The recent case of Vanieken-Ryals v. OPM, U.S. Court of Appeals for the Federal Circuit, decided on November 26, 2007, cannot be overemphasized for its importance to the disability retirement process. It is, in my view, a landmark case which will greatly advance potential disability retirement applicants who base their disabilities upon psychiatric conditions. In representing my clients, I have repeatedly argued that the Office of Personnel Management’s insistence upon “objective medical evidence”, especially when it involves clients who suffer from psychiatric medical conditions (e.g., Major Depression, Anxiety, panic attacks, Bi-Polar Disorder, etc.) is not only unfair, but irrational. My past arguments were met with varying degrees of success, but the essential argument that I made over the years went something like this: Psychiatric disabilities by their inherent nature are “subjective”, because there is no diagnostic test which can objectively determine symptoms of psychiatric disabilities. Indeed, while there are multiple psychological tests which can be administered, the results are still based upon the subjective responses of the patient. Furthermore, a doctor’s clinical examination, long-term evaluation by a treating doctor, and the consistent assessment by one’s treating doctor, provide for the best and most ‘objective’ basis for a valid medical opinion. Further (my argument would often go), even physical disabilities (like a bulging disc) which can be ascertained by an MRI, cannot provide a conclusive basis to determine the extent of one’s pain or inability to perform certain tasks, for pain is by definition a “subjective” condition; there are, indeed, some who have bulging discs but have very little pain, and others who have a minimal bulging disc which completely debilitates the individual. These were rational arguments made, and while fairly persuasive when combined with case-law citations, the force of such arguments often depended upon the receptiveness of OPM’s representative or, at the Merit Systems Protection Board level, the receptiveness of the Administrative Judge.
With the opinion expressed by the Court in Vanieken-Ryals v. OPM, we no longer need to rely upon the arbitrary receptiveness of an individual, for we have a firm legal basis to counter the irrational basis that OPM routinely gives in their denials based upon an objective/subjective distinction.
The Court in Vanieken-Ryals made several important declarations in their opinion:
1. 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”, especially when the application is based upon psychiatric medical conditions. This, because there is no statute or regulation which “imposes such a requirement” that “objective” medical evidence is required to prove disability.
2. 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'”, then the application is eligible for consideration.
3. 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.”
Ultimately, for purposes of this article, which is (hopefully) read by many non-lawyers, the essence of the Vanieken-Ryals case is that it exponentially strengthens a disability retirement application based solely upon psychiatric medical disabilities. The case itself contains many other elements which provide for strong ammunition, when used wisely and with knowledge, for the disability retirement practitioner of law. It makes a strong and unequivocal statement that OPM’s and MSPB’s adherence to a rule which systematically demands for “objective” medical evidence and refuses to consider “subjective” medical evidence, is “arbitrary, capricious, and contrary to law.” This is indeed strong language which can be used as a sword to prevail in a disability retirement case.
Persistence in the pursuit of a client’s right and entitlement to disability retirement benefits is never a lost cause, and those who have hesitated from filing for disability retirement because they suffer from purely psychiatric medical disabilities, or from disabilities which are often harder to “objectively” justify (e.g., Fibromyalgia, Chronic Fatigue Syndrome, etc.) have a greater chance because of the bold legal opinion as expressed by the Court in Vanieken-Ryals.
This is a landmark case of incalculable importance and impact, which cannot be overemphasized. I have already cited the case on numerous occasions at the MSPB level, and the fact that it is a Court of Appeals decision makes it binding upon all MSPB judges. It gives greater hope for those who suffer from Psychiatric Disabilities alone, that their cases will not somehow be looked upon with less chance of approval than a person with a physical medical condition.
Other case updates: While Vanieken-Ryals was not a case that I represented, there are some case-updates from my own files which may be of some interest to my readers. All information provided is already in the public record of the written Opinion of the Judges, and there is no information revealed here that violates my attorney-client confidentiality. I wish that I could claim that I win all of my cases; I cannot. However, it is my firm belief that persistence in the pursuit of a client’s disability retirement application is never a lost cause, and here are three cases which reinforce my philosophy:
1. Tucker v. OPM (DA-844E-07-0314-I-1) The Office of Personnel Management kept denying Ms. Tucker’s disability retirement application. This case was finally won at the Hearing level. However, the Office of Personnel Management filed a Petition for Review. I responded with — among other arguments — the fact that the Office of Personnel Management failed to make any legal arguments showing that the Hearing Judge committed any legal errors. The Full Board rejected OPM’s Petition and affirmed the decision in my favor. No further appeals have been filed. I am happy for my client that after so many years, she will now get her disability retirement. Persistence in rebutting OPM’s attempt to reverse a Hearing Judge’s decision is never a lost cause.
2. Hartsock-Shaw v. OPM (PH-844E-06-0658-I-1) This one is the converse of the previous one, in that the Hearing Judge initially affirmed OPM’s denial of my client’s disability retirement application. I filed a Petition for Review, because I believed the Judge was wrong in not applying the Bruner Presumption in this case. The Full Board vacated the Initial Decision and Remanded the case back to the Hearing Judge, requiring further testimony on the issue of whether the Bruner Presumption should have been applied. We were able to factually prove that the circumstantial evidence necessitated the finding that my client was removed for her medical inability to perform her job, even though there was no final letter of removal issued by the Postal Service that we could find. The Judge sided with us, reversed her prior decision, and granted my client her disability retirement benefits. Persistence paid, and persistence in the pursuit of a disability retirement claim is never a lost cause.
3. Heiter v. OPM (AT-0831-07-0435-I-1) This is an interesting case. It has to do with a client who lost his disability retirement benefits because he tried to go to work for Federal Express. He was being punished for trying. One would think that a disability retirement annuitant would be commended and praised for trying — but, no, because he applied for, got the job with, and then quit, a job with Federal Express, he was deemed to have been ‘less than honest’ for having retired on disability from a Postal Job, and therefore OPM cut off his disability retirement benefits. We went to Hearing on the matter; the doctor testified unequivocally that he couldn’t do the job — neither the Federal Express one nor his prior Postal job — but he couldn’t fault his patient for having tried. OPM made a big deal about the fact that my client periodically went bowling. The Judge ruled in OPM’s favor. I filed a Petition for Full Review. The Board reversed the Initial Decision, and reinstated my client’s disability retirement annuity.
Here again, persistence pays, and persistence in pursuit of a disability claim is never a lost cause.
I am an attorney who specializes in representing Federal and Postal employees to obtain and retain disability retirement benefits. In pursuing one‘s entitlement to disability retirement benefits, one must always take the long-term perspective, and pursue that right with aggressiveness and persistence. It is an investment for one‘s future, and it is important to pursue your future investment aggressively, and to sustain your investment for a long time into the future.
For more information, contact me in one of these ways:
- View my website at www.FederalDisabilityLawyer.com
- Email me at federal.lawyer@yahoo.com
- Call me at 1-800-990-7932
Sincerely,
Robert R. McGill, Esquire
After nearly seventeen-17-years as a Civil Service Employee in the Federal System with an excellent performance record; I was forced to transfer to another DOD agency via the DOD PPP-Priority Placement Program-List. The new agency-NAF-Naval Air Facility-Command Andrews Air Force Base proved to be a PPP employee’s nightmare.
Within eighty-nine days my immediate supervisor was attempting to give me a Below Fully Successful Annual Rating; this was not LEGAL BECAUSE AN EMPLOYEE MUST WORK UNDER A SET OF PERFORMANCE STANDARDS FOR AT LEAST NINETY-90-DAYS BEFORE THEY CAN RECEIVE A RATING.
A little over four-4-months later my immediate supervisor forced me to accept the transfer to and title of Supervisory Accounting Technician. During the next few months I developed Position Descriptions and Sets of Job Elements which resulted in the promotion of all four-4-of the employees in my branch-a great deal of this work had to be done outside of working hours at the demand of my supervisor, her superiors. and Human Resources Personnel. Typically this type of work would be handled by the Human Resources Personnel with final approval coming from management. In this case the Position Descriptions and Performance Appraisals-Sets of Job Elements-were developed by me with final approval by senior management and implementation by Human Resources. From the time that the Position Descriptions and Performance Appraisals were approved by senior management and Human Resources my immediate supervisor was even more bitter toward me.
Four other areas which my supervisor was extremely bitter toward me about were:
1. My previous extensive experience with EEO-Equal Employment Opportunity-and its principles and regulations.
2. My previous extensive experience with DFAS-Defense Finance Accounting Service-and knowledge of DFAS regulations.
Shortly after I came to the agency-this agency was incorporated into the DFAS group. Instead of feeling bitter toward me-my immediate supervisor should have been glad that she had someone on-site who was familiar and experienced with DFAS.
3. My extensive knowledge of DFAS made me a source for answers-she considered me to be a threat to her authority.
4. Her constant harassment of me whenever I requested leave-despite the fact that I had ample leave to cover the request.
As a result of my immediate supervisor refusing to grant me sick leave I lost the service of two-2-doctors during the twenty-eight months that I was employed at her agency.
Even some of the senior military officers were afraid of my immediate supervisor. One of the young enlisted Marines was so frightened of my former immediate supervisor-that the poor man would make the same error every month on his reports by reversing the Flight Hours and Gallons of Fuel totals. A young Navy enlisted man was so frightened of my immediate supervisor that he phoned in his Flight Hours and the Gallons of Fuel totals from the middle of the Atlantic Ocean-to insure that she would not be angry about a delay in the report of the figures. My department had the highest turnover rate in the AGENCY; quite obviously there was definitely a problem which needed to be resolved.
The former immediate supervisor and management combined their efforts with Human Resources to force me out of the Navy without any JUSTIFICATION OR COMPENSATION. I have filed all of the required actions including:
MSPB-Initial and Appeal
EEOC-Initial and Appeal
OSC
OFO-Initial and Appeal
Each response is the same-Agency action affirmed.
It is rather difficult to explain this response when the employee had in her records:
1. Numerous Outstanding Performance Awards
2. Numerous Above Fully Satisfactory Performance Awards
3. Beneficial Suggestion Award
4. Employee of the Quarter
5. EEO-Equal Employment Opportunity-Handicapped Coordinator
Six-6-years.
6. Member of the EEO Committee for five-5-years.
7. Chosen by agency and DFAS management to be a member of the TQM-Total Quality Management-Team. Served on the TQM Team for nine-9-months and its findings were relayed to DFAS-Defense Finance Accounting Service.
8. Chosen by management to train a speech and hearing impaired employee on the operation of the STARS DB-Standard Accounting Reports System-Data Base-and prepare and design an information and training guide for this employee.
Instead of-Agency action affirmed-perhaps one of these other ruling agencies could have suggested that the involved activity be required to place the involved employee somewhere in DOD at her current grade level-GS-7 Step 10.
The former immediate supervisor even asked me early in my employment at her agency how I could possibly be a GS-7 Step 10 at my age? To keep the peace for all concerned I explained that the Step 10 was the combination of my normally granted WGI’s and the numerous QSI’s that I had earned. The immediate supervisor was displeased and considered me a personal threat from very early in my employment at her activity. I didn’t want her job-I detest supervisor jobs. To say the least she was being very UNREALISTIC FROM THE START.
By the following year’s appraisal the immediate supervisor was able to get away with giving me a Below Fully Satisfactory Rating for my Annual Appraisal despite the large quantity of money and work that I had saved her, human resources, and senior management. According to Human Resources and Senior Management I was supposed to be able to meet with the Administrative Officer once a week on the same day and at the same time-to review job opportunities that I might be able to apply for. Each time I attempted to attend one of these MANDATORY MEETINGS-my former immediate supervisor refused to let me leave the office to attend those MANDATORY MEETINGS OF WHICH SHE WAS FULLY AWARE AND INFORMED.
My failure to appear at these-MANDATORY MEETINGS WAS HELD AGAINST ME. Management personnel claimed that I had failed to attend the MANDATORY MEETINGS IN AN EFFORT TO POSSIBLY FIND ANOTHER JOB. It was omitted that my former immediate supervisor had refused to let me attend these meetings in all documents which were generated before, during, and after the REMOVAL. Management has to be realistic here; one of their own refused to allow permission to attend MANDATORY MEETINGS.
The doctor appointed by the Navy did not have any knowledge of Neurology or Epilepsy. My neurologist verified in a letter to the agency that stress can trigger seizures. It is no secret that my former supervisor had one of the worst reputations in the activity. If even some of the senior military officers were afraid of her she must have had quite an impression on people.
After my Forced Removal many customers would phone the office and ask for me by name. The ultimate insult came when my former supervisor heard a customer tell her over the phone: ” Miss Evcic was the only one who knew what was going on in that place. She could get anything done that we needed. ” If I was such a burden-why did the customers regret my departure? L. Evcic