Tag Archives: Administrative Law

FERS Disability Disability Retirement: The “Process”

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In my last writing, I briefly discussed why filing for Federal Disability Retirement benefits is, and why it must be looked upon as, a “process” as opposed to a mere “filing” with an expectation of an “automatic” approval.  This is because there is a legal standard of proof to be met, based upon a statutory scheme which was passed by Congress, and based upon a voluminous body of “case-law” handed down by the Merit Systems Protection Board and the Federal Circuit Court of Appeals.  With this in mind, it is wise to consider that, because it is a “process” with two administrative “stages” to the process, as well as an Appeal to an Administrative Judge at the Merit Systems Protection Board, then potentially to the Full Board via a Petition for Review, and finally to the Federal Circuit Court of Appeals — as such, each “step” in the process would naturally have a different and “higher” level of the laws governing Federal Disability Retirement.

Because of this, it is often a frustrating experience for applicants, because a rejection or denial at the First Stage of the process often reveals the utter lack of knowledge by the OPM representative of the larger compendium of case-laws that govern and dictate how disability retirement applications are to be evaluated and decided upon.  Often, the so-called “discussion” of a denial letter is poorly written, meandering in thoughtlessness, and self-contradictory and with unjustifiable selectivity of statements from a medical report or record.  Such poor writing reflects a first-level decision-making process, and can be a frustrating experience upon reading the denial letter.  It is good to keep in mind, however, that the entire application procedure is a “process”, and each level is designed to have a greater level of competency and knowledge in the law.

Sincerely,

Robert R. McGill, Esquire

 

CSRS & FERS Disability Retirement: The Law II

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A more extensive article on the recent case of Reilly v. OPM has already appeared in FedSmith.com, because it is an important step forward in Federal Disability Retirement Law.  Decided July 15, 2009 by the United States Court of Appeals for the Federal Circuit, it topples another idol of a false standard imposed by OPM:  that medical documentation which is written by a doctor after a Federal or Postal employee is separated from Federal Service may be dismissed as being near-irrelevant in evaluating and reviewing a Federal disability retirement application. This has never made sense, since many medical conditions are progressive and degenerative in nature, and that is precisely what the Court in Reilly argues.  “The field of forensic medicine abounds with examples of subsequent medical examinations relevant to a prior condition,” the Court in Reilly argued, citing the classic example that “inferencesabout prior intoxication can be drawn from blood alcohol tests conducted at a later time.”  Further, where “proximity in time, lay testimony, or some other evidence provides the requisite link to the relevant period the subsequent evidence can be very probative of a prior disability.” Of course medical evidence gathered within the 1-year period after separation of service should be given probative value.  The Court in Reilly states that principle clearly.

Sincerely, Robert R. McGill, Esquire

OPM Disability Retirement: The Law

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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 Retirement Denials

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When your OPM Medical claim is denied by the OPM Disability Retirement Specialist

 

A received letter from the U.S. Office of Personnel Management quashes the Federal employee’s plans for the future. The deep, emotional disappointment is understandable because it prevents the employee to secure a stream of income; to have the recuperative period in which to recover from a progressively deteriorating medical condition; and generally to be able to “move on” in life.  As all rejections have a negative impact upon a person — in terms of emotional, psychological as well as practical consequences — so an OPM denial letter is seen as a rejection of a compendium of submitted proof concerning a Federal OPM Disability Retirement application.

It is not so much that the denial itself obviously represents “bad news” (that is difficult enough), but again for the OPM Disability Retirement applicant, it casts a long and foreboding shadow upon one’s financial and economic future.  For, obviously, the income from the disability annuity is being relied upon; the applicant filed for Federal disability retirement benefits under FERS or CSRS based upon the assumption that it would be approved, and the future calculation of economic and financial stability was based upon the obvious assumption of an approval.

Long-term plans are made based upon the assumption of approval.  Further, it doesn’t help that the basis for the denial, as propounded by the Office of Personnel Management, is often confusing, self-contradictory, and without a rational basis.

It is often as if the OPM Medical Retirement representative just threw in a few names, referred to some doctor’s reports, and essentially denied it with a selective, almost pre-determined view towards denying the claim.  This is unfortunate, because the Office of Personnel Management is under a mandate to make its decision based upon a careful and thorough review of the applicant’s supporting documention.

However, when an OPM Disability Retirement denial is received, one must fight against the initial feelings of defeat and dismay; work is yet to be done, and a view towards the future must always be kept at the forefront.  A time to give up is not now; it is time to fight onward, and to move forward.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability: The Attorney

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I often get calls from people who have filed for Federal Disability Retirement benefits, from people who are represented by an Attorney but who, for one reason or another, are not satisfied with the work that the attorney has performed.  It is not, in my opinion, proper for an attorney to criticize or judge the work of another attorney, because each attorney has his or her particular methodology in the practice of law.  The fact that another attorney’s methodology of practicing a specific area of law (in this case, Federal disability retirement law) may differ from mine is not a basis for me to criticize another attorney.  The mere fact that a disability retirement application, prepared and submitted by another attorney, is denied by the Office of Personnel Management, is not a basis for concluding that the application packet was prepared in less than a professional manner.  Indeed, if that were the case, I would be subject to the same type of criticism each time one of my client’s disability retirement application was denied at any given stage of the process.  Further, and more to the point, it is a waste of time to criticize the past; what another attorney did or failed to do is besides the point.  The focus needs to be:  What is necessary to move forward, compile additional supporting documentation, and help get the disability retirement packet approved at the next stage of the process.  As to whether or not an individual should switch attorneys mid-stream, that is not for me to say; as with everything in life, such determinations must be made based upon consideration of all of the facts and circumstances of the case, and the client must do what is in the best interest of his or her future.
Sincerely,
Robert R. McGill, Esquire

I often get calls from people who have filed for Federal Disability Retirement benefits, from people who are represented by an Attorney but who, for one reason or another, are not satisfied with the work that the attorney has performed.

It is not, in my opinion, proper for an attorney to criticize or judge the work of another attorney, because each attorney has his or her particular methodology in the practice of law.  The fact that another attorney’s methodology of practicing a specific area of law (in this case, Federal disability retirement law) may differ from mine is not a basis for me to criticize another attorney.

The mere fact that a disability retirement application, prepared and submitted by another attorney, is denied by the Office of Personnel Management, is not a basis for concluding that the application packet was prepared in less than a professional manner.  Indeed, if that were the case, I would be subject to the same type of criticism each time one of my client’s disability retirement application was denied at any given stage of the process.

Further, and more to the point, it is a waste of time to criticize the past; what another attorney did or failed to do is besides the point.  The focus needs to be:  What is necessary to move forward, compile additional supporting documentation, and help get the disability retirement packet approved at the next stage of the process.

As to whether or not an individual should switch attorneys mid-stream, that is not for me to say; as with everything in life, such determinations must be made based upon consideration of all of the facts and circumstances of the case, and the client must do what is in the best interest of his or her future.

Sincerely,

Robert R. McGill, Esquire

 

FERS & CSRS Disability Retirement: The Complexity of the Simple

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Federal disability retirement law, the statutes and regulations which govern eligibility; the multiple case-law opinions from Administrative Judges and Federal Circuit Judges interpreting the governing statutes and regulations; the lawyers who argue different aspects and attempt to “fine-tune” existing law (including this lawyer) — the entirety results in “making complex” that which was essentially simple.

There is an old adage that the King who declared the first law of his Kingdom was really attempting to reduce the unemployment figures by creating the need for lawyers.  Indeed, “the law” is often made more complex by lawyers.  However, while the multiple issues governing Federal disability retirement law under FERS & CSRS may appear, at first glance, “simple”, it is such simplicity which engenders the complex, precisely because laws which reflect a simple conceptual paradigm require extensive interpretation in order to explain the simpleness of the simplicity.  That is why law itself is complex.  Don’t let the complex confluse you.

As you prepare a disability retirement application, recognize that it is a complex process; at the same time, make sure to explain your medical condition and how it impacts your ability to perform the essential elements of your Federal or Postal position in an easy-going, simple and straightforward manner. Don’t make it complex; keep it simple; but recognize the complexities.

Sincerely,

Robert R. McGill, Esquire

OPM Medical Retirement: Trying it Without an Attorney

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I get calls all the time by people who tell me that they thought their particular Federal Disability Retirement case was a “slam dunk”; that the medical documentation was there; that everything looked like it should be approved at the first level.  Then, there are people who tell me the same thing after the second, Reconsideration denial — that he or she thought it should definitely pass through.  But law, and especially administrative law before the Office of Personnel Management, has peculiarities beyond a surface, apparent reality.

There is a process and a methodology of obtaining disability retirement. Can a Federal Disability Attorney guarantee the success of a disability retirement application?  No.  Does an individual applicant have a better chance with the assistance of an attorney who specializes in OPM Disability Retirement Law?  In most cases, yes.  Aren’t there applicants who file for medical retirement, without the assistance of an attorney, who are successful?  Yes.  Should everyone who files for federal retirement hire an attorney?  Not necessarily.

When I speak to a client, I try and place him or her on a spectrum — and on one side of that spectrum is an individual who works at a very physical job, and who has such egregious physical medical disabilities; on the other side of the spectrum is an individual who suffers from Anxiety, who works in a sedentary administrative position (please don’t misunderstand — many people who suffer from anxiety fall into the “serious” side of the spectrum, and I am in no way attempting to minimize the psychiatric disability of Anxiety).

Most people, of course, fall somewhere in the middle.  Yes, I have told many people to go and file his or her disability retirement application without a Federal Disability Lawyer.  There are those cases which are so egregious, in terms of medical conditions, that I do not believe than an attorney is necessary.  However, such instances are rare.  Thus, to the question, Should everyone who files for Federal Disability Retirement under FERS hire an attorney?  Not necessarily — but in most cases, yes.

Sincerely,

Robert R. McGill, Esquire
Federal Disability Retirement Attorney

CSRS & FERS Disability Retirement: The Bruner Presumption – Agency Actions, Part II

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One must never misunderstand the law and its application.  This is true in any legal arena of every area of law; when it comes to Federal Disability Retirement law, the misunderstanding of an application of law can have direct and irreparable consequences:  the failure to secure disability retirement benefits and, therefore, the financial security for one’s future.

The “Bruner Presumption” is one such application of law which is often misunderstood.  Without revealing all of its proper applications, it can (and is) often misunderstood to be equivalent to a “presumption of innocence” — but that would be wrong.  The Bruner Presumption comes about as a result of an Agency Action — of removal based upon the employee’s medical inability to perform one or more of the essential elements of the job.

With or without the Bruner Presumption in Federal Disability Retirement law, the “Burden of Production” — i.e., of the medical documentation, the factual establishment that the Agency is unable to accommodate the individual — still rests and remains with the applicant.  One must never think that the applicability of the Bruner Presumption makes a case a “slam dunk” of any sort.

This is especially so where we are talking about those medical conditions which are often viewed as “suspect” by the Office of Personnel Management — such as Fibroymyalgia, Chronic Fatigue Syndrome, Multiple Chemical Sensitivity cases, etc (by “suspect”, however, I do not mean to imply that such medical conditions make it harder for an applicant to get it approved; rather, it merely requires that the one who is preparing such an application, do it properly, thoroughly, and with legal force).

Remember that the initial, and continuing, burden of production always remains with the applicant; what the Bruner Presumption merely does is to “shift” some of the weight of the burden of proof over to OPM, and in the event of an appeal to the Merit Systems Protection Board, of placing a Federal Disability Retirement case into a more favorable light with the Administrative Judge.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: The Merit Systems Protection Board

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An appeal to the Merit Systems Protection Board in a Federal Disability Retirement case means that the disability retirement application has been denied twice by the Office of Personnel Management:  at the initial application stage, then at the Reconsideration Stage.  This is often considered to be the third and last try — of convincing an administrative judge (an “AJ”) that you are entitled and eligible for disability retirement.  There are, of course, two additional stages — an appeal to the Full Board and to the Federal Circuit Court — but such avenues present only the right to reverse a decision of the Merit Systems Protection Board, and no new evidence can be presented.

Thus, one might consider the Merit Systems Protection Board as the “last stop” in the administrative process.  Do not think, however, that the process must necessarily be won before the Administrative Judge in a hearing — much work and persuasive argumentation should be made to the OPM representative who is handling the case at this MSPB Stage.  The OPM representative at the Third Stage of the process is usually an attorney; they are competent; they are versed in the case-law — and thus open to be persuaded by legal argumentation.  While the administrative stages (the Initial Stage and the Reconsideration Stage) involved OPM representatives who are non-attorneys, the MSPB Stage involves seasoned attorneys who present an opportunity for persuasion and argumentation, and thus a golden opportunity to convince OPM to reverse their own decision before coming to a Hearing.  Such an opportunity should never be missed, and every effort should be made by the applicant’s attorney to have multiple contacts with the OPM representative prior to the date of the Hearing.

Sincerely,

Robert R. McGill, Esquire

When the Office of Personnel Management Fails to Apply the Law

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Federal disability retirement law is often a frustrating process. On the one hand, for an attorney, it can be a professionally satisfying area of law to practice because the end result — obtaining a benefit for an individual who has shown long years of loyal service to working for the Federal Government; providing a source of income for a person who has been impacted by a medical condition; reaching a successful conclusion to a process: these factors are always satisfying for a practicing attorney. On the other hand — this is an administrative process; it is an area called, “Administrative Law”, and at least at the initial stages of the process, the Attorney handling such a case is dealing with non-attorneys at the Office of Personnel Management.

In other areas of practice, there is often an “equality of competence” (presumably), where attorneys compete or engage in adversarial battle with other attorneys. With Disability Retirement Law, however, the “Disability Specialist” at the Office of Personnel Management often has absolutely no clue as to the current laws governing disability retirement. They simply apply a template and, if a specific case goes outside of that preconceived “template”, then the OPM Representative will often deny the case.

Now, in all fairness, most of the people at OPM have a fair idea of the current law, and more importantly, are open to being informed, educated and persuaded by an attorney that a particular case, with its various wrinkles (and all cases have their unique wrinkles), should be approved because of compliance with a particular statute, a relevant case-law, or a particular regulatory statement. In some particular cases, however, when an OPM representative makes a decision based upon complete ignorance of the prevailing disability retirement laws, one can only throw up one’s hands, and hope that the Reconsideration Specialist will have greater knowledge — or, at the very least, is open to being educated on the proper application of the law.

Sincerely,

Robert R. McGill, Esquire