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

OPM Federal Disability Retirement: The Danger of Situational Disability

The danger of falling into the trap of situational disability, which is one of a number of reasons for denying a disability retirement application, can come about quite regularly.  Especially because, in the face of contending with a medical disability that is serious enough to warrant changing one’s career, of filing for medical disability retirement — there is often the Agency’s contentious response, of needing to have the continuity of the work accomplished, of being insensitive and lacking compassion for the applicant; in such a context, the applicant views the Agency’s response as hostile.

The employee/applicant, then, in filing for disability retirement, will often make the mistake of focusing upon the hostile work environment, or the lack of compassion and empathy on the part of the Agency — and this will often warrant a denial of disability retirement based upon the medical condition of the applicant as being “situational disability” — meaning that the medical condition of the employee/applicant is limited to the work situation of that particular office or agency.

This is a completely wrong-headed approach for the applicant.  That is why, when I represent my clients, I am singularly focused upon the 2 or 3 main issues that form the essence of a disability retirement case, and insist upon focusing my clients upon those very same issues, while setting aside those tangential issues which can ultimately defeat a disability retirement application.

Understand that these peripheral, tangential issues may well be “important” to my client — but I would not be doing my job in representing my clients if I allowed the peripheral issues to become “front and center” — for that would be a disaster for my clients. I represent people to obtain disability retirement benefits.

That is my job.  That is my focus.  If I allow my focus to waiver, then I am not representing my clients properly.

Sincerely,

Robert R. McGill, Esquire