Permanent Medical Retirement from Federal Employment: Post-Separation Evidence

OPM ignores the law.  Despite over a decade since the opinion expressed in Reilly v. OPM, Federal Circuit Court of Appeals, 571 F.3d 1372 (Fed. Cir. 2009), the U.S. Office of Personnel Management continues to dismiss the relevance of post-separation medical evidence in a Federal or Postal Disability Retirement application.

OPM will systematically deny cases with the following type of statement: “You doctor stated X.  However, the medical report was dated after your separation from Federal Service.  Therefore, you did not establish that you were medically disabled from performing your job while a Federal employee.”  Huh?

Three things stand out, of course: First, most medical conditions are progressive and degenerative in nature and do not appear on the very day a doctor examines a patient.

Second, the clear logical error of OPM’s argument is so blatant: X exists. X exists after Time-Y. Therefore, because X exists after Time-Y, X did not exist prior to Time-Y.  Or: I saw a man named Tom. I saw Tom today and did not see him yesterday.  Therefore, Tom was not born before I saw him today.  Absurd.

And third: OPM ignores the law as stated in Reilly, where post-separation medical evidence is clearly relevant if a proper nexus is established to a pre-separation time-frame.

Don’t let OPM’s illogical interpretation of the law defeat you.  Contact an attorney who specializes in Federal Disability Retirement, and beat them back in order to obtain the benefits you are entitled to.

Sincerely,

Robert R. McGill, Esquire

 

Postal and Federal Disability Retirement: Last Minute Filings

Waiting until the very last moment in order to file a Federal Disability Retirement application is often an inevitable reflection of the medical condition itself; whether because the thought and act of filing contributes to the exacerbation of one’s condition, or because the severity of the medical condition impedes and presents an obstacle to proceeding, are somewhat irrelevant in the end; whichever may be the case, the fact is that the admixture of medical conditions, Statute of Limitations, and the need to obtain Federal Disability Retirement benefits, do not cohere well, and something inevitably suffers as a consequence.  But the law is impervious to excuses of filing inaction (with some narrow and specific exceptions); and society’s view is that a limit must be imposed at some point.

Thus:  For filing a Federal Disability Retirement application through the U.S. Office of Personnel Management, whether the Federal or Postal employee is under FERS or CSRS, the Federal or Post Office employee must file the application for Federal Medical Retirement benefits within one (1) year of being separated from Federal service.  Waiting until the last minute can have some inherent and deleterious consequences, and failing to be attuned to them can come back to haunt one at a later date.

For example: Since one has waited until the last moment to file, once an OPM Disability Retirement application is filed, there will be little to no chance of amending the application (note:  “amending” is not synonymous with “supplementing”), as one no longer has the luxury of withdrawing a Federal Disability Retirement application, amending, and refiling; for, in the meantime, the Statute of Limitations has presumably come and passed.

Filing for Federal Disability Retirement benefits and waiting until the last possible moment is, unfortunately, a reality reflecting the often anxiety-filled state of affairs, both for the individual and the pressure to file on time; with that being said, it is nevertheless a reality which must be faced, and handled in the best possible manner under the given circumstances.

Sincerely,

Robert R. McGill, Esquire

 

OPM Disability Retirement: Agency's Power

I hear it in both the content of the question and the anxiousness in the voice of a potential client seeking representation to obtain Federal Disability Retirement benefits under FERS or CSRS:  Can the agency influence the application negatively?  Can they terminate me upon learning that I am seeking disability retirement?  Can they stop me from using my sick leave?  The power of the Federal Agency can be overwhelming, but there are limits as to what “influence” they can have over a Federal Disability Retirement application. 

Ultimately, good or bad, the Office of Personnel Management is the agency which makes the determination on an approval for all disability retirement applications, and as I have written in many articles in the past, the best way to “neutralize” the power of an agency is to prepare the medical aspect of the Federal Disability Retirement application in an excellent manner.  This is done, first and foremost, by garnering the support of the treating doctor, gathering the best medical evidence possible, etc.  Other actions of the agency — of attempting to place you on AWOL, or filing an adverse action during the process, can normally be stopped by an attorney experienced in Federal Disability Retirement laws.  Disability Retirement under FERS or CSRS is not just a matter of filling out forms; it is a matter of securing the future.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: Use of Medical Reports

People often ask me whether or not a certain type of medical report should or should not be used.  As with almost all such questions, the answer is, “It depends”.  On what?  On the content; in the manner it is written; and by whom.

This latter basis is often a determinative one.  For instance, should a medical report from a Chiropractor be used in an CSRS & FERS Disability Retirement case?  Let me answer this question in a circuitous manner — I handled an MSPB case years ago where I had no “medical” doctors testify, but I had two chiropractors testify (I needed both of them, not because two makes better than one, but merely because they treated my client in sequence over the relevant period of time).  To the great consternation of the OPM representative, we won the case.

Thus, chiropractors can provide valid medical opinions, and the MSPB has accepted the testimony of chiropractors — as well as therapists — standing alone, without the primary support of a medical doctor.  However, my customary approach in the utilization of therapists and chiropractors, as well as physicians’ assistants, nurses, etc., is that they are most effective as secondary support to a primary medical narrative from a medical doctor.

This will often present an interesting conundrum in that, often, chiropractors and therapists will write the more detailed, substantive, and interesting report than the medical doctor.  That is okay.  To use such reports as a piggy-back upon the short, concise and straightforward medical report is often the best way to use such valuable resources.

Sincerely,

Robert R. McGill, Esquire

Federal Disability Retirement: SSA Approval, Part II

In order for an SSA approval to have an impact upon a Federal disability retirement application, the Social Security Administration’s decision letter granting benefits must provide a detailed explanation as to the basis for the approval, delineating the medical basis, the medical conditions upon which the decision was made, etc.  Thereafter, the applicant can submit the decision letter, but this is where it is important to have an attorney provide the proper legal & foundational argument — to provide the contextual applicability.

The legal basis, to start with, is found in Trevan v. Office of Personnel Management, 69 F.3d 520, 526-27 (Fed. Cir. 1995), in which the Federal Circuit Court found that in making a determination of eligibility for disability retirement, the Board (and thus, by analogy, OPM) must consider an award of SSA disability benefits together with medical evidence provided by the appellant to OPM, and other evidence of disability.  This is when an attorney’s tools of “argument by analogy” and pointing out the significant contextual language in an SSA decision letter comes in handy.  Next:  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?

Sincerely,

Robert R. McGill, Esquire

Federal Disability Retirement: SSA Approval, Part I

Of interest is what to do when a Social Security filing for disability benefits has been approved prior to the FERS/CSRS disability retirement application being approved.  This is a rarity, and indeed, it should logically be that way:  for Social Security disability requires a higher standard of (essentially) “total disability”; while the criteria for approval under FERS/CSRS is that of an “inability to perform the essential elements” of a particular job — meaning, in essence, that an individual is no longer a good fit for a particular type of job, but could certainly be productive in some other capacity of employment.

The cases at the Merit System Protection Board which have addressed this issue have been fairly consistent.  An approval in and of itself will not necessarily help a FERS/CSRS application; as with the application process itself, the applicant has the preponderance of the evidence of proving the relevance of the approved Social Security filing.  I am often asked whether, in a denial of an SSA disability application, where the decision by the Social Security Administration states that, while SSA acknowledges that the applicant is unable to perform his or her current employment because of the medical condition, yet the applicant for SSA disability benefits is denied because he or she may engage in other productive employment — whether such a statement in the denial (that SSA acknowledges the applicant’s inability to perform his or her current job) should be forwarded to OPM.  My answer is that it should not be, because it is not relevant to OPM’s criteria for making a determination.

As to the two most important questions:  1.  If a Social Security Disability application is approved, what needs to be sent to OPM, and 2. If Social Security’s determination doesn’t provide the necessary language to be relevant for forwarding to OPM, what can take its place?  As to these two questions, I will be addressing each in a blog to be written in the very near future.

Sincerely,

Robert R. McGill, Esquire