Category Archives: Federal Disability Judge-Made Decisions Quoted

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

Posted on by
1

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

Federal & Postal Disability Retirement: The Agency & the Individual

Posted on by
Reply

The National Reassessment Program (NRP) now implemented in full force, along with the Voluntary Early Retirement, the cash incentives (many have called to ask whether or not, if one is not eligible or offered the early retirement, but the cash incentive with a resignation is still being offered, should you take it?), and the Postal Service’s ultimate goal of shedding its payroll of anyone and everyone who is not “fully productive” by doing away with all “light duty” or “modified duty” slots (there actually is no “slot”, but rather merely an ad hoc set of duties “made up” on a piece of paper, which is what I have been arguing for years and years, and as the Bracey Decision by the Federal Circuit Court addressed) — all of these developments are merely a large-scale, macrocosmic level of what happens every day on an individual, singular basis. 

This is merely a reflection of an Agency, and how it acts, reacts and responds to injured workers, workers who have medical conditions which impact one’s ability to perform one’s job, and worker’s who are not “fully productive”.  It is merely that which happens every day to individual workers, but on a larger scale.  Think about it:  A Federal or Postal employee who develops a medical condition, and cannot perform one or more of the essential elements of one’s job; job performance soon begins to suffer, although perhaps imperceptibly at first; and the question becomes:  How will the agency, via its representative, the “Supervisor”, treat such an employee?  Sadly, more often than not, in a rough-shod, unsympathetic, and often cruel manner.  The Postal Service is simply doing it on a larger scale; but be fully aware, that every day, a Federal or Postal employee who is suffering from a medical condition, encounters such behavior and treatment — only, on a microcosmic, individual scale.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: Clarity over Question

Posted on by
Reply

While a compromise position on certain issues in Federal Disability Retirement for FERS & CSRS may be the best that one may hope for, obviously, clarity over question is the better course to have.  Thus, for instance, in a removal action, where a Federal or Postal employee is being removed for his or her “excessive absences,” it is best to have the proposed removal and the decision of removal to reference one or more medical conditions, or at least some acknowledgment by the Agency, that would explicate — implicitly or otherwise — that the underlying basis for the “excessive absences” were as a result of the medical condition.  There are cases which clearly state that where excessive absences are referenced by medical conditions, the Bruner Presumption would apply in a Federal Disability Retirement case.

Now, in those cases where the removal action merely removes a Federal or Postal employee for “excessive absences”, there are other methods which may win over an Administrative Judge to apply the Bruner Presumption.  Such “other methods” may include emails or correspondence, at or near the time of the removal action, which appears to put the Agency on notice about specific medical conditions, including attachments of doctor’s reports, medical notations, etc.  Such concurrent documentation can convince an Administrative Judge that, indeed, the question as to whether the “excessive absences” were as a result of a medical condition, and whether the Agency was aware of such an underlying basis, is clarified by documents which provide a proper context within the reasonable time-frame of the issuance of the proposal to remove and the decision to remove.  It is always better, of course, to have clarity over a question, but sometimes the question can be clarified with additional and concurrent documentation.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Argument by Analogy

Posted on by
Reply

Attorneys argue “by analogy” all of the time; cases and decisions from the Merit Systems Protection Board, and language from the Federal Circuit Court of Appeals, provide the fertile fodder for such argumentation.  Thus, such issues as to whether the Bruner Presumption should apply in the case; whether a case is similar to previously-decided Federal Disability Retirement cases; the similarity of fact-scenarios and legal applications — they are all open to argument by analogy.

That is why case-citations are important — even in arguing a Federal Disability Retirement case to the Office of Personnel Management.  Whether and how much influence such legal argumentation can have at the first two stages of the disability retirement application process, may be open to dispute; but cases should never be compiled and prepared for the first or second stage alone; all disability retirement applications should be prepared “as if” it will be denied and will be presented on appeal to the Merit Systems Protection Board.

Such careful preparation serves two (2) purposes:  First, for the Office of Personnel Management, to let them know that if they deny it and it goes on appeal to the Merit Systems Protection Board, they will have to answer to the scrutiny of the Administrative Law Judge; and Second, for the Administrative Law Judge at the Merit Systems Protection Board, to let him or her know that you did indeed prepare the case well, and that your particular Federal Disability Retirement application conforms to the law, and should therefore be approved.

Sincerely,

Robert R. McGill, Esquire

 

Federal Disability Retirement: Further Comment on Vanieken-Ryals

Posted on by
Reply

Vanieken-Ryals v. OPM, decided by the U.S. Court of Appeals for the Federal Circuit on November 26, 2007, has an interesting statement from the deciding Judge, which can be used as “firepower” for anyone who is attempting to obtain Federal Disability Retirement benefits (note of caution:  for lay non-attorneys, be careful in how you use it in trying to convince a lay, non-attorney OPM representative):  “In addition, neither the MSPB nor OPM discussed the content of Dr. [ ] or [ ] evidence in any meaningful way, which further demonstrates that it was not properly considered.  OPM, for example, resorted to a laundry list of “objective” tests and documents that the medical evidence did not contain rather than examining the evidence and evaluating what it did contain.”

Interpretation:  If OPM’s argument is to focus upon what is missing, they have violated their primary Agency/administrative responsibility — that of evaluating, in some “meaningful” manner, the medical evidence which was in fact submitted.  This can be used effectively for the Reconsideration Stage by diplomatically pointing out the error of OPM, and citing Vanieken-Ryals, and highlighting the relevant portions of the medical documentation previously submitted.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS disability retirement: What it means to have the “burden of proof”

Posted on by
Reply

Remember that the applicant who is requesting disability retirement benefits from the Office of Personnel Management always has the burden of proving, by a preponderance of the evidence, that he or she is entitled and eligible for disability retirement benefits.  Even if the Agency proposes and effectuates a removal based upon one’s medical inability to perform the essential elements of one’s job (thereby invoking the “Bruner Presumption”); nevertheless, the burden of persuasion always remains with the applicant.

Never assume anything; yes, the Bruner Presumption is nice to have, but don’t ever rely upon it to have your disability retirement benefits handed to you, because it won’t be.  The Bruner Presumption “can be rebutted if adequate evidence is identified in the record to establish that the appellant actually is not entitled to disability retirement; even with the rebuttable presumption, the appellant retains the burden of persuasion at all times to establish his entitlement to disability retirement” (See Morton v. Office of Personnel Management, 88 M.S.P.R. 691 (2001).

Remember:  you always have the burden to prove your entitlement to disability retirement benefits; you must prove it; you must work tirelessly to show it.

Sincerely,

Robert R. McGill, Esquire
FERS Disability Retirement Lawyer

 

Federal Disability Retirement: SSA Approval, Part II

Posted on by
Reply

In order for an SSA approval to have an impact upon a Federal disability retirement application, the Social Security Administration’s decision letter granting benefits must provide a detailed explanation as to the basis for the approval, delineating the medical basis, the medical conditions upon which the decision was made, etc.  Thereafter, the applicant can submit the decision letter, but this is where it is important to have an attorney provide the proper legal & foundational argument — to provide the contextual applicability.

The legal basis, to start with, is found in Trevan v. Office of Personnel Management, 69 F.3d 520, 526-27 (Fed. Cir. 1995), in which the Federal Circuit Court found that in making a determination of eligibility for disability retirement, the Board (and thus, by analogy, OPM) must consider an award of SSA disability benefits together with medical evidence provided by the appellant to OPM, and other evidence of disability.  This is when an attorney’s tools of “argument by analogy” and pointing out the significant contextual language in an SSA decision letter comes in handy.  Next:  What if an SSA decision letter is not immediately forthcoming, or does not address the same medical conditions as that applied for in one’s disability retirement application?

Sincerely,

Robert R. McGill, Esquire

FERS Disability Retirement: Failing to follow “Reasonable Treatment”

Posted on by
Reply

In fighting to prove one’s eligibility for Federal Disability Retirement benefits, a recurring argument which the Office of Personnel Management often alleges is that an applicant failed to follow the treatment recommendations of the treating doctor.

Such an argument can prove to be fatal to an applicant’s case, but it is good to know the parameters of what it means to “fail to follow” reasonable medical treatment.  For instance, non-compliance with a medication regimen can be fatal to a case.  Thus, OPM will successfully argue that an individual who has failed to follow the medication regimen of the treating doctor has thus failed to show that the individual could have returned to work precisely because non-compliance with a medication regimen would logically undermine the potential efficacy of the medical treatment.

On the other hand, invasive surgery is normally not required, and the Merit Systems Protection Board has stated that an “estimated probability of success of future surgery is speculative, just as a prediction as to the worsening of a condition may be, and will not necessarily provide a basis for denial of a disability annuity.”

These are two light-posts on the spectrum of what is deemed “reasonable treatment”.  Most issues concerning reasonable medical treatment fall somewhere between these two extremes, and the best course of action (obviously) is never to self-treat, or make medical decisions without the input of your treating doctor.  Indeed, to not follow the medication regimen of your doctor is a manner of self-treatment; on the other hand, to elect not to have surgery because of the speculative success/failure rate is a reasonable decision which the Merit Systems Protection Board will not second-guess.  What falls in-between these two extremes should always be with the guidance of “reasonableness”, in close consultation with your treating doctor.

Sincerely,

Robert R. McGill, Esquire

 

OPM Disability Retirement: The Purpose of Case Law Citation

Posted on by
Reply

Is it necessary for a Federal Disability Retirement Applicant to cite relevant case-laws and statutory authority when filing for disability retirement? Or, should the medical evidence be sufficient? Certainly, there is no statutory requirement that “the law” be referenced when filing for disability retirement. And, further, it is normally not a good idea for a non-lawyer Federal or Postal employee to refer to case-law or relevant statutory authority, if only because non-lawyers often mis-state the law, or misinterpret relevant case-law authority.

The primary purpose why I refer to, and cite relevant statutory authority and case law, even at the initial administrative stage of filing for disability retirement on behalf of a Federal or Postal employee (normally, I will prepare a lengthy legal memorandum for each case), is because I want to preempt any mis-statement of law to the benefits specialist reviewing the application packet.

It is important at each stage of the process to point out the relevant law, the applicable case-law, the judicial opinions which have addressed the multiple issues which can deter or potentially derail a disability retirement application. While the benefits specialist at the Initial Stage of the process may not be fully aware of the applicable laws, it is the job of the Attorney to point out the law, and demand that the Office of Personnel Management conform to the relevant, current judicial constraints which should be adhered to.

Sincerely,

Robert R. McGill, Esquire

 

Federal disability retirement: Getting the Bruner Presumption

Posted on by
Reply

If an individual is successful in persuading the Agency to remove him or her for his/her medical inability to perform the job, then the entitlement to what is coined as the “Bruner Presumption” is obtained. This is a great advantage, but one which is often misunderstood.

Remember that, under Bruner v. Office of Personnel Management, 996 F.2d 290 (Fed. Cir. 1993), when an individual is accorded the Bruner Presumption because of being removed for one’s medical inability to perform one’s job, this merely means that the “burden of production” shifts to the Office of Personnel Management, who must disprove your entitlement to disability retirement. However, the initial burden of proving by a preponderance of the evidence must still be met: i.e., one must still submit sufficient medical evidence to show that one was or is unable to perform the essential elements of one’s job.

This point should be obvious: for the Agency itself would never have separated an individual unless there was medical evidence to show that the individual could no longer perform the job. Thus, the very medical evidence which supported and justified the Agency’s action, is the same medical evidence which can be used to meet the initial burden of proof with OPM. The key is that, after this burden is met, then OPM has the harder burden of disproving that which the applicant has met. This is the great advantage of the Bruner Presumption.

Sincerely,
Robert R. McGill, Esquire