OPM Disability Retirement: The Spouse

I find that when a person is filing for Federal Disability Retirement benefits under FERS or CSRS, an important component which is often overlooked is the supportive spouse.  I often get calls concerning various aspects of the Disability Retirement process — not from the applicant, but from the spouse.  And, indeed, this is natural, because often the medical condition itself is serious enough that the applicant is unable to “handle” or “deal with” the complexities of the process itself.  It becomes further complicated when the medical condition which is suffered is a psychiatric condition — severe Major Depression, anxiety, panic attacks, suicidal ideations, etc.

However, whether it is psychiatric or physical, a supportive spouse — or “significant other” — is often very, very important to the success of the entire process.  Obviously, as an attorney who represents “the Client”, I must be careful that there is never a conflict between the Applicant (my client) and “the spouse”, but that is rare.  In almost all cases, I find that the spouse is looking after the best interest of my client, and I am happy to talk to and update the spouse on any and all issues surrounding disability retirement issues, because I know that he/she is looking after the best interests of my client, just as I want to.

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

Federal and Postal Disability Retirement: Are Psychiatric Disabilities Denied More Readily?

I am often asked whether or not it is more difficult to get disability retirement benefits under FERS or CSRS based upon a psychiatric medical condition (e.g., PTSD, Major Depression, Anxiety, panic attacks, Bipolar Disorder, etc.).  Does the Office of Personnel Management deny a disability retirement application which is based solely upon a psychiatric condition?   Should a FERS or CSRS disability retirement application always include a physical condition? The short and simple answer is an unequivocal “No”.

Let me provide a slightly more expanded answer:  (1)  In my experience, psychiatric disabilities present no greater obstacles than physical disabilities.  So long as we can prove, by a preponderance of the evidence, that the medical condition — physical or psychiatric — prevents one from performing the essential elements of one’s job, there really is no difference between the two.  (2)  Do not “add” a physical disability because you think that a psychiatric disability is “not enough”.  This would be a foolish approach.  Focus upon the primary medical conditions, whether physical or psychiatric, in proving your case.  (3)  Remember that disability retirement often has other complex factors which come into play — accommodation issues; certain jobs are more easily shown to be “incompatible” with a psychiatric disability (for instance, Law Enforcement Personnel who have psychiatric disabilities obviously must have the mental acuity to perform the inherently dangerous aspects of the position); and remember that psychotropic medications, prescribed and necessary for daily functioning, often have side-effects which impact one’s ability to perform one’s job.

The point in all of this is that there really is no substantive difference between psychiatric disabilities and physical ones, anymore; the societal stigma of “psychiatric medical conditions” has largely disappeared, and the Office of Personnel Management — in my experience — treats both psychiatric disabilities and physical disabilities on an equal par.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: Thoughts on Specific Disabilities

There is a view that is often proposed that, for certain medical conditions or disabilities, that a different “approach” needs to be undertaken.  Thus, by way of example, certain medical conditions such as (to name just a few, and of course, the list is by no means intended to be exhaustive) Fibromyalgia, Chronic Fatigue Syndrome (CFS), various forms of Multiple Chemical/Environmental Sensitivity cases, and even psychiatric conditions such as Bi-polar Disorder, Generalized Anxiety, etc. — are often thought to be somehow in a “different” category from (again, by way of example) more “traditional” medical conditions such as Multiple Sclerosis, Lupus, Shoulder Impingement Syndrome, Osteoarthritis, degenerative disc disease, herniated discs (cervical or lumbar), Torn ACL, Failed Back Syndrome, etc.

Thus, the question sometimes posed is:  should the former types of medical conditions somehow be treated “differently” than the latter, more traditional types of medical conditions?  My answer is, generally, “No”.

First, each individual case must be treated based upon the uniqueness of the particular case.  Second, to file a disability retirement application “differently” because you fear that OPM may not accept your particular kind of medical condition approaches the entire process in a defensive, almost defeatist manner.  Third, because Federal Disability Retirement is based upon the symptoms which are manifested, as opposed to a “category” of a medical condition, and further, how those symptoms and manifested symptomatologies impact the essential elements of one’s job, it is the emphasis upon the nexus between the symptoms and the core elements of the job which should always be emphasized, and not what your medical condition is “called” or “named” as.

Thus, as a general point of legal approach, I prepare all of my clients’ disability retirement applications in a similar vein:  that, regardless of what condition you have been diagnosed with, the symptoms exhibited and clinically identified by your treating doctor impact your ability to perform the essential elements of your job.  This is the best approach to take in all cases.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Federal Disability Retirement: Psychiatric Disabilities

I am often asked, on an initial interview/consultation of a potential client, whether or not psychiatric medical disabilities (Major Depression, Generalized Anxiety Disorder, PTSD, panic attacks, Bi-polar disorder, etc.) are “more difficult” to prove than physical disabilities. This question is similar, of course, to the question often asked of certain other kinds of disabilities, like Fibromyalgia, chronic fatigue syndrome, Irritable Bowel Syndrome, and other similar (often designated as “auto-immune” disabilities) medical conditions.

In my experience, there is no single generic answer to the question of whether or not a particular medical disability is “more difficult” to prove than another. In my experience, I have gotten approved an application for Major Depression based upon a single-page note from a Psychiatrist; on the converse/inverse experience, I have had cases rejected at the First Stage of the process (but, fortunately, had the same cases approved at the Second, Reconsideration Stage) showing chronic, failed-back syndrome cases where prior surgical discectomies, multiple diagnostic MRIs showing incontrovertible basis for severe and radiating pain, and multiple specialists verifying the client’s clear and irrefutable inability to perform the essential elements of his/her job. In preparing a Federal disability retirement retirement application, my many years of experience has taught me a number of elementary & foundational lessons: First, a clear and concise presentation of providing a direct nexus between the particular medical condition and the type of job that the Federal/Postal employeee performs, is very important; Second, it is very rarely the volume of records which is convincing; rather, it is the quality of the medical report which is paramount; and Third, it often depends upon which OPM Disability Specialist it is assigned to, which sometimes “makes the difference” between approval and denial.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: The “No Other Choice” Case

Then, of course, there are cases where an individual has “no other choice” than to file for disability retirement. Sometimes, it is a chance that is taken — the chance of paying an attorney. Yes, adverse removal actions can impact one’s chances of obtaining disability retirement benefits. A case study: A recent client was removed from a Federal Agency for criminal conduct (obviously, no names will be used, and the facts will be somewhat altered to protect the client’s confidentiality of information). The individual was nowhere near retirement age; but suffice it to say that he/she had been a loyal employee for 20 years. He/she had a medical condition — a psychiatric condition, which pre-dated the criminal conduct. He/she hired me to obtain disability retirement.

What choice did the person have? He/she really had “no other choice” other than to walk away with nothing, or take the chance of paying an attorney (in this case, me). I was blunt about the entire affair: Normally, I am able to get most of my clients approved at the first or second stage of the process, and I will normally ascribe a “success-rate” to a case; in this instance, the probable rate of success, in my opinion, was lower than my normal prediction. Nevertheless, he/she wanted to go forward with it. I contacted the doctors and guided them into writing a forthright medical report; today, the client is receiving his/her disability retirement annuity. Did the person “deserve it” despite the criminal conduct? Absolutely! His/her medical condition pre-dated the criminal conduct, and in fact was a major factor in the actuation of the criminal conduct itself. I am happy for the client, and from a professional standpoint, it is always satisfying to win a case where a client entrusted a case in which he/she had “no other choice” — but once the choice was made, to have made the right choice.

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: The very first step

Federal and Postal employees often get a bad rap; yet, what I find in all cases, without exception, is that Federal and Postal employees take great pride in their work. Moreover, they do not want to file for disability retirement — there is a “mental wall” — a desire at all costs not to file for disability retirement, until the physical pain gets too much, or the psychiatric symptoms become too overwhelming.

It is at that critical point — the recognition that he or she is no longer able to continue to work at a particular job; this is the difficult point of self-awareness that must be faced. This is the very first step which must be taken, before one is able to file for disability retirement. And, indeed, I find that Federal and Postal employees are loyal, hard-working, and motivated to work, and to work hard. But there is a point at which one must come to grips with the fact that a particular job A is no longer a good fit for Federal Worker B, with medical conditions C. When these three elements coalesce, it is time for the individual to seriously contemplate filing for disability retirement. Federal Disability Retirement is a benefit which all Federal and Postal employees are entitled to, if he or she qualifies. When the first step needs to be taken, there is never any shame in that — because you have shown your loyalty, your dedication, and your endurance through your medical conditions; there is a point where you must begin to listen to your doctors.

Sincerely,

Robert R. McGill, Esquire

Federal Disability Retirement: OPM’s Methodology (Part I of II)

When the Office of Personnel Management (OPM) approves a Federal Disability Retirement application, a separate page from the approval letter will often be attached, which states the medical basis upon which the disability retirement application was approved.  The separate page will often state something to the effect of: “You submitted an application for disability retirement based upon medical conditions, A, B, C & D; however, your application was approved for medical condition B only.”

The concern here, of course, is that if you are later selected to answer an OPM Medical Questionnaire asking you to re-establish your medical disability for continuation of your disability annuity some years later, that you make certain that you answer such a Medical Questionnaire based upon that very medical condition upon which you were approved.  This is obviously important.

Some have questioned whether or not you can appeal the approval letter based upon the fact that you believe OPM should have approved you based upon a different medical condition.  In my view, this is not an appealable issue, and if you question OPM as to whether they should have considered you disabled based upon another medical condition, you may be in greater danger by OPM reversing themselves based upon a re-review of your case.

It is best to leave “well enough alone”.  Accept the approval letter based upon the identified medical condition, and inform your treating doctor that you may need his input in the future — to address that very medical condition for which you were approved.

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