OPM Disability Retirement: Argument by Analogy

Attorneys argue “by analogy” all of the time; cases and decisions from the Merit Systems Protection Board, and language from the Federal Circuit Court of Appeals, provide the fertile fodder for such argumentation.  Thus, such issues as to whether the Bruner Presumption should apply in the case; whether a case is similar to previously-decided Federal Disability Retirement cases; the similarity of fact-scenarios and legal applications — they are all open to argument by analogy.

That is why case-citations are important — even in arguing a Federal Disability Retirement case to the Office of Personnel Management.  Whether and how much influence such legal argumentation can have at the first two stages of the disability retirement application process, may be open to dispute; but cases should never be compiled and prepared for the first or second stage alone; all disability retirement applications should be prepared “as if” it will be denied and will be presented on appeal to the Merit Systems Protection Board.

Such careful preparation serves two (2) purposes:  First, for the Office of Personnel Management, to let them know that if they deny it and it goes on appeal to the Merit Systems Protection Board, they will have to answer to the scrutiny of the Administrative Law Judge; and Second, for the Administrative Law Judge at the Merit Systems Protection Board, to let him or her know that you did indeed prepare the case well, and that your particular Federal Disability Retirement application conforms to the law, and should therefore be approved.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability: An Art Form (Part I of II)

As with all effective submissions — pleadings, motions, legal memorandums and, alas, Federal Disability Retirement applications — it should never be approached in a mechanical, one-to-one ratio-like, mathematical manner.  Of course it should contain the technical terms, the medical terms, and the legal arguments.

However, disability retirement under FERS & CSRS — especially the Applicant’s Statement of disability and any legal arguments — should not be matter of matching up a one-to-one correspondence between the medical condition and the particular essential elements which it prevents or impacts.

Certainly, the effect and the conclusion should contain that conceptual correspondence; however, as all good writing contains a technical side, it is also important to weave the story of the human condition and see the writing as an “art” form.

The impact of the human story is important in convincing and persuading the OPM representative to not only understand the medical condition, but to get a sense of empathy for what the applicant is going through.  It is a delicate balance to achieve; yes, the hard legal arguments should be made in order to “force” OPM to see that, legally, they are obligated to approve a disability retirement application; at the same time, if you can touch the empathetic nature of the OPM representative, so much the better.

Sincerely,

Robert R. McGill, Esquire

 

See also: ”An Art Form (Part II)

OPM Disability Retirement: The Merit Systems Protection Board

An appeal to the Merit Systems Protection Board in a Federal Disability Retirement case means that the disability retirement application has been denied twice by the Office of Personnel Management:  at the initial application stage, then at the Reconsideration Stage.  This is often considered to be the third and last try — of convincing an administrative judge (an “AJ”) that you are entitled and eligible for disability retirement.  There are, of course, two additional stages — an appeal to the Full Board and to the Federal Circuit Court — but such avenues present only the right to reverse a decision of the Merit Systems Protection Board, and no new evidence can be presented.

Thus, one might consider the Merit Systems Protection Board as the “last stop” in the administrative process.  Do not think, however, that the process must necessarily be won before the Administrative Judge in a hearing — much work and persuasive argumentation should be made to the OPM representative who is handling the case at this MSPB Stage.  The OPM representative at the Third Stage of the process is usually an attorney; they are competent; they are versed in the case-law — and thus open to be persuaded by legal argumentation.  While the administrative stages (the Initial Stage and the Reconsideration Stage) involved OPM representatives who are non-attorneys, the MSPB Stage involves seasoned attorneys who present an opportunity for persuasion and argumentation, and thus a golden opportunity to convince OPM to reverse their own decision before coming to a Hearing.  Such an opportunity should never be missed, and every effort should be made by the applicant’s attorney to have multiple contacts with the OPM representative prior to the date of the Hearing.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirements: The Office of Personnel Management

I once heard a pastor make a rather unremarkable statement, but profound nevertheless in its simplicity and truth: “Where there are people, there are problems.” To assume that an Agency will make a proper, objective and legally sufficient decision all the time, most of the time, or even more often than not, is probably asking too much. The Office of Personnel Management, as with any Agency, is an entity — a large bureaucracy — made up of “people”. Yes, there are laws governing disability retirement; yes, there are rules, regulations and “criteria” which form the foundational basis for the “decision-making” part of evaluating each disability retirement case; but more profoundly, there are “people” who review, interpret, and apply those rules, regulations, and legal criteria in determining the final outcome: approval or disapproval of a claim.

That is why it is important in “how” a case is presented, as much as “what” it is that is being presented. With people, there are personalities; with personalities, there are variances in how any given OPM person reviews a case and makes a decision, from one to another. Where an attorney can be most helpful, is to “elevate” a case out of being merely one case among many, to making a presentation of a case on three fundamental levels: (1) the seriousness of the medical condition, (2) the legal sufficiency of the disability retirement application, and (3) persuasion by argumentation that it would be a mistake — a misapplication of the legal criteria — to disapprove a disability retirement application. All in all, this comes down to one profound issue: Where there are people, there are problems; and where there are problems, it is often a good idea to make the best presentation possible, at the outset of a disability retirement case.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: Other Stories of Success

There are obviously many, many pitfalls in the attempt to obtain disability retirement benefits from the Office of Personnel Management. Sometimes, I get calls from individuals who tell me that they “heard from a friend” that another employee prepared the disability retirement packet him/herself, and got it through within ___ months (you can fill in the blank with an unbelievably low number — say, 1, 2 or 3), and that there was no need for an attorney, and so why should anyone need an attorney?

I really have no response for such an inquiry; I am always suspicious of such “too good to be true” stories, but on the other hand, inasmuch as I don’t have any facts to refute or otherwise disbelieve such stories, I cannot comment on them.  I can only convey facts, circumstances, and experiences which I have with my own clients (don’t worry — all information received from and on behalf of my clients is protected by attorney-client confidentiality, and I never — ever — divulge personal information; I relate such experiences only in a generic sense, with no names ever mentioned), and indeed, each case is different and unique, and I try and treat each case based upon the specific facts, circumstances, and individual complexities inherent in each.

I really cannot comment on “that other story” that is heard through a chain of mouths and ears, only to be transformed into an unidentifiable success story.

People who come to me and ask for my legal guidance and expertise know that, to the extent I am able, I will answer each question based upon my professional experience; that I try to give a realistic assessment of each case, without embellishment; and my clients remain my clients for life.  Indeed, I get calls almost every week from people who I represented many, many years ago.  If a Medical Questionnaire is received, I am here to guide the recipient so that he/she will be able to retain the disability retirement benefits we fought so hard to obtain.  I have no idea about those “other success stories”; my goal is to satisfy the legal needs of my clients — those who have entrusted their cases in me, and for whom I have a special care and trust for.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Which Disabilities To List

When I look at a potential disability retirement case, I find it helpful to look at the case not only prospectively, but retrospectively. While not a “rule” cast in stone, when the Office of Personnel Management approves a disability retirement case, it will normally attach a page which identifies which disability — normally one, often two, sometimes three — was/were the basis for the approval.  Thus, it is important when preparing a disability retirement packet and application, to identify which medical disabilities will be listed and depended upon; and further, once is it approved, it is helpful to look to the future, for there is a random chance that every 2 years or so, you will be selected to answer a Medical Questionnaire to determine if you are still disabled.

Thus, if you list a minor medical condition, and you get approved for that minor medical condition, if you recover from that condition, you can potentially lose your disability retirement benefits in the future. (Note:  for those of you who are my clients, please do not worry; no client of mine who has received a Medical Questionnaire has ever lost his/her disability annuity).   Thus, it is important to identify those medical conditions which are the “most serious”, and base your medical disability retirement packet upon the most serious, long-term disability first –before listing secondary or additional medical disabilities.  This is not to say that you should not list more than one medical disability; indeed, in preparing my packets for my clients, I will often list more than one, but I do it in sequential fashion, and when I put together my legal memorandum in arguing my case on behalf of my client, I constantly refer back to the central medical disability.

Sincerely,

Robert R. McGill, Esquire

Federal Disability Retirement & the Reconsideration Process

In the process of applying for Federal Disability retirement under FERS or CSRS, it is the “hope and wish” of each applicant that it will smoothly sail through at the initial stage of the application. However, the reality of the process is that a certain percentage of applications get denied at the initial stage (Stage 1 of the process). It is both discouraging and befuddling to receive a letter from the Office of Personnel Management informing you that your disability retirement application has been “denied”.

You are now required to Request Reconsideration of your case within thirty (30) days of the date of denial, and you must submit additional medical evidence or other supporting documentation within 30 days of requesting such reconsideration (Stage II of the process). It is, indeed, a time of disappointment to receive a denial. It is all the more so when it is unclear as to the basis for the denial. Often, a denial letter will refer to the medical evidence without much commentary beyond acknowledging the submission of a medical report, then in the last paragraph, simply make a declarative statement that the medical evidence submitted “was insufficient” to show that you are disabled. Or, more often than not, the OPM Benefits Specialist will actually mis-state the law by claiming that you have “not shown that you are so disabled as to keep you from the workplace” (no such legal standard is required under disability retirement rules, regulations or case-law).

Whatever the reasons given, it is both discouraging and disheartening to receive a denial letter from OPM. However, it is important to calmly, systematically, and with pinpoint focus reply to the letter of denial — even if it doesn’t seem to make any sense. This is done most effectively by using all of the tools required in persuading eligibility and entitlement to disability retirement benefits: the law; the medical report; the medical records; rational and legal arguments –in short, the “nexus” needed to win.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS disability retirement: Beyond the MSPB

Not all cases that should be won, are won. No one can win 100% of the time; think about it — even the best Major League Baseball players strike out at least 2 out of every 3 at-bats. Most strike out every 3 out of 4 times. Fortunately, I am able to pass through a high percentage of my clients at Stages 1 or 2 of the Disability Retirement process, and that is how it should be.

Every now and again, however, a case must go to the Merit Systems Protection Board; and out of the small number that must get to that point, an even smaller number goes before an Administrative Judge who is clearly anti-employee, and ignores the law and sides with the Office of Personnel Management. Fortunately, most MSPB judges are fair and understand that disability retirement laws favor, for the most part, approval of disability retirement benefits. In those instances where, for whatever reason, a case has been denied at Stages 1 & 2, and the MSPB Judge completely ignores the strong and unequivocal testimony of the doctor, then there is still a good shot at winning the case at the 4th level — a Petition for Full Review.

Such a Stage must be approached by pointing out the legal deficiencies and, indeed, the Hearing Judge’s complete mis-application of the law. It must be done delicately and respectfully, however, because you are essentially asking that the Full Board (a panel of 3 Administrative Judges) reverse one of the Administrative Judges at the Merit Systems Protection Board — to declare that the Administrative Judge “erred” in applying the law. It is possible to do — but it must be done with care, respect, and technical expertise.

Sincerely,

Robert R. McGill, Esquire