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 Disability Retirements: Groundless Denials of FERS/CSRS Disability Retirement Applications

One would assume that when a disability retirement application has been reviewed by someone at the Office of Personnel Management, and a decision of denial has been rendered, that such a decision will — at a bare minimum — be based upon a legally sufficient ground. In other words, that the legal criteria asserted in the decision will be correctly delineated.

Unfortunately, that is too often not the case. In fact, many of the legal claims asserted by the Office of Personnel Management have no justification in law, and are exaggerated at best, and a mis-statement of the applicable laws, at worst. But for disability retirement applicants who are unrepresented, the individual may well read the decision, believe what the decision states, and become convinced that the burden is too onerous to overcome, and fail to request reconsideration in the case, discouraged that he or she will never be able to meet the legal burden imposed in the initial denial.

Thus, for instance, when an OPM denial letter states that there was “no evidence showing hallucinations, delusions or other symptoms of psychosis,” and therefore the disability retirement is denied, one might conclude: “Since I don’t have those conditions, I must not be qualified for disability retirement.” Wrong! Or, when OPM says: “There was no evidence of hospitalization or the need for such treatment,” one might become completely discouraged and say, “Oh, disability retirement requires that my medical condition is such that it requires hospitalization in order to qualify, and therefore I cannot qualify“. Wrong! Such overstated and exaggerated claims by the Office of Personnel Management are commonplace, and unnecessarily place a burden upon disability retirement applicants through mis-statements of the law. Never allow an OPM mis-statement of the law to persuade you to abandon your case; instead, seek competent legal counsel to explain what the law of disability retirement really is, and proceed from here.

Sincerely,

Robert R. McGill, Esquire

OPM decisions of denial in FERS & CSRS disability retirement case

There are two elements: competency/knowledge, on the one hand, and authority/power on the other. When the two come together, we then have the combination resulting in a reasoned decision. It is indisputable that an Agency has the authority and power to make administrative decisions. On the other hand, if the Agency makes a decision without the proper competency or knowledge, then it can become a problem.

In reviewing a denial letter from the Office of Personnel Management in disability retirement cases, what is most disturbing are the following: First, 90% of the denial letter is based upon a computer template. The references to dates, medical reports & records reviewed, etc., comprise the remainder of the 10%.

Now, that is not to complain that OPM should or must “reinvent the wheel” each time it makes a decision — indeed, the fact that much of the decision is boilerplate, template language is not that disturbing. What is, disturbing, however, is when — under the pretense of competency and knowledge, it makes blatant mis-statements of the law.

Some of the mis-statements are: “The medical documentation does not show that you are totally disabled from performing your job.” There is no requirement under the law that a person needs to be “totally disabled”. Or: “We are unable to make a determination because of the lack of objective medical evidence.” Medical evidence does not need to be “objective” as opposed to a doctor’s reasoned medical opinions. Or: “Fibromyalgia is a condition which waxes and wanes.” OPM is not a medical facility and has no business making medical determinations or declarations.

The authority and power of an Agency must always be used in the context of competency and knowledge, and the Office of Personnel Management must make its decisions based upon the prevailing case laws, statutes and regulations which govern it. It is the job of a disability retirement attorney to point out such misstatements of law.

Sincerely,

Robert R. McGill, Esquire