FERS Disability Retirement: Waiting Too Long

My approach to Federal Disability Retirement law is that there are very few, if any, mistakes made by the applicant which cannot be corrected, amended, or explained, especially where the essential ingredients of a “good” case are in existence: a supportive doctor; a position/duties which are incompatible with the type of disabling health conditions one suffers from, etc.

However, I receive telephone calls periodically where the individual simply has waited “too long”.  Thus, to clarify: If you’ve been denied twice by the Office of Personnel Management, and you have a Hearing before an Administrative Judge 3 days from today, then you have probably “waited too long” (although, if you can get a postponement, or suspension of the case, there may still be time).

If you’ve been denied by OPM and the Merit Systems Protection Board has already denied your case, then you have probably “waited too long”.  Or, if you have been denied by OPM and by the MSPB and by the Full Board, then you have probably “waited too long”.

I hope that I am getting the point across by overstating the case — while each individual must decide when it is the “right time” to get a lawyer to help in filing for disability retirement cases, and yes, while I take on cases at all stages of the process, the point is quite simple: It is better to have the expertise of an experienced attorney earlier, than later.  In most cases, that means at the very beginning of the process.

Sincerely,

Robert R. McGill, Esquire
Federal Disability Retirement Attorney

 

OPM Disability Retirement: A New Beginning

After representing so many Federal and Postal employees over these many years, there are stories which continue to sadden me; as with all professionals, I attempt to bifurcate my life, and not get “personally” involved with my cases.  To blur the lines between providing sound and effective legal advice, and getting “involved” in the personal tragedies of my clients, would certainly undermine the professional effectiveness needed in providing for my clients.  To a great extent, I am successful. Every now and then, however, I am informed of a tragedy — and it touches me. Perhaps that is a good thing; for one can become insensitive, or “de-sensitized” in a way that can be detrimental.

I try and explain to many people that getting Federal Disability Retirement benefits should never be a judgment upon one’s career — let alone one’s life. A career can span a lifetime, or it can extend for a couple of years (i.e., at least the 18 months of Federal Service that is needed to even qualify under FERS). However long, to come to a point in one’s career where it becomes necessary to acknowledge to one’s self that certain medical conditions are directly impacting one’s ability to perform the essential elements of the job — such an admission should never be interpreted to mean that such a circumstance has somehow devalued the worth of a person.

Human beings are complex entities, bundled up by personality, uniqueness, family, job, hobbies, thoughts — a compendium of a history of one’s life.  Note that I merely inserted the concept of “job” within a sequence of many facets.  And, indeed, one’s job is important — it takes us away from the many other bundles of our lives, and forces us to expend 8, 10, 12 or more hours per day, Monday thru Friday, and some weekends, too.  But that which takes up a large quantity of our time does not necessarily or logically result in the definitional essence of a human being; the fact that we spend a great deal of time in the bathroom does not mean that such an activity defines our “essence”.

“Worth” of a human being attaches to each of us, and is inseparable from each human being.  One’s job and career constitute only a small part of us.  Let’s keep that in mind, and in its proper perspective.

Sincerely,

Robert R. McGill, Esquire

 

OPM Disability Retirement: The Psychology of the Process

There is, of course, the “psychology” of the process of filing for disability retirement benefits.  The term itself (psychology, psychological) is all too often misused.  All that is meant in this context is that, at each stage of the process (the initial application stage; the Second, Reconsideration Stage; the Third, Merit Systems Protection Board Stage; the fourth & fifth stages of an appeal, either for a Petition for Full Review or an appeal to the Federal Circuit, or sequentially), the applicant should have a general idea of the level of people the Applicant is dealing with.

Thus, for example, at the initial stage of the process, one should not expect the OPM Representative to be fully conversant in the law; whereas, if the case gets to the Merit Systems Protection Board Stage, the OPM representative is fairly well-versed in multiple aspects of the laws governing disability retirement.  Additionally, the level of medical knowledge varies from one OPM representative to the next.

This is not to say that each stage of the process requires a greater level of intellectual input or information; nor does it mean that each stage should be “tailored” based upon the expected level of competence.  Rather, an awareness of what to expect, how to respond, and what level of intellectual responsiveness are all necessary ingredients in preparing and filing a successful disability retirement application. In short, it is important to know the “psychology” of it all.

Sincerely,

Robert R. McGill, Esquire

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

FERS Disability Retirement: Symptoms versus Diagnosis

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