CSRS & FERS Disability Retirement: Agency Supervisors

Federal Agencies, and the Postal Service, can act as little fiefdoms, with minimal oversight in the use of power. There is no school which teaches the proper use of power; power is something which is too often misused, misapplied, and abused. And, those who possess power, often exponentially apply it when the focus of such power has become vulnerable. Federal and Postal workers who suffer from a medical condition, who are in the vulnerable position of necessarily filing for disability retirement benefits under FERS & CSRS because of the imposition of an unwanted medical condition which impacts and impedes his or her ability to perform one or more of the essential elements of one’s job, are especially in a sensitive position, precisely because they are at the complete mercy of the Supervisor.

Supervisors need to understand and appreciate the great power which he or she possesses. The powerful need not misuse such power in order to show how powerful he or she is; indeed, it is in the very act of kindness, empathy, and the ability to show sensitivity and “human-ness” which is the true showing of the powerful. Supervisors should “bend over backwards” to show what it means to truly be a Supervisor — one who recognizes and appreciates the long years of loyal service the disabled employee has shown; empathy for the vulnerable situation the employee now finds him/herself in; kindness in the treatment of the employee. Such kind treatment will go a long way towards encouraging a sense of community and family within an agency, and will foster the other employees in the department, office, and greater agency to work that much harder, knowing that it is not “just a job” — but a career worthy of greater devotion.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Do Psychiatric Disabilities Still Carry a Stigma?

Do Psychiatric Conditions still carry a stigma?  Does the Office of Personnel Management, or the Merit Systems Protection Board, treat Psychiatric medical conditions any differently than, say, bulging discs, degenerative disc disease, or carpal tunnel syndrome, etc.?  Is there a greater need to explain the symptoms of psychiatric conditions, in preparing an Applicant’s Statement of Disability, than conditions which can be “verified” by diagnostic testing?  Obviously, the answer should be: There is no difference of review of the medical condition by OPM or the MSPB.

Certainly, this should be the case in light of Vanieken-Ryals v. OPM.  Neither OPM nor an MSPB Judge should be able to impose a requirement in disability retirement cases involving psychiatric disabilities, that there needs to be “objective medical evidence,” precisely because there is no statute or regulation governing disability retirement which imposes such a requirement that “objective” medical evidence is required to prove disability.  As I stated in previous articles, 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,” the evidence presented concerning psychiatric disabilities should not be treated any differently than that of physical disabilities.

As the Court in Vanieken-Ryals stated, OPM’s adherence to a rule which systematically demands medical evidence of an “objective” nature and refuses to consider “subjective” medical evidence, is “arbitrary, capricious, and contrary to law.”  Yet, when preparing the Applicant’s Statement of Disability, it is always wise to utilize greater descriptive terms.  For, when dealing with medical conditions such as Bipolar disorder, Major Depression, panic attacks, anxiety, etc., one must use appropriate adjectives and “triggering”, emotional terms — if only to help the OPM representative or the Administrative Judge understand the human side of the story.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Proper Response to the Agency

It is often difficult to inform an Agency of one’s decision to file for disability retirement. On the one hand, it is often a place where a Federal Employee has spent many years working for; with multiple years of interaction, both good and bad, it is a place which has grown to play a prominent role in the employee’s daily life, with necessary interpersonal infusions of personalities, playing such an influence as important as one’s personal family life — and, because a person may spend 8 – 10 hours a day, week after week, month after month, like life in a family, it has come to embrace a place of primary importance in one’s life.

As such, to inform such a place of one’s decision to file for disability retirement is, in effect, to inform them of one’s separation from that primary location of importance.  Such separation can be as psychologically devastating as a “divorce” which, in many respects, it is similar to.  That is often why the role of an attorney can be important.  An attorney can be a “middle-man”, an arbiter to soften the strain of such a separation from a federal employee from his or her “family”.

Remember, this is an administrative process; it need not be an adversarial process.  An attorney experienced in disability retirement law should know the process, and act to soften the separation which has been long in coming, and work to garner a sense of “teamwork” between Agency and employee, to attain as amicable a separation as possible.

Sincerely,

Robert R. McGill,Esquire

Federal Disability Retirement: Actions from Federal Government Agencies or the Postal Service

I often receive telephone calls from Federal and Postal employees worried about what their Supervisor will write in the SF 3112B (Supervisor’s Statement) — the lies, half-truths, and vindictive statements that some Supervisors will, for whatever reason, attempt to have that “last parting shot”. Such acts by supervisors are, for the most part, and fortunately, the exception, and not the rule; but each time it happens, it is despicable to the exponential degree — especially in light of the context of attempting to harm a Federal or Postal employee who has a serious medical disability, and needs the financial security offered by disability retirement.

As a general rule, the best approach to take is to follow the rule of thumb of the wise man: Do not worry about those things over which you have no control; focus upon those things over which you do have control. Remember that this is a medical disability retirment — with the emphasis upon the term “medical”. Having said that, a disability retirement application must first and foremost focus upon obtaining the most excellent medical report. If this is accomplished, then in 99% of the cases, it will nullify and make irrelevant anything which the Supervisor puts down on the Supervisor’s Statement. This is the best and wisest approach to take; do not waste your time, emotional energy, or any further part of your life worrying about a Supervisor who lacks the fundamental compassion to be honest and truthful about an individual who has shown years of loyalty to the Federal Service. He/she is not worth it.

Sincerely,

Robert R. McGill, Esquire

Agencies Actions and the Federal Disability Retirement Application

I often receive telephone calls from Federal and Postal employees worried about what their Supervisor will write in the SF 3112B (Supervisor’s Statement) — the lies, half-truths, and vindictive statements that some Supervisors will, for whatever reason, attempt to have that “last parting shot”.

Such acts by supervisors are, for the most part, and fortunately, the exception, and not the rule; but each time it happens, it is despicable to the exponential degree — especially in light of the context of attempting to harm a Federal or Postal employee who has a serious medical disability, and needs the financial security offered by disability retirement.

As a general rule, the best approach to take is to follow the rule of thumb of the wise man: Do not worry about those things over which you have no control; focus upon those things over which you do have control.  Remember that this is a medical disability retirement application — with the emphasis upon the term “medical”.

Having said that, a disability retirement application must first and foremost focus upon obtaining the most excellent medical report.  If this is accomplished, then in 99% of the cases, it will nullify and make irrelevant anything which the Supervisor puts down on the Supervisor’s Statement.

This is the best and wisest approach to take; do not waste your time, emotional energy, or any further part of your life worrying about a Supervisor who lacks the fundamental compassion to be honest and truthful about an individual who has shown years of loyalty to the Federal Service. He/she is not worth it.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement: When to Get an Attorney

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

OPM Disability Retirement: Situational Disability II

To reiterate: Situational disability can be an issue which can defeat a disability retirement application, precisely because OPM (and if it gets to the MSPB level, the Administrative Judge) can conclude that the Psychiatric disability in question originates and results in response to the hostile workplace environment.

These three concepts are important to understand — originate, result in, and result “in response to”. A psychiatric condition can originate from a hostile work environment, but as long as the medical condition then pervades beyond the work environment and impacts a person’s life through and through, then that alone does not constitute situational disability, because while it may have originated from A, it is not limited to A.

The second concept — results in — must be seen in the context of the condition of the psychiatric disability. Thus, does the (for example) Major Depression or anxiety result solely from the work environment, or does one experience the symptoms while at home, even while away from the work environment?

And thirdly, does the individual experience the symptoms of the psychiatric condition “in response to” his or her exposure to the work environment, or are the symptoms all-pervasive: i.e., throughout all aspects of the person’s life?

To differentiate these three concepts is important in avoiding the pitfalls of situational disability, and in helping to prepare a Psychiatrist in either preparing a medical narrative report, or in his or her testimony before an Administrative Judge at the Merit Systems Protection Board.

Sincerely,

Robert R. McGill, Esquire

OPM Federal Disability Retirement: The Danger of Situational Disability

The danger of falling into the trap of situational disability, which is one of a number of reasons for denying a FERS Disability Retirement application, can come about quite regularly.  Especially because, in the face of contending with a medical disability that is serious enough to warrant changing one’s career, of filing for medical disability retirement — there is often the Agency’s contentious response, of needing to have the continuity of the work accomplished, of being insensitive and lacking compassion for the applicant; in such a context, the applicant views the Agency’s response as hostile.

The employee/applicant, then, in filing for disability retirement, will often make the mistake of focusing upon the hostile work environment, or the lack of compassion and empathy on the part of the Agency — and this will often warrant a denial of disability retirement based upon the medical condition of the applicant as being “situational disability” — meaning that the medical condition of the employee/applicant is limited to the work situation of that particular office or agency.

This is a completely wrong-headed approach for the applicant.  That is why, when I represent my clients, I am singularly focused upon the 2 or 3 main issues that form the essence of a Federal Disability Retirement case, and insist upon focusing my clients upon those very same issues, while setting aside those tangential issues which can ultimately defeat a disability retirement application.

Understand that these peripheral, tangential issues may well be “important” to my client — but I would not be doing my job in representing my clients if I allowed the peripheral issues to become “front and center” — for that would be a disaster for my clients. I represent people to obtain disability retirement benefits.

That is my job as a lawyer.  That is my focus.  If I allow my focus to waiver, then I am not representing my clients properly.

Sincerely,

Robert R. McGill, Esquire
Federal Disability Attorney