OPM Disability Retirement: The Right Timing

Timing the preparation and submission, and ultimate separation/retirement from Federal Service in getting Federal Disability Retirement benefits under FERS or CSRS is rarely a method of precision; it is closer to art than it is to science.  That is because there is the “human” element involved — of when does the medical condition reach its critical point where one cannot withstand the daily and chronic pain; is the doctor ready to support the Federal Disability Retirement application; is the Agency sympathetic or suspicious; can the reduced finances be worked out for a livable standard of living; will the future allow for all of the elements to coalesce? 

There are many, many such human elements which must come into play.  All too often, however, the “right time” for contemplating filing for Federal Disability Retirement benefits is simply determined by external circumstances, such as reaching a critical point in one’s medical condition such that there is simply no other choice left, as opposed to being able to rationally and calmly make an affirmative decision for one’s future.  Whatever may be the particular and peculiar circumstances of a given Federal or Postal employee, the time to consider preparing a Federal disability retirement application must be a decision made by each individual, based upon that individual’s unique circumstances.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: The Time to Make the Decision (Part 2)

The medical condition known as “Fibromyalgia” is analogous to the manner in which Federal and Postal employees approach the decision-making process in filing for Federal Disability Retirement benefits under FERS & CSRS.  Let me explain:  Fibromyalgia, as the Office of Personnel Management often likes to characterize, often manifests itself with chronic and diffuse pain which “waxes and wanes” — meaning, in simple terms, that there are good days and bad days; days when the pain is unbearable, excruciating and debilitating; and days when one can “manage” the extent of the pain and mental dysfunction and confusion. With that context, the Office of Personnel Management often tries to argue that it is not “so bad” as to qualify for Federal Disability Retirement benefits under FERS & CSRS.

By analogy, people with all sorts of medical conditions — from physically debilitating neck and back pain; from Orthopaedic injuries, arthritis, chronic pain, visual impairment, etc.; to psychiatric disabilities of Major Depression, anxiety, panic attacks, PTSD — some days, one can seem to manage the disability; on other days, one cannot get through the day, let alone perform the essential elements of one’s job.  But deep down, one knows that one cannot continue forever on the same course.  To continue is to slowly wither away by a thousand cuts, one cut at a time, one cut per day.  And so, just as the Office of Personnel Management is plainly wrong (for Fibromyalgia is a chronic and debilitating medical condition which clearly qualifies for disability retirement), so the person who procrastinates in making the decision to file for Federal Disability Retirement benefits under FERS & CSRS is simply waiting for the inevitable.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS disability retirement & treatment compliance issues

While the issue of ‘causality’ is not one which often comes up in OPM disability retirement cases (by obvious contrast, of course, is the fact that causality, whether it was caused while working, on the way to work, outside of the parameters of work, etc, is often an issue in OWCP/DOL cases), there are certain cases where such an issue may be important to address. Baker v. OPM, 782 F.2d 993 (Fed. Cir. 1986) is actually a case which continues to remain of interest, in that, there, the Court noted that where obesity had a causal impact upon the appellant’s back pain, and since the appellant failed to follow medical instructions to lose weight, therefore the cause of the back pain was not as a primary and direct result of a medical condition, but rather because of non-compliance of reasonable available corrective or ameliorative action.

Thus, there are certain areas where you will be in danger of having your disability retirement application denied: one such area, where the Merit Systems Protection Board has been fairly consistent, is non-compliance of a prescribed medication regimen. In other areas, however, especially where surgery is recommended but where the percentage of success cannot be easily quantified, there is much more leeway. Disability Retirement is an area of law which encompasses a wide range of complex and potential “legal landmines”, and it is often a good idea to seek the counsel of an experienced attorney to help guide your way.

Sincerely,

Robert R. McGill, Esquire