CSRS & FERS Disability Retirement: OPM May Say So, But… (Part 2)

Then, of course, there are the multiple “other” issues which the Office of Personnel Management “says so”, such as failure to pay the full amount of back-pay due; failure to compute the average of the highest-3 consecutive years correctly; reinstating the full amount of FERS once a person becomes no longer eligible for Social Security Disability benefits; arbitrarily and capriciously deciding that the medical report is not “good enough” in answering a post-disability approved, Medical Questionnaire; failing to compute the earned income in any given year properly, and thereby informing the disability retirement annuitant that he or she earned over the 80% limit of what the former federal employee’s former job currently pays; and a host of other issues.  My specialty is in obtaining disability retirement benefits for my clients; I only selectively get involved in post-disability annuity issues, but the point here is that the Office of Personnel Management has a track-record of being in error, in multiple ways, on multiple issues, in volumes of cases.

It is thus important to recognize that the Office of Personnel Management is not an infallible agency.  Far, far from it, they are merely made up of people who are subject to error, but often stubbornly so — unless you counter their denial in an aggressive, but calm and rational manner.  If a denial comes your way, do not get distressed; prepare your case well, and lay out the groundwork necessary to win.

Sincerely,

Robert R. McGill, Esquire

 

See also: OPM May Say So, But… (Part 1)

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

OPM Disability Retirement: Service Deficiency & Medical Condition

The Office of Personnel Management will often use as a criteria of denial the argument/basis that despite the fact that an individual may have a medical condition such that the medical documentation states that the Federal or Postal worker can no longer perform one or more of the essential elements of one’s job, nevertheless, there has not been a showing that a “service deficiency” has occurred.  Often, agencies systematically write up performance appraisals without much thought or consideration; more often, Federal and Postal workers quietly suffer through his or her medical condition, and strive each day to meet the requirements of their duties. 

Whatever the reason for the lack of attention or perception on the part of the supervisor or the agency to recognize that the Federal or Postal worker has not been able to perform one or more of the essential elements of one’s job, such basis for a denial of a disability retirement application by the Office of Personnel Management is not a legitimate one, because existence of a “service deficiency” is not the whole story:  if it is found that retention in the job is “inconsistent” with the type of medical condition the Federal or Postal Worker has, then such a finding would “trump” the lack of any service deficiency.  That is not something, however, that the Office of Personnel Management is likely to tell you as they deny your disability retirement application.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: The Law

I will be writing an article of greater length on this issue, but suffice it for now that when “the law” works, it works well. A major second case has been decided in favor of the Federal employee — first, it was Vanieken-Ryals v. OPM, 508 F.3d 1034 (Fed. Cir. 2007), and now, Sylvia M. Reilly v. OPM, decided July 15, 2009. Vanieken-Ryals toppled the irrational imposition of a baseless standard by OPM — that there is a distinction to be made between “objective” as opposed to “subjective” evidence concerning medical evidence (example of the absurdity: How do you prove the existence of pain? While an MRI may show a physical condition, you cannot prove that such a physical condition equates to debilitating pain, leaving aside any quantification of pain. Similarly, how do you prove the existence of Major Depression? Anxiety? Panic attacks?).

Now, Reilly v. OPM has toppled another idol of a false standard imposed by OPM: that medical documentation which post-dates separation from Federal Service is near-irrelevant. This has never made sense, for at least 2 reasons: first, since a person is allowed to file for Federal Disability Retirement within 1 year of being separated from service, why would medical documentation dated after the separation be considered irrelevant? Second, medical conditions rarely appear suddenly. Most conditions are progressive and degenerative in nature, and indeed, that is what the Court in Reilly argues. Grant another win for the Federal employee, the law, and the process of law. It makes being a lawyer worthwhile when “the law” works.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: Waiting Too Long

My approach to Federal Disability Retirement law is that there are very few, if any, mistakes made by the applicant which cannot be corrected, amended, or explained, especially where the essential ingredients of a “good” case are in existence: a supportive doctor; a position/duties which are incompatible with the type of medical conditions one suffers from, etc.

However, I receive telephone calls periodically where the individual simply has waited “too long”.  Thus, to clarify: If you’ve been denied twice by the Office of Personnel Management, and you have a Hearing before an Administrative Judge 3 days from today, then you have probably “waited too long” (although, if you can get a postponement, or suspension of the case, there may still be time).

If you’ve been denied by OPM and the Merit Systems Protection Board has already denied your case, then you have probably “waited too long”.  Or, if you have been denied by OPM and by the MSPB and by the Full Board, then you have probably “waited too long”.  I hope that I am getting the point across by overstating the case — while each individual must decided when it is the “right time” to get a lawyer to help in filing for disability retirement cases, and yes, while I take on cases at all stages of the process, the point is quite simple: It is better to have the expertise of an experienced attorney earlier, than later. In most case, that means at the very beginning of the process.

Sincerely,

Robert R. McGill, Esquire