Federal & Postal Service Disability Retirement: How Many Should Be Listed (Part 2)?

The listing of the medical conditions in a Federal Disability Retirement application, as it is descriptively written on the Applicant’s Statement of Disability (SF 3112A) for FERS & CSRS disability retirement, to be submitted to the Office of Personnel Management, is a separate issue from the creative description of the symptoms which the applicant experiences as a result of the identified listing of the medical conditions.  Thus, a distinction should be made between the “official” diagnosed medical conditions (which should be limited in number, for reasons previously delineated) and the multiple and varied “symptoms” which result from the listed medical conditions.  Thus, while one may suffer from the medical condition termed as “Fibromyalgia”, the symptoms can be multiple:  chronic and diffuse pain; impact upon cognitive abilities, inability to focus and concentrate, symptoms which are often termed as “fibro-fog”, etc. 

When the Office of Personnel Management approves a Federal Disability Retirement application under FERS & CSRS and identifies the specific medical condition by which it is approved, it will identify the medical condition, and not the symptoms.  This distinction is important because, when an applicant prepares the narrative to show the Office of Personnel Management what he or she suffers from, the differentiation between conditions and symptoms is important to recognize when creatively and descriptively writing the narrative of one’s medical conditions.

Sincerely,

Robert R. McGill, Esquire

Federal Disability Retirement: Symptoms versus Diagnosis

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

OPM decisions of denial in FERS & CSRS disability retirement case

There are two elements: competency/knowledge, on the one hand, and authority/power on the other. When the two come together, we then have the combination resulting in a reasoned decision. It is indisputable that an Agency has the authority and power to make administrative decisions. On the other hand, if the Agency makes a decision without the proper competency or knowledge, then it can become a problem.

In reviewing a denial letter from the Office of Personnel Management in disability retirement cases, what is most disturbing are the following: First, 90% of the denial letter is based upon a computer template. The references to dates, medical reports & records reviewed, etc., comprise the remainder of the 10%.

Now, that is not to complain that OPM should or must “reinvent the wheel” each time it makes a decision — indeed, the fact that much of the decision is boilerplate, template language is not that disturbing. What is, disturbing, however, is when — under the pretense of competency and knowledge, it makes blatant mis-statements of the law.

Some of the mis-statements are: “The medical documentation does not show that you are totally disabled from performing your job.” There is no requirement under the law that a person needs to be “totally disabled”. Or: “We are unable to make a determination because of the lack of objective medical evidence.” Medical evidence does not need to be “objective” as opposed to a doctor’s reasoned medical opinions. Or: “Fibromyalgia is a condition which waxes and wanes.” OPM is not a medical facility and has no business making medical determinations or declarations.

The authority and power of an Agency must always be used in the context of competency and knowledge, and the Office of Personnel Management must make its decisions based upon the prevailing case laws, statutes and regulations which govern it. It is the job of a disability retirement attorney to point out such misstatements of law.

Sincerely,

Robert R. McGill, Esquire