this perspective, it is important for a disability retirement attorney to be more of a poet than to be cold and analytical — although, the best approach would be to have a little bit of both. Remember to always know the context — the applicant will not be standing in front of an OPM representative showing how terrible the applicant’s medical condition is; there will be no visual presentation; everything is based upon a narrative — the applicant’s statement, the medical documentation, the legal memorandum of the attorney, etc. Thus, it is all-important for the attorney who represents a disability retirement applicant to have a good command of the English language.

Sincerely,

Robert R. McGill, Esquire

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FERS & CSRS Disability Retirement: The Reasonableness of the Governing Law

June 24, 2008

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Without getting into too many comparisons, the laws governing disability retirement benefits are, upon reflection, actually quite reasonable. Think about it this way: yes, it doesn’t pay a great amount, but at the same time, you are encouraged to go out and be productive in some other employment capacity, and are able to make up to 80% of what your former job pays currently.

Unlike the stringent and onerous OWCP/DOL laws, you are not subjected to arbitrary, so-called “independent” medical examinations by doctors who make a substantial portion of their livelihood on rendering such “independent” second, third, and fourth opinions; your application is based upon what your own treating doctor says — not by some doctor who is a specialist in “disability ratings” or “disability determinations”.

This latter criteria is actually for the benefit of the applicant, when you stop and think about it. For, if the law allowed for disability retirement applications to be determined by doctor’s opinions who are “disability specialists”, and not by your own treating doctor, then what would happen is that the entire disability retirement process would become a war between doctors and so-called specialists, overshadowing the one who should count the most — the treating doctor.

Instead, as the reasonableness of the present law stands, the weight of the medical determination is based upon the applicant’s longstanding treating doctor — and that is the way it should be. For it is only a doctor who has enjoyed many years of an intimate doctor-patient relationship who should be granted the special weight and status that is accorded in disability retirement laws: the special status of one who can make a viable, respectable determination of one’s employment capabilities, based upon the medical conditions he or she suffers from. All in all, the disability retirement laws are governed by a criteria of reasonableness.

Sincerely,

Robert R. McGill, Esquire

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FERS & CSRS Disability Retirement: The Proper Paradigm

June 15, 2008

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Whether we like to admit it or not, we all operate, in all segments of our lives, from a certain “paradigm” (reference Thomas Kuhn, Structures of Scientific Revolutions) or “world-view”. When it comes to Federal Disability Retirements, the majority of Federal and Postal workers who comes to me have a pre-formed, generally negative attitude about the chances of getting it. This is because they have heard too many horror stories; or they have had horrendous experiences with OWCP filings, or EEOC complaints, or other experiences which they then relate to how the disability retirement process must be.

Yet, all Federal and Postal employees must understand that the process of Federal Disability Retirement has many, many inherent advantages which make it different from other processes. For instance, the Merit System Protection Board has often observed, with respect to disability retirement, that it is distinguishable from other processes, because it is not — strictly speaking — an adversarial process between an agency and an employee; rather, the MSPB sees it simply as a single issue — that of an employee’s entitlement to disability retirement.

Further, the role of the Office of Personnel Management, while seemingly one of making things overly difficult for the individual, in reality has a very difficult time in ultimately justifying a denial. Why? Because they do not have a right to have a doctor of their own to examine the applicant/patient (note the difference with OWCP, where you can be sent to second, third, and sometimes fourth medical opinions by doctors chosen by DOL and paid by DOL). Thus, it is almost as if OPM must disprove a case filed by an applicant. Finally, it is difficult to attack a treating doctor of an applicant, unless there is something seriously wrong with the credentials or competence of the treating doctor. All in all, disability retirement for Federal and Postal Workers is a fair process — one which is a valuable benefit for the Federal and Postal Employee.

Sincerely,

Robert R. McGill, Esquire

FERS Disability