Tag Archives: medical evidence

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

CSRS & FERS Disability Retirement: The Physician I

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Initial inquiries concerning filing for Federal and Postal disability retirement benefits often ask the following question: Do I have a doctor to whom I can refer the individual? This question often follows upon the unfortunate circumstance that the individual does not have a very supportive doctor, or has been under the “medical care” of an OWCP-referral doctor.  The answer is always an unequivocal:  No.  The reason:  The Merit Systems Protection Board is very clear about the issue — that in Federal Disability Retirement cases, a medical report is persuasive when written by a doctor who has a long-standing patient-doctor relationship; has had regular contact with the individual; has had clinical contact over a sufficient period of time, such that the doctor can, within reasonable medical probability, provide a rational basis for stating that the individual is no longer able to perform one or more of the essential elements of his or her job. Thus, even before considering taking a disability retirement, it is important for the individual to make a proper assessment as to whether or not one’s doctor is “supportive”; if not, it may be a good idea to think about switching doctors, and finding one who is supportive.

Sincerely,

Robert R. McGill, Esquire

Federal Disability Retirement & the Reconsideration Process

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In the process of applying for Federal Disability retirement under FERS or CSRS, it is the “hope and wish” of each applicant that it will smoothly sail through at the initial stage of the application. However, the reality of the process is that a certain percentage of applications get denied at the initial stage (Stage 1 of the process). It is both discouraging and befuddling to receive a letter from the Office of Personnel Management informing you that your disability retirement application has been “denied”.

You are now required to Request Reconsideration of your case within thirty (30) days of the date of denial, and you must submit additional medical evidence or other supporting documentation within 30 days of requesting such reconsideration (Stage II of the process). It is, indeed, a time of disappointment to receive a denial. It is all the more so when it is unclear as to the basis for the denial. Often, a denial letter will refer to the medical evidence without much commentary beyond acknowledging the submission of a medical report, then in the last paragraph, simply make a declarative statement that the medical evidence submitted “was insufficient” to show that you are disabled. Or, more often than not, the OPM Benefits Specialist will actually mis-state the law by claiming that you have “not shown that you are so disabled as to keep you from the workplace” (no such legal standard is required under disability retirement rules, regulations or case-law).

Whatever the reasons given, it is both discouraging and disheartening to receive a denial letter from OPM. However, it is important to calmly, systematically, and with pinpoint focus reply to the letter of denial — even if it doesn’t seem to make any sense. This is done most effectively by using all of the tools required in persuading eligibility and entitlement to disability retirement benefits: the law; the medical report; the medical records; rational and legal arguments –in short, the “nexus” needed to win.

Sincerely,

Robert R. McGill, Esquire

FERS Medical Retirement: Beyond the MSPB

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Not all cases that should be won, are won. No one can win 100% of the time; think about it — even the best Major League Baseball players strike out at least 2 out of every 3 at-bats. Most strike out every 3 out of 4 times. Fortunately, I am able to pass through a high percentage of my clients at Stages 1 or 2 of the Disability Retirement process, and that is how it should be.

Every now and again, however, a case must go to the Merit Systems Protection Board; and out of the small number that must get to that point, an even smaller number goes before an Administrative Judge who is clearly anti-employee, and ignores the law and sides with the Office of Personnel Management. Fortunately, most MSPB judges are fair and understand that disability retirement laws favor, for the most part, approval of disability retirement benefits. In those instances where, for whatever reason, a case has been denied at Stages 1 & 2, and the MSPB Judge completely ignores the strong and unequivocal testimony of the doctor, then there is still a good shot at winning the case at the 4th level — a Petition for Full Review.

Such a Stage must be approached by pointing out the legal deficiencies and, indeed, the Hearing Judge’s complete mis-application of the law. It must be done delicately and respectfully, however, because you are essentially asking that the Full Board (a panel of 3 Administrative Judges) reverse one of the Administrative Judges at the Merit Systems Protection Board — to declare that the Administrative Judge “erred” in applying the law. It is possible to do — but it must be done with care, respect, and technical expertise.

Sincerely,

Robert R. McGill, Esquire

 

Agencies Actions and the Federal Disability Retirement Application

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I often receive telephone calls from Federal and Postal employees worried about what their Supervisor will write in the SF 3112B (Supervisor’s Statement) — the lies, half-truths, and vindictive statements that some Supervisors will, for whatever reason, attempt to have that “last parting shot”.

Such acts by supervisors are, for the most part, and fortunately, the exception, and not the rule; but each time it happens, it is despicable to the exponential degree — especially in light of the context of attempting to harm a Federal or Postal employee who has a serious medical disability, and needs the financial security offered by disability retirement.

As a general rule, the best approach to take is to follow the rule of thumb of the wise man: Do not worry about those things over which you have no control; focus upon those things over which you do have control.  Remember that this is a medical disability retirement application — with the emphasis upon the term “medical”.

Having said that, a disability retirement application must first and foremost focus upon obtaining the most excellent medical report.  If this is accomplished, then in 99% of the cases, it will nullify and make irrelevant anything which the Supervisor puts down on the Supervisor’s Statement.

This is the best and wisest approach to take; do not waste your time, emotional energy, or any further part of your life worrying about a Supervisor who lacks the fundamental compassion to be honest and truthful about an individual who has shown years of loyalty to the Federal Service. He/she is not worth it.

Sincerely,

Robert R. McGill, Esquire

Federal Disability Retirement: Actions from Federal Government Agencies or the Postal Service

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I often receive telephone calls from Federal and Postal employees worried about what their Supervisor will write in the SF 3112B (Supervisor’s Statement) — the lies, half-truths, and vindictive statements that some Supervisors will, for whatever reason, attempt to have that “last parting shot”. Such acts by supervisors are, for the most part, and fortunately, the exception, and not the rule; but each time it happens, it is despicable to the exponential degree — especially in light of the context of attempting to harm a Federal or Postal employee who has a serious medical disability, and needs the financial security offered by disability retirement.

As a general rule, the best approach to take is to follow the rule of thumb of the wise man: Do not worry about those things over which you have no control; focus upon those things over which you do have control. Remember that this is a medical disability retirment — with the emphasis upon the term “medical”. Having said that, a disability retirement application must first and foremost focus upon obtaining the most excellent medical report. If this is accomplished, then in 99% of the cases, it will nullify and make irrelevant anything which the Supervisor puts down on the Supervisor’s Statement. This is the best and wisest approach to take; do not waste your time, emotional energy, or any further part of your life worrying about a Supervisor who lacks the fundamental compassion to be honest and truthful about an individual who has shown years of loyalty to the Federal Service. He/she is not worth it.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability retirement: End of Summer and Postal VER

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Summer is almost at an end. The Postal Service, through the auspices of the Office of Personnel Management, is offering Voluntary Early Retirement (VER). For many, this is a positive thing; the decision to take the VER should be a financial decision. An analysis comparing the monetary return should be made between what an employee would receive under the VER and under disability retirement; if the financial difference is great, then obviously the employee should consider filing for disability retirement after the VER has been approved.

Remember that the employee would have one (1) year to file for disability retirement benefits, after the individual has been separated from service. Steps should be taken now, however, before accepting/filing for the VER, to establish the medical condition and disability prior to separation from service. This can be done by discussing the medical condition with one’s treating doctor, before the VER is applied for. Such early steps will help ensure the success of a future filing for disability retirement benefits — because the employee must establish that the medical condition impacted one’s ability to perform the essential elements of one’s job prior to separation from Federal Service.

Sincerely,

Robert R. McGill, Esquire

Federal Disability Retirement: Further Comment on Vanieken-Ryals

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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”

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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 III

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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? In such a circumstance, the best argument that can be put forth is to show the Office of Personnel Management that the application submitted to the Social Security Administration is essentially identical with the application for Federal Disability Retirement benefits submitted with OPM; then, to make the argument by analogy that where two applications are essentially identical, and where the higher standard of eligibility required (“total disability” — per SSA) has resulted in an approval, then the law must mandate that a lower standard of eligibility required (disability from being able to perform one or more of the essential elements of one’s particular job — FERS & CSRS) be by analogy and by logical consistency, result in an approval.

In submitting this argument, it is often helpful to submit a copy of the application/questionnaire filled out for SSA, and point out the identical nature of the medical conditions claimed, along with proof of approval by SSA.  Finally, it is important to refer to particular case-law citations to reinforce such arguments — but, alas, as to this latter point, it is best to obtain the services of an attorney who is experienced in Federal Disability Retirement law.

Sincerely,

Robert R. McGill, Esquire