OPM Disability Retirement: After Separation from Service (Part 2)

Of course, it is always the separation from service based upon reasons delineated other than medically-based reasons which give rise to concerns in a federal disability retirement case.  Understand, however, that the “Bruner Presumption” is essentially a “scale-tipper” for the Office of Personnel Management (supposedly) and for the Administrative Judge at the Merit Systems Protection Board (of somewhat greater certainty).  By this, I mean merely that, with or without the Bruner Presumption, a Federal Disability Retirement applicant under FERS or CSRS must still prove by a preponderance of the evidence that he or she is eligible and entitled to federal disability retirement benefits. “Preponderance of the evidence” is essentially proof such that it is “more likely the case than not”.  Thus, when all things are equal, the Bruner Presumption is supposed to tip the scale in favor of the federal disability retirement applicant. 

On the other hand, if an individual was removed for reasons other than medically-based reasons — i.e., as a hypothetical, let’s say he was removed “for cause” — an act of dishonesty; failure to follow certain agency procedures; or whatever the case may be.  Does such a removal tip the scale the other way?  Not necessarily; however, it makes gathering the proper medical evidence that much more important, and what I often do is to try and tie in the underlying behavior which resulted in the removal “for cause”, with the medical basis — if at all possible.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability: The Filing I

Never be deceptive in your filing. Always be truthful. To be deceptive or untruthful will harm your credibility, your case, and ultimately, may defeat your ability to obtain disability retirement benefits. Now, there is a conceptual distinction between being “truthful” and emphasizing certain issues of your case, while leaving certain other issues as secondary and less prominent in the documents & supportive papers filed.

Thus, to take a rather crude example, while everyone in the world spends a great deal of his or her life in the restroom, we rarely — if ever — talk about such events. Is it because we are not being “truthful”? No — instead, while it is an issue which is not emphasized, it is not something which we are also being deceptive about.

Thus, with respect to disability retirement issues, one should never deliberately attempt to mislead, hide, or otherwise “expunge” certain aspects of the disability retirement application. At the same time, however, those aspects which are not very helpful, or which may harm your case, should not be placed in bold-type or underlined in red. Wherever possible, those aspects which will weaken your case, should simply be de-emphasized — but never deliberately hidden.

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