Tag Archives: misinterpretation or misapplication of OPM disability l

OPM Disability Retirement: The Case of Fibromyalgia

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Fibromyalgia is one of those medical conditions that the Office of Personnel Management systematically “targets” as a condition which is prima facie “suspect”. This is despite the fact that there are cases which implicitly “admonish” OPM from engaging in the type of arbitrary reasoning of denying a disability retirement application because they “believe” that “no objective medical evidence” has been submitted, or that the “pain” experienced (diffuse as it might be) is merely “subjective”, or that the chronicity of the pain merely “waxes and wanes”, and a host of multiple other unfounded reasonings. Yet, cases have already placed a clear boundary around such arbitrary and capricious reasonings.

A case in point, of course, is Vanieken-Ryals v. OPM, a U.S. Court of Appeals for the Federal Circuit case, decided on November 26, 2007.  In that case, it clearly circumscribes the fact that OPM can no longer make the argument that an Applicant’s Disability Retirement application contains “insufficient medical evidence” because of its lack of “objective medical evidence”.

This is because there is no statute or regulation which “imposes such a requirement” that “objective” medical evidence is required to prove disability.  As long as the treating doctor of the OPM Disability Retirement applicant utilizes “established diagnostic criteria” and applies modalities of treatment which are “consistent with ‘generally accepted professional standards'”, then the application is eligible for consideration. Further, the Court went on to state that it is “legal error for either agency (OPM or the MSPB) to reject submitted medical evidence as entitled to no probative weight at all solely because it lacks so-called ‘objective’ measures such as laboratory tests.”

Statues are passed for a reason: to be followed by agencies. Judges render decisions for a reason: for agencies to follow. Often, however, agencies lag behind statutes and judicial decisions. It is up the an applicant — and his or her attorney — to make sure that OPM follows the law.

Sincerely,

Robert R. McGill, Esquire

 

Federal OPM Disability Retirement: Be Discerning

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In many ways, there is too much information “out there” about anything and everything.  The area of Federal Disability Retirement Law under FERS & CSRS is no different (and, admittedly, the irony is that I may be adding to the compendium of information with my incessant blogs, articles, reflections, etc.).

The real problem, however, is not necessarily the quantity of information, but rather the quality — and for Federal and Postal employees who are attempting to understand all of the issues surrounding Federal Disability Retirement, it is often difficult to categorize and separate and distinguish between “good” information and “bad” information.

For instance, there is the local/district Human Resources personnel for an employee’s Agency.  Agency H.R. offices are made up of “people” — both good and bad, both competent and incompetent; both helpful and downright ornery.  Then, there is the Office of Personnel Management.  There are multiple internet sites, blogs, a plethora of lawyers (though, there are not that many lawyers who are versed in the area of Federal Disability Law).

The bottom-line issue is not one of “quantity” of information, but how to discern between “good” information and “bad” information.  Too often, a person will call me and tell me that “so-and-so told me that X occurs when you file for Federal Disability Retirement — is that true?”

My response as a Federal Disability attorney is of a standard nature:  I do not sit and argue or contradict some third person whom I have never met, and against a statement which may have been taken out of context.  Instead, I ask my caller, potential clients, and anyone and everyone who reads my writings, to look at the substance of what I write and say; review the consistency of what I have written, and make your own judgment:  Discern well by checking out the facts, and seeing if what others have said about me, or what I have said, rings true.  Be discerning.

Sincerely,

Robert R. McGill, Esquire
FERS Disability Retirement Attorney

 

FERS Disability Retirement: The First Denial

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Your Federal disability retirement application was well-prepared:  perhaps it was prepared with the help of an attorney; the medical documentation seemed solidly unequivocal; the doctor made the necessary connections between one’s medical conditions and the type of essential elements of one’s job; the packet, by all accounts, should have been approved, and by all expectations, the approval should have been reasonably expected.

Instead, you receive a letter stating that your disability retirement application was disapproved, and a “Discussion” section follows, explaining why the Office of Personnel Management denied your application.  Why did this happen?  There are multiple reasons why such a denial can occur:  the OPM specialist could be a person who lacks a clear understanding of the applicable laws governing disability retirement applications (more often than not, this is the case, and what you actually get in the so-called “Discussion” Section of the denial letter is merely a regurgitation of the statutory criteria for eligibility for disability retirement, without a recognition of the interpretation of such criteria by Federal Judges for the Federal Court of Appeals or by Administrative Judges from the Merit Systems Protection Board); it could be as simple as the OPM representative selectively choosing to read the medical reports and records, and disregarding or ignoring supportive portions of the medical records and reports; or it could be that additional medical reports and records need to be obtained in order to “shore up” the application.

In any event, whatever the reason for the denial, one should not panic.  It is merely one step in a long, administrative process.  The mere fact that OPM denies your disability retirement application does not mean that they are “right” in doing so; indeed, in my opinion, they are rarely right.  That is why one has the right to have it “reconsidered”, and the opportunity to make further legal arguments, and obtain further medical documentation in support of your claim.  And, beyond that, you have the right to file an appeal to the Merit Systems Protection Board — and beyond.  Never give up; always take it to the next step.  In most cases, it will prove that OPM was in error, and in fighting the denial, you will have secured some semblence of financial security for your future.

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

 

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

 

FERS Disability Retirement: Failing to follow “Reasonable Treatment”

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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

 

FERS Disability Retirement: Symptoms versus Diagnosis

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If FERS Disability Retirement were merely a matter of determining the proper diagnosis of a medical condition, and having a doctor ascribe a percentage rating of disability, then the process of a disability retirement application would substantively be altered, and perhaps there would be far fewer cases to adjudicate at the Merit Systems Protection Board level.  For, if the criteria were that ‘cut and dry’, there would be little for OPM and the applicant & the applicant’s lawyer to argue over.

However, it rarely is that ‘cut and dry’ — because the major battle is rarely over the diagnosis; it is rarely over an issue concerning a percentage ascription of disability; rather, it is over the symptoms manifested, the significance of such symptoms upon the type of work one does, and in the impact such symptoms have upon the essential elements of one’s job.

That is why descriptive terms are important in disability retirement law. It is not so important ‘what it is’, as opposed to ‘how it is characterized’.  From this perspective, it is important for a FERS Disability Retirement Attorney to be more of a poet than to be cold and analytical — although, the best approach would be to have a little bit of both.

Remember to always know the context — the applicant will not be standing in front of an OPM representative showing how terrible the applicant’s medical condition is; there will be no visual presentation; everything is based upon a narrative — the applicant’s statement of disability, the medical documentation, the legal memorandum of the attorney, etc.  Thus, it is all-important for the Federal Disability Attorney who represents a disability retirement applicant to have a good command of the English language.

Sincerely,

Robert R. McGill, Esquire

 

OPM Disability Retirement: The Purpose of Case Law Citation

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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