Tag Archives: Application, Appeals, and Other Medical Documentation Submitted To the OPM

CSRS & FERS Disability Retirement: The Process

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The importance of the “process” cannot be overstated in the filing of Federal Disability Retirement benefits.  It is the “coordination” of all of the various elements involved:  the Medical Narrative Report; the proper legal citations to refer to; the relevance of which medical documents to use; streamlining the documentation; the orderly listing of the medical conditions; how the medical conditions should be described; the narrative description of the impact and nexus between the medical condition and the job description; how to deal with accommodation issues; how to preemptively minimize any adverse impact from an “unfriendly” Supervisor’s Statement; preparing for the “long haul” — the potential denial, the denial at the Reconsideration Stage, and onward to the Merit Systems Protection Board — thus, preparing the case not only for the First Stage, but for any future stages of the process; how to deal properly and intelligently with specific medical conditions which may require a different “tweaking” of the application (i.e., medical conditions such as Fibromyalgia, Chronic Fatigue Syndrome, Bipolar Disorder, panic attacks, Multiple Chemical Sensitivity cases, etc.); the “do’s and don’t’s” of describing certain medical conditions.  These are only some of the issues which must be dealt with, coordinated, and thoughtfully constructed in preparing for a Federal Disability Retirement case.  

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement Cases: Presenting the Case to OPM

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Fortunately, most of my cases which are submitted before the Office of Personnel Management at the Initial Stage are approved. It is important to step back and understand, first and foremost, how the approval/disapproval process works. Remember that the submission to the Office of Personnel Management is a “paper submission”, and as with any bureaucratic presentation, it is important to make sure that it is neat, understandable, and “presentable.” You want to make your particular submission stand out from the thousands which are submitted. Neatness and streamling accounts for much. Merely gathering up a thousand pages of medical documentation and hoping that the sheer volume and weight of the medical records will be proportionate to the seriousness which the OPM representative will view your case, is a foolhardy approach.

I attempt to streamline the case for the OPM representative, by annotating, identifying the medical documentation, explaining the relevance of the documentation, and identifying both statutory and case-law citations which are relevant in supporting the fundamental basis for the disability retirement application. It is important to make a proper presentation. It makes the life of the OPM Representative that much easier, and if the OPM Representative can review the application, read the synopsis, clearly understand the relevance of the medical documentation, be able to analyze the applicant’s statement and do it almost effortlessly, then one is more often than not rewarded with an approval, rather than the dreaded “denial letter”.

Sincerely,

Robert R. McGill, Esquire

Federal Disability Retirement: SSA Approval, Part II

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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

Federal disability retirement: Getting the Bruner Presumption

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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

FERS & CSRS Disability Retirement: Pragmatic Considerations

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Often, pragmatic judgments and decisions must be considered at different stages of a disability retirement application. For instance, whether to submit all of the medical documentation in your possession is a discretionary judgment which needs to be considered. One might wonder why an applicant may withhold some or part of the medical documentation, and the answer is quite simple: if the Office of Personnel Management requests additional medical documentation, or it is rejected at the Initial Stage and further medical documentation needs to be submitted — if the applicant does not have additional medical documentation to submit, then there is very little incentive or basis for OPM to “reconsider” their position of denial.

Now, one might wonder, If the “additional” medical documentation had been submitted in the first place, perhaps OPM would never had requested more documentation, or perhaps they would have approved it to begin with. Not necessarily so. If you have already provided sufficient medical documentation to prove by a preponderance of the evidence your case, sometimes reserving that “extra” set of office or treatment notes is a wise decision. It may be the difference between being able to respond to OPM’s request for additional medical documentation, and not being able to — and the difference between an approval or a denial, and a basis for OPM to “reconsider” their position.

Sincerely,

Robert R. McGill, Esquire

Physician’s Statement, SF 3112C, for FERS & CSRS Disability Retirement

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Instead of signing the SF 3112C (Physician’s Statement), in representing my clients to obtain disability retirement, I write a 4 – 5 page letter directly to the client’s treating physicians to obtain a current medical report. Generally speaking, I advise my clients not to sign the SF 3112C, because it is essentially a general release of medical information which releases any and all medical records to the Agency’s Human Resources designee.

There is no reason to release all of your medical information — especially such information which is private, which is irrelevant to the medical disabilities which are specifically described and identified as the basis of your disability retirement application in your applicant’s statement of disability, and which do not impact your ability or inability to perform you job. Indeed, while the Agency will often insist upon the signature of the 3112C as being “required”, this is simply not true: Look at SF 3112E(8)(d) (Disability Retirement Application Checklist), which states: “SF 3112C, Physician’s Statement (or equivalent).” This shows that signature of the SF 3112C is not required — if you go out and obtain the medical records and reports yourself, and file the supporting medical documentation, then such documentation constitutes its “equivalent”.

It is my job, in representing a client to obtain disability retirement benefits, to prove by a preponderance of the evidence that my client is entitled to disability retirement benefits. It is not my job to release and and all private medical documentation to the Office of Personnel Management — only such documentation as will prove my case. As such, it is important to know what is required, and what is not.

Sincerely, Robert R. McGill, Attorney specializing in disability retirement cases for Federal and Postal employees