Federal & Postal Service Disability Retirement: Experience & the Medical Condition

Often, when a client receives the finalized disability retirement packet, I receive a response that goes something like:  “I didn’t realize I was so bad off, until I read through the prepared packet.”  While I have not personally experienced the medical conditions of my many clients over the years, I have the experience of having spoken to them, and have learned about the symptoms, the words which best describe the pain, the impact, and the symptoms which are experienced on a daily basis.

That is why it is an absurdity for the Office of Personnel Management, for example, to continually and redundantly refer to Fibromyalgia cases as ones with symptoms which “wax and wane”.  Or, with severe Major Depression, Anxiety and panic attacks, the Office of Personnel Management will systematically deny many such claims by stating that there is no “objective medical evidence” to show that the individual is unable to continue to provide efficient service in a cognitive-intensive job.

It is the job of the attorney, in a Federal Disability Retirement case, to be the one who projects the experience of the disabled Federal or Postal employee.  The attorney does not have to personally experience the medical condition in order to properly and descriptively convey the impact of the symptoms and debilitating conditions; however, it is helpful if the attorney has had a wide range of experience — by having spoken to multiple individuals over the years who have personally experienced such conditions.  In this way, the attorney can obtain the experience to express the medical experience of the applicant.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Each Step is a New Review

There are only one of several ways in which a Federal disability retirement application under FERS or CSRS can be lost: Either a Judge at the Federal Circuit Court of Appeals renders a final opinion denying a Federal or Postal Employee his or her disability retirement, or the Federal or Postal employee simply gives up.  As to the former:  Even then, if the Federal or Postal employee has not been separated from service for more than one (1) year, he or she may file a new application for OPM Disability Retirement.

Thus, we are left with the latter:  a disability retirement applicant simply gives up.  By “giving up” is meant:  the next step is not taken; the time-frame within which to file a Request for Reconsideration or an appeal is allowed to “lapse”; or, if an appeal is taken, it is done with resignation and surrender.  Nothing good can come out of such an approach.  Each step of the process in a Federal Disability Retirement case must be attacked aggressively.  Each step must be looked at as a potential place for a new review.

Think about it in reverse:  If you don’t take the next step, then nothing good will certainly happen, so what is there to lose?  Indeed, there are times when a client hires me to file a Request for Reconsideration or an appeal to the Merit Systems Protection Board, and the mere filing of my appearance into the case persuades and convinces the OPM representative to reverse course and grant the disability retirement application.

The point of making such a statement is not to “brag”, but to make the larger point:  good things can happen only if you affirmatively act.  Otherwise, you are left with what King Lear said to his daughter Cordelia, that “nothing can come from nothing”.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Discretion in a Response (Part 1)

When a Federal Disability Retirement applicant under FERS or CSRS receives an unfavorable response from the Office of Personnel Management (translated:  an initial Denial), you have the right (which must be asserted in order to move forward in the future, i.e., to the MSPB and beyond) to file a Request for Reconsideration.  If you receive a second denial, then the only response required (and which should and must be asserted) is an appeal to the Merit Systems Protection Board.  A response to the initial denial, however, should include a reply to the (often) detailed “discussion” section of the denial letter.

Normally, when I file a response (in addition to obtaining additional medical documentation from the doctors, and any other substantiating documentation which may be relevant), I normally write up a 5 – 7 page responsive legal memorandum rebutting the denial letter.  Now, this is where “discretion” is necessary.  Upon an initial reading of a denial letter, one’s first response is normally not that which one should act upon, because it is often a reaction of, “What???”   Discretion is a virtue to follow; there must be a proper balance between responding to every single criticism from OPM (not a good idea), to ignoring everything in the denial letter (also not a good idea), to choosing two or three of the more substantive issues brought up and addressing those issues.  How to address them, with what tone, what manner & style, etc., is what an attorney is for.

Sincerely,

Robert R. McGill, Esquire