CSRS & FERS Disability Retirement: Viewing the Office of Personnel Management

Agencies are “like” people; they are “organic” organizations (a redundancy?), and as a corporate-like entity, they respond and react as people do:  cerebrally, emotionally, reactively, angrily, etc.  If one views an agency in this way — treating the entity as one would a person — then you will often get the same or similar results as when dealing with your brother, a spouse, or a neighbor.  And, indeed, as a logical approach, this only makes sense, because agencies and organizations are made up of people.

Thus, when filing an application for Federal Disability Retirement benefits, it is often important to think of “incentives” in approaching the Office of Personnel Management, to make every effort to have a carrot/stick approach in filing a disability retirement application.  The “stick” part of it, of course, is the law — the threat of making sure that OPM knows that you will be willing to go the full course — to the Merit Systems Protection Board, to the Full Board Appeal, to the Federal Circuit Court of Appeals.  If OPM denies your case and they get it reversed at the appellate level, it makes them “look bad”.

That is the stick to hold over them — the force of the law.  The carrot part of it is to streamline it and make it as easy as possible by obtaining a clear and concise medical report.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: The Filing II

People often come to me at the 2nd (Reconsideration) Stage, or the 3rd (Merit Systems Protection Board) Stage, and ask that I correct the mistakes made in the initial filing. Most mistakes can be corrected. Of course, it would have been better if the Applicant had done it properly the first time, for once the Office of Personnel Management views something which should not have been submitted, it cannot be easily retracted — only further explained.

There are, moreover, certain mistakes which cannot be “explained away” — such as deliberate omissions or deceptions. Thus, if the Office of Personnel Management gets the idea that there is an element of deceptiveness in a disability retirement application — either through omission or deliberate avoidance of an issue — then it becomes a difficult case to win. Honesty is always the best policy, and no Disability Retirement applicant should ever engage in any act of covering up any information. This is conceptually different from emphasizing the elements in a disability retirement application which favor an approval, as opposed to de-emphasizing those elements which tend to obscure the primary elements of an application. Such artful emphasis/de-emphasis should always be a part of every disability retirement application, coordinating the Applicant’s Statement of Disability with supporting medical documentation, to convey a consistent “whole” to the Office of Personnel Management.

Sincerely,

Robert R. McGill, Esquire

Additional Guidance on Disability Retirement Supervisor’s Statement

Some have asked me whether acceptance of a temporary light duty assignment is of concern in a disability retirement application. If you look at SF 3112B (Supervisor’s Statement), Section E(3), the question is whether the employee has “been reassigned to ‘light duty’ or a temporary position?

If the Supervisor answers “No”, then of course there is no issue which would arise which would impact a disability retirement application; if the Supervisor answers “yes”, then it can actually be used as an argument for a disability retirement application, because it can be argued that the fact that the Agency has reassigned the applicant to a temporary “light duty” position is additional evidence of the acknowledgment by the Agency that the applicant could not perform one or more of the essential elements of one’s job, and therefore in such recognition, the Agency provided for a temporary light duty assignment. Acceptance of such an assignment is not a bar to disability retirement, precisely because it is not a “reassignment” to a “vacant” position, as required in the case of Bracey v. OPM.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: The Case of Fibromyalgia

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

CSRS & FERS Disability Retirement: VER, the Economy, & Decisions to Make

The news coming out on the Voluntary Early Retirement offer for Postal employees has not been very positive.  My information has been gathered from multiple sources:  Official Statements from the U.S. Postal Service; “insider information” from Postal employees; various newspaper accounts and website information.  Recent statements from the APWU President, of course, sheds further light on the matter.  Mr. Burrus warns (wisely, in my opinion) that, in this “uncertain economy, there is no reason to make a hasty decision.”  That is certainly true.  The loss of potential future income over a period of years or decades should be considered; the one sector of the economy which seems to be expanding at an alarming pace is the Federal government, and if the Federal government is unwilling to let AIG and banks fail, then surely it will not allow the Postal Service to self-destruct.  Now, with respect to Federal and Postal employees who must, because of medical conditions which impact his or her ability to perform the essential elements of one’s job, a decision to file for disability retirement benefits is a pragmatic one:  either disability retirement, or risk being terminated because of the continuing decline in performance and ability to complete the essential elements of the position.  An offer of a VER without financial incentives — taking into account what an individual will lose in benefits, pay increases, etc. over the next decade or two — is not a very attractive offer.  Any such VER should be considered carefully.  On the other hand, disability retirement is a different matter:  It is a pragmatic decision to accept the fact that one has a medical condition such that you cannot perform the particular kind of job you hold, anymore.  It is a decision that it may be the right time to “move on” — bad economy or not.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Disability Retirement: Interaction with VER, A Continuing Dialogue

I sincerely hope that the proposed VERs which will be issued in the next couple of weeks will be economically viable and rewarding for those who qualify.  I say this because the primary criteria proposed for qualification involves those who are at least 50 years of age with at least 20 years of service, or any age with at least 25 years of service.  Anyone who has dedicated his or her life for a minimum of 20 years deserves something comparable to “full retirement” benefits.  My suspicions are raised, however, only because the motivating factor behind the offer is to target employees in specific locations where reductions in force or restructuring will be taking place — i.e., from the Post Office’s perspective, those places where greater “efficiency” can be obtained, at the cost of a person’s lifetime dedication and service to the Federal Government.  I realize that Adam Smith’s economic truth will always be at play — that self-interest leads to unintended consequences which, in a capitalist system, results in collateral benefits of employment, wide economic impact, etc.  But just make sure that, just as the Post Office is looking after its own interest first, that each Postal employee looks after his or her own interest, similarly — first.  Look at the VER carefully.  Compare it to disability retirement benefits carefully — not only in terms of “today’s” dollar value, but also into the future.

Sincerely,

Robert R. McGill, Esquire