CSRS & FERS Disability Help: Standard Forms

Remember that Standard Forms are produced with the intent of having you believe that you are constrained by the questions as posed, by the space as constrained, and by the language as restricted.

Nothing could be further from the truth.

All forms, including governmental standardized forms, are merely inquisitive templates requesting information.  If the form fails to ask the proper question, or does not pose a question such that it does justice to your particular situation or problem, then you should freely ask the question you believe should be asked, on a “continuation page”, or in an addendum created by you or your attorney.

In disability retirement applications, this is especially true of Standard Form 3112A (Applicant’s Statement of Disability).  Instead of answering only the constraining questions as posed within the framework of the form, it is often appropriate to add another page and create, and subsequently answer, relevant questions which are neither posed nor implied by the Standard Form.

This is not to say that the applicant should abuse the process by adding irrelevant questions; rather, it is to allow for the “full story” of a disability retirement application.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Interaction with EEOC & Other Legal Processes

I am often asked if other legal processes already filed — an EEOC Complaint, a corollary adverse action being appealed, etc. — will have an impact upon a Federal Disability Retirement application.  My general answer is, “No, it will not have an effect upon filing for Federal Disability Retirement.”

The second question which often follows, is:  What if the EEOC filing contradicts the Federal Disability Retirement application?  While the full answer to such a question will differ from case to case, depending upon the peculiar and particular circumstances of each individual case and application, my standard response to the second question will often contain a responsive query:  Have you ever heard of an attorney speaking out of two or three (or four) sides of his mouth?

As attorneys, we make multiple (and sometime contradictory) arguments all the time.  I am not concerned with the factual or legal arguments in a concurrent/parallel EEOC case; my job is to make sure that my client obtains a disability retirement — and if it somewhat contradicts the arguments made in an EEOC complaint, so be it — for, after all, I’m merely an attorney, and such inherent contradictions only prove the fact that lawyers have at least four sides to every mouth.

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: Why is mine denied?

There are always multiple (unverified) stories of people who have filed for Federal Disability retirement benefits under FERS & CSRS, based upon what appears to be a “minor” medical condition (at least “minor” in comparison to the medical conditions which were rejected by the Office of Personnel Management per a denial letter), which was approved; yet, you filed a Federal Disability Retirement application based upon multiple major medical conditions, which was denied.  Why me?

Remember that “fairness” is not the criteria in determining the viability of a disability retirement application.

Comparisons of medical conditions with other applicants or co-workers rarely provide any fruitful insight; the point is, the “other guy” got his disability retirement application approved, and you did not.  It may be several factors beyond your control:  Your Supervisor tried to “get back at you” by declaring that all reasonable accommodations were provided; the OPM representative which was assigned to your case was overworked and wanted to clear some of the workload, and yours was one of them; one of your doctors made statements which came perilously close to making your case one of “situational disability”.

Whatever the reasons, you should not worry about factors beyond your control; instead you need to focus upon those factors over which you do have control:  You need to have a strategy on how you will counter the initial denial.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: OWCP, Light Duty & Federal Disability Retirement

As I stated in my previous blog, OWCP is not a retirement system. Instead, it is meant to return an injured worker back to productivity with his or her agency. This is done through means of providing for medical treatments; paying the Federal employee temporary total disability benefits during the time of treatment and recuperation; then, if the Federal or Postal employee is unable to return to the former position in full capacity, to offer a “modified position” to the employee.  At each step in the process of OWCP/DOL, the onerous and burdensome hand of the process becomes clear — for, if at any time, the employee refuses to follow the mandates given by OWCP, the real threat of having one’s temporary compensation suddenly terminated is always a possibility. 

Thus, in accepting OWCP benefits, there is a clear trade-off:  tax free compensation for the price of being completely governed by OWCP.  Then, when the modified job offer is given, you have no choice but to accept it, in whatever form, and must be accepted “as is” — otherwise, your temporary total disability payments will be terminated.  Remember, however, that accepting such a position does NOT preclude you from filing for disability retirement benefits, because the case-law governing Federal Disability Retirement has a “safety” feature:  in order to be considered a legally viable “accommodation” under the law, the modified job that is offered and accepted must have been one which was previously in existence, and vacant.  It cannot be your old job slot, modified by a piece of paper prepared by your agency and the Department of Labor.  It must be a true job.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: Investment for the Future

Ultimately, whether or not this is an optimum time for an individual to file for Federal Disability Retirement under FERS or CSRS is a decision each individual must make, depending upon the specific circumstances.

From a medical standpoint, of course, most individuals have no choice because he/she must file for disability retirement.  From an economic standpoint, as private companies cut back and begin relying upon a part-time workforce without needing to pay for a worker’s health insurance benefits and other benefits, a Federal Disability Retirement Annuitant is a very attractive potential worker, indeed, because most such annuitants retain their own health insurance benefits.

Such an annuitant can go out and find a job making up to 80% of what his/her former job currently pays, and still continue to receive the disability annuity.  Further, while each individual must make a decision concerning hiring an attorney to help secure disability retirement benefits, it should always be looked upon as a long-term investment.

Disability annuitants may be chosen randomly every two years to answer a Medical Questionnaire, and it is equally important to retain the benefits, as it is to initially secure it.  These are all issues which must be considered carefully, as an investment for the future.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement: When it gets to the Merit Systems Protection Board

For whatever reason, a certain percentage of cases reach the third level in the process of applying for Federal Disability Retirement benefits:  The Merit Systems Protection Board.  If an individual is unrepresented at this level, the identical problem as that which occurs in any courtroom presents itself:  an attorney representing an individual provides an appearance of “objectivity” to the administrative judge; the advocacy on behalf of a disability retirement applicant has greater credibility, the arguments made on his/her behalf greater efficacy and weight, merely because the person arguing (the attorney) and the person for whom the arguments are made (the disability applicant), are not one and the same.

Whether fair or not, it is important that a disability retirement applicant obtain representation at this level, because Administrative Judges are more likely to listen to the arguments made by an attorney, precisely because the Attorney does not — other than the professional reputation of winning or losing the case — have a “personal” vested interest in the case itself.  As such, the arguments of an attorney have an appearance of objectivity, and it is that weight of objectivity which may be the deciding factor as to whether the applicant will get the disability retirement annuity, or not.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: When it Gets to the Merit Systems Protection Board (MSPB)

For whatever reason, a certain percentage of cases reach the third level in the process of applying for Federal Disability Retirement benefits:  The Merit Systems Protection Board.  If an individual is unrepresented at this level, the identical problem as that which occurs in any courtroom presents itself:  an attorney representing an individual provides an appearance of “objectivity” to the administrative judge; the advocacy on behalf of a disability retirement applicant has greater credibility, the arguments made on his/her behalf are now greater efficacy and weight, merely because the person arguing (the attorney) and the person for whom the arguments are made (the disability applicant), are not one and the same.

Whether fair or not, it is important that a disability retirement applicant obtain representation at this level, because Administrative Judges are more likely to listen to the arguments made by an attorney, precisely because the Attorney does not — other than the professional reputation of winning or losing the case — have a “personal” vested interest in the case itself.  As such, the arguments of an attorney have an appearance of objectivity, and it is that weight of objectivity which may be the deciding factor as to whether the applicant will get the disability retirement annuity, or not.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement: The Reasonableness of the Governing Law

Without getting into too many comparisons, the laws governing disability retirement benefits are, upon reflection, actually quite reasonable.  Think about it this way:  yes, it doesn’t pay a great amount, but at the same time, you are encouraged to go out and be productive in some other employment capacity, and are able to make up to 80% of what your former job pays currently.

Unlike the stringent and onerous OWCP/DOL laws, you are not subjected to arbitrary, so-called “independent” medical examinations by doctors who make a substantial portion of their livelihood on rendering such “independent” second, third, and fourth opinions; your application is based upon what your own treating doctor says — not by some doctor who is a specialist in “disability ratings” or “disability determinations”.

This latter criteria is actually for the benefit of the applicant, when you stop and think about it.  For, if the law allowed for disability retirement applications to be determined by doctor’s opinions who are “disability specialists”, and not by your own treating doctor, then what would happen is that the entire disability retirement process would become a war between doctors and so-called specialists, overshadowing the one who should count the most — the treating doctor.

Instead, as the reasonableness of the present law stands, the weight of the medical determination is based upon the applicant’s longstanding treating doctor — and that is the way it should be.  For it is only a doctor who has enjoyed many years of an intimate doctor-patient relationship who should be granted the special weight and status that is accorded in disability retirement laws:  the special status of one who can make a viable, respectable determination of one’s employment capabilities, based upon the medical conditions he or she suffers from.  All in all, the disability retirement laws are governed by a criteria of reasonableness.

Sincerely,

Robert R. McGill, Esquire