OPM Medical Retirement: Trying it Without an Attorney

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

OPM Disability Retirement: Do Psychiatric Disabilities Still Carry a Stigma?

Do Psychiatric Conditions still carry a stigma?  Does the Office of Personnel Management, or the Merit Systems Protection Board, treat Psychiatric medical conditions any differently than, say, bulging discs, degenerative disc disease, or carpal tunnel syndrome, etc.?  Is there a greater need to explain the symptoms of psychiatric conditions, in preparing an Applicant’s Statement of Disability, than conditions which can be “verified” by diagnostic testing?  Obviously, the answer should be: There is no difference of review of the medical condition by OPM or the MSPB.

Certainly, this should be the case in light of Vanieken-Ryals v. OPM.  Neither OPM nor an MSPB Judge should be able to impose a requirement in disability retirement cases involving psychiatric disabilities, that there needs to be “objective medical evidence,” precisely because there is no statute or regulation governing disability retirement which imposes such a requirement that “objective” medical evidence is required to prove disability.  As I stated in previous articles, as long as the treating doctor of the disability retirement applicant utilizes “established diagnostic criteria” and applies modalities of treatment which are “consistent with generally accepted professional standards,” the evidence presented concerning psychiatric disabilities should not be treated any differently than that of physical disabilities.

As the Court in Vanieken-Ryals stated, OPM’s adherence to a rule which systematically demands medical evidence of an “objective” nature and refuses to consider “subjective” medical evidence, is “arbitrary, capricious, and contrary to law.”  Yet, when preparing the Applicant’s Statement of Disability, it is always wise to utilize greater descriptive terms.  For, when dealing with medical conditions such as Bipolar disorder, Major Depression, panic attacks, anxiety, etc., one must use appropriate adjectives and “triggering”, emotional terms — if only to help the OPM representative or the Administrative Judge understand the human side of the story.

Sincerely,

Robert R. McGill, Esquire

Federal and Postal Disability Retirement: Are Psychiatric Disabilities Denied More Readily?

I am often asked whether or not it is more difficult to get OPM Disability Retirement benefits based upon a psychiatric medical condition (e.g., PTSD, Major Depression, Anxiety, panic attacks, Bipolar Disorder, etc.).  Does the Office of Personnel Management deny a Federal Disability Retirement application which is based solely upon a psychiatric condition?  Should a FERS Disability Retirement application always include a physical condition?  The short and simple answer is an unequivocal “No”.

Let me provide a slightly more expanded answer:  (1)  In my experience, psychiatric disabilities present no greater obstacles than physical disabilities.  So long as we can prove, by a preponderance of the evidence, that the medical condition — physical or psychiatric — prevents one from performing the essential elements of one’s job, there really is no difference between the two.  (2)  Do not “add” a physical disability because you think that a psychiatric disability is “not enough”.  This would be a foolish approach.  Focus upon the primary medical conditions, whether physical or psychiatric, in proving your case.  (3)  Remember that OPM Disability Retirement often has other complex factors which come into play — accommodation issues; certain jobs are more easily shown to be “incompatible” with a psychiatric disability (for instance, Law Enforcement Personnel who have psychiatric disabilities obviously must have the mental acuity to perform the inherently dangerous aspects of the position); and remember that psychotropic medications, prescribed and necessary for daily functioning, often have side-effects which impact one’s ability to perform one’s job.

The point in all of this is that there really is no substantive difference between psychiatric disabilities and physical ones, anymore; the societal stigma of “psychiatric medical conditions” has largely disappeared, and the Office of Personnel Management — in my experience — treats both psychiatric disabilities and physical disabilities on an equal par.

Sincerely,

Robert R. McGill, Esquire