Federal & Postal Service Disability Retirement: How Many Should Be Listed (Part 2)?

The listing of the medical conditions in a Federal Disability Retirement application, as it is descriptively written on the Applicant’s Statement of Disability (SF 3112A) for FERS & CSRS disability retirement, to be submitted to the Office of Personnel Management, is a separate issue from the creative description of the symptoms which the applicant experiences as a result of the identified listing of the medical conditions.  Thus, a distinction should be made between the “official” diagnosed medical conditions (which should be limited in number, for reasons previously delineated) and the multiple and varied “symptoms” which result from the listed medical conditions.  Thus, while one may suffer from the medical condition termed as “Fibromyalgia”, the symptoms can be multiple:  chronic and diffuse pain; impact upon cognitive abilities, inability to focus and concentrate, symptoms which are often termed as “fibro-fog”, etc. 

When the Office of Personnel Management approves a Federal Disability Retirement application under FERS & CSRS and identifies the specific medical condition by which it is approved, it will identify the medical condition, and not the symptoms.  This distinction is important because, when an applicant prepares the narrative to show the Office of Personnel Management what he or she suffers from, the differentiation between conditions and symptoms is important to recognize when creatively and descriptively writing the narrative of one’s medical conditions.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: An Art Form (Part II of II)

In constructing the narrative of one’s story of the human condition and how it impacts the essential elements of one’s Federal or Postal job, it is important to weave the story such that it relates as a story.  Every story has a beginning and an end; every story must contain the elements of an effective narrative:  What has occurred; the symptoms; the diagnosis; how the symptoms impact upon one’s ability to perform one’s job; what are some of the essential elements of one’s job; as well as some impact upon one’s personal life.

Now, the Applicant’s Statement of Disability has appropriate sections to “fill in the blank”; but one’s story should not be merely a matter of filling in the blank; instead, it should be a narrative — a coordination of the story, consistent with the medical narrative report obtained from the doctor; and finally, a legal memorandum arguing the law.  The weaving of these elements, in my experience, constitutes what I consider to be a successful disability retirement application.

Sincerely,

Robert R. McGill, Esquire

Federal Disability Retirement: Symptoms versus Diagnosis

If disability retirement were merely a matter of determining the proper diagnosis of a medical condition, and having a doctor ascribe a percentage rating of disability, then the process of disability retirement would substantively be altered, and perhaps there would be far fewer cases to adjudicate at the Merit Systems Protection Board level.  For, if the criteria were that ‘cut and dry’, there would be little for OPM and the applicant & the applicant’s lawyer to argue over.

However, it rarely is that ‘cut and dry’ — because the major battle is rarely over the diagnosis; it is rarely over an issue concerning a percentage ascription of disability; rather, it is over the symptoms manifested, the significance of such symptoms upon the type of work one does, and in the impact such symptoms have upon the essential elements of one’s job.

That is why descriptive terms are important in disability retirement law. It is not so important ‘what it is’, as opposed to ‘how it is characterized’.  From this perspective, it is important for a disability retirement attorney to be more of a poet than to be cold and analytical — although, the best approach would be to have a little bit of both.

Remember to always know the context — the applicant will not be standing in front of an OPM representative showing how terrible the applicant’s medical condition is; there will be no visual presentation; everything is based upon a narrative — the applicant’s statement, the medical documentation, the legal memorandum of the attorney, etc.  Thus, it is all-important for the attorney who represents a disability retirement applicant to have a good command of the English language.

Sincerely,

Robert R. McGill, Esquire

Remember the Details in Your FERS Disability Retirement Application

At each state of attempting to get a Federal disability retirement application approved, it is important to “remember the details”.  For example, at the Merit Systems Protection Board level, in conducting a Hearing, remember that if the best medical evidence/testimony you are able to provide is through a health professional other than an “M.D.” (e.g., a Therapist, a Nurse Practitioner, a Chiropractor, etc.), always point out the unique credentials of the provider, to include whether in the particular state in which he/she practices, if greater latitude and responsibilities are given to the practitioner.

Thus, it may be that in one state a Nurse Practitioner can exam, diagnose, and prescribe a medication regimen without the direct oversight of a medical doctor, whereas in other states such latitude may not be allowed. This should be pointed out to the Judge, to emphasize greater credibility of the testimony of the practitioner.

Further, remember that in Vanieken-Ryals v. OPM (U.S. Court of Appeals for the Federal Circuit, November, 2007), the Court therein reiterated that the medical documentation/evidence required must come from a ‘licensed physician or other appropriate practitioner’, and so long as that medical practitioner utilizes “established diagnostic criteria” and that which is “consistent with generally accepted professional standards”, the testimony cannot be undermined.

Use the strengths of the case you have, and emphasize the little details that matter.

Sincerely,

Robert R. McGill, Esquire