OPM FERS & CSRS Disability Retirement: Answering OPM’s Concerns at the Reconsideration Stage

Beyond making sure that you have enough time for your treating doctors to provide you with updated medical documentation at the Reconsideration Stage of the process, an applicant must take care in addressing the the underlying concerns expressed by the Office of Personnel Management.

Unfortunately, this is a stage in the process which will probably require an attorney who is knowledgeable in the area of Federal Disability Retirement law. Why? Because the Specialist who denies an application for disability retirement will often provide a “laundry-list” of purported evidence which the Specialist claims would be “helpful” in proving your case. The laundry list provided is often a mis-statement of the law. It is up the the attorney to point out to the Office of Personnel Management what the correct statement of the law is; at the same time, however, it is important to “read between the lines” of a denial letter, and address some of the underlying “missing links” which provided the basis for the denial.

This is where the assistance of an attorney can be crucial. For it is the job of a disability retirement attorney at the Reconsideration Stage to do three things: (1) point out the correct law, (2) provide updated medical documentation to address the concerns of OPM in the denial letter, and (3) correct any errors that the applicant made in the initial stage prior to having contacted a disability retirement attorney.

Sincerely,

Robert R. McGill, Esquire

In a Small Town, Last Part V: Postscript (You may want to read Parts I-IV)

Once, Tony brought a puppy mongrel; it had white spots upon a greenish-brown undercoat of fur, a tail that curved unnaturally and defectively, as if the curvature of the extended spine had snapped in half; and a coat that was matted around the hind legs and bottom area, as if the sweat glands of the poor and pitiful creature coagulated in one-half of its body, drenching his private parts, his hind quarters and his tail in a pervasive stench of musty sweat, urine and a mixture of fungus-like pallor. Tony brought it in a cardboard box, and the creature had already performed some unsightly act within its confinement, and the sour odor followed him into the restaurant. But, inasmuch as the doors of the Corner Pancake House had not yet officially opened to the public, no one seemed to notice; certainly, not Judy.

She looked serenely upon the pitiable creature.

Tony half-threw and half-flung the box onto the counter, and one could almost see the thickness of the stench push its way into the air as dog, box and soiled matter were shaken and jumbled to become a stew-like admixture. “Ya want-im?” Tony growled.

“Well, I…” Judy began to stammer, but before she could finish, her boss had already turned around and started for the kitchen.

She went to the box and peered over the cardboard wall, into the private quarters of a dog that sat in its own mess. The puppy looked at her. Its eyes told her that he was ashamed; of what, the creature knew not; but perhaps from the tone, the voices, the disdain; for within its short lifespan, the puppy knew of its own ugliness. Creatures great and small; of the magnitude of man, to the lowliest of all; lack of love can be felt by all, if not understood. For one may even conclude that hell is the negation of love; and, indeed, such would be an eternal punishment, unendurable; to be in a pit of void; of distance; never feeling the embrace of love. In the cramped space of the box, its tail attempted to wag. It was a broken tail; its curvature was supposed to extend gracefully to reveal the elongation of its spine; but instead, it abruptly broke unnaturally upward and to its left, so that it had the effect of a bent antennae, and in wagging, it knocked violently and loudly against the side of the box in a circular, counter-clockwise movement, with each wag picking up a bit of soil and urine and splattering a spot in every direction. Judy gave a slight gasp, and put two fingers up to her lips; it was to either stop herself from crying, or hold a laugh; for to laugh at such a creature would have been cruel; yet, not to laugh would have been horribly unnatural. For, indeed, the poor creature was a sight to behold, to pity, to hold at a nose’s distance, yet at the same time to love.

She shook her head. “Yes, Tony!” Judy shouted as he entered the double-doors of the kitchen. “I’ll take him!”

Tony grunted some response, but she could not make out what he said. For the remainder of the day, the dog was kept in the box in the storage room behind the kitchen; multiple employees (those high school girls whose apprenticeship into life’s harsh realities were dependent upon the charitable honorarium of Tony) peered as they entered the stockroom, wrinkled their noses at the repulsively foreign odor, then quickly exited and left the whimpers behind. For in this world where childhood is shortened, where girls become women at earlier ages; where a pause to meditate or become “philosophical” merely means that one has dawdled to allow others to get ahead; an ugly puppy is a worthless entity. An ugly puppy that smells is a needless distraction. An ugly puppy who smells, and who is defective, is a waste of one’s self-centered time. For as man’s life is no longer viewed as just lower than angels; no, the poetry of past eras has been lost; there was a time when the magnificence of man was beheld upon a pedestal with wonderment; but the Darwinian view knocked him from that awe-stricken sphere, sending him spiraling downwards, and so poetry, heroism, and all that was held to be honorable, came tumbling down.

From a very early age, Colleen loved to have her younger sister, Judy, brush her hair. It was a bond of love between them; younger sister would brush older sister’s hair with a large hair brush each night before bedtime; and sometimes Judy would do it until her arm would cramp with pain; but she didn’t mind, because she knew how much Colleen loved the feel of the soft stroke massaging her scalp, and running through the fine strands of hair, repeatedly, with loving care. This same love, Colleen transferred upon Giggles. They called this ugly mutt that, because of the love the two sisters shared; of memories born with a teleology of love; where first causes formed from love; where final causes formed out of love; and from their happiness, they recognized the bond of laughter; and, indeed, upon bringing the unsightly cur home, Colleen began to giggle, putting her hand over her mouth, until the giggling erupted into uncontrollable trembles of delight, and the two of them rolled on the carpet beside the box, and from the floor, one could view the angular antennae wagging sheepishly from within the cardboard penitentiary; and from that moment, his name was Giggles. And even that ugly mutt, for the first time in its life, didn’t mind the laughter of the two; for the laughter was no longer of disdain, but born of love.

Judy gave strict instructions. Once in the morning, twice in the afternoon, Colleen was to take Giggles for a walk through the garden and grassy knoll just behind the apartment complex. She was to speak to no one. She was to walk the exact same route, which, timed with precision, took 7 ½ minutes. Then, back to the apartment. Colleen would follow such instructions without wavering from strict adherence to simple, firm instructions. She was good about that.

But love has a funny way of transcending strict adherence, especially where extension beyond the perimeters of instructions did not constitute a violation; rather, since no restrictions forbade such extension, and no explicit statements condemned her actions; when she came back into the apartment, she would use an old hairbrush that she had kept as a memento of their earlier days, when Mom and Dad were still within the perimeter of her life, and she would stroke the dog – long, patient strokes, from the top of its head to the end of its bent antennae; short strokes down its hind quarters; soft strokes to its underbelly; careful strokes from its chin to its chest; three times a day; a hundred times per session. Gradually, whether by the transference of its bodily oils from its hind quarters to other areas of its body; thereby spreading evenly throughout its body, or perhaps from the scintillating disturbance by the constant brushing of glands that were suddenly awakened to function, the color of its coat began to be transformed; and as puppy grew into a mature dog, its unsightly features began to turn into a shiny, golden coat of majesty. And beyond, for the bent antennae – that unnatural angular extension that presented a crooked sight of distortion – gradually began to straighten.

There is no other way to put it: Giggles grew up to be a beautiful dog.

Now, years later, when Tony saw Judy and Colleen walking one day in the Town Center, he saw this majestic creature, and murmured to himself, “Well, I’ll be – ” A tear welled up, and almost crested for public viewing; but Tony was too quick for that. No one saw the sniffle; no one saw the tear that was almost shed. Instead, he turned away. For he knew that such beauty could only be born of love; that such a dog could only – ah, but indeed, such thoughts are rather insignificant. For it matters not whether he knew such things; more importantly, Tony knew that, from the very beginning, it would take the love of Judy and Colleen to care for the pitiful creature. Tony knew that he could never come to love such a creature; and perhaps he saw in the unsightly mutt a reflection of himself; but he had the wisdom to turn to the someone who could provide the necessary love.

As for the dog itself, the real question is: was it the brushing, or was it the love? Does love transform? Or, as the Darwinians and materialists insist, is there no such transcendent essence; is it merely a combination of chemical and biological interactions which produce a “feeling”, and nothing more? Or is there that which we term “love” – an essence of humanity, transcending human emotion or feeling, and that which exceeds the collective workings of the biological entity called Man? Are there essences and existences, the true qualitative Being which cannot be defined, embraced, explained or encapsulated by mere words alone? Can we capture everything around us by the use of words? Is Wittgenstein right that everything is merely a language game, but that our language games are self-contained, and do not correspond to the Being-ness of the world we inhabit? Is love nothing more than a ruse?

And yet, sometime, the Reader may want to come down to the Town Center where Judy, Colleen and Giggles often walk on Sunday afternoons. They will skip, laugh, giggle, pause and hug each other, and the creature who, but for the love of two sisters, would have died a lonely and abandoned death. Ah, but let us also remind ourselves – but for the love of Tony.

FERS & CSRS Disability Retirement: OPM’s Methodology II

When the Office of Personnel Management approves an OPM disability retirement application, as I stated in the previous article (OPM’s Methodology), they will normally choose to approve it based upon only one of the listed disabilities. This is because, from OPM’s viewpoint, if the applicant lists multiple medical disabilities, once OPM reaches any one of the listed disabilities and finds that one of them is a basis for an approval, there is no further need for OPM to review the remaining medical conditions.

This methodology requires that future applicants consider the consequences of such a method: it is essential that the applicant base a disability retirement application upon only essential, significant medical conditions, normally best to list them in the order of significance, and further, to document a case in the order of severity.

While I have not heard of a disability retirement application being approved based upon a non-essential, minor medical condition, it is wise not to rely upon the off-chance that OPM might base an approval upon a medical condition that is somewhat “thrown in” as an afterthought, into the applicant’s statement of disability. In other words, it is not a good idea to “throw in the kitchen sink” at the last moment, thinking that by multiplying the quantity of medical conditions listed, that OPM will see how “serious” one’s medical condition is. Remember, it is not the totality of many medical conditions that is important; rather, it is the list, however small, of those medical conditions that prevent one from performing one or more of the essential elements of one’s job.

Sincerely,
Robert R. McGill, Esquire

FERS & CSRS Disability Retirement: OPM's Methodology

When the Office of Personnel Management (OPM) approves a federal disability retirement application, a separate page from the approval letter will often be attached, which states the medical basis upon which the disability retirement application was approved. The separate page will often state something to the effect of: “You submitted an application for disability retirement based upon medical conditions, A, B, C & D; however, your application was approved for medical condition B only.”

The concern here, of course, is that if you are later selected to answer an OPM Medical Questionnaire asking you to re-establish your medical disability for continuation of your disability annuity some years later, that you make certain that you answer such a Medical Questionnaire based upon that very medical condition upon which you were approved. This is obviously important. Some have questioned whether or not you can appeal the approval letter based upon the fact that you believe OPM should have approved you based upon a different medical condition. In my view, this is not an appealable issue, and if you question OPM as to whether they should have considered you disabled based upon another medical condition, you may be in greater danger by OPM reversing themselves based upon a re-review of your case. It is best to leave “well enough alone”. Accept the approval letter based upon the identified medical condition, and inform your treating doctor that you may need his input in the future — to address that very medical condition for which you were approved.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Clarification of Issues for FERS & CSRS Employees

In moderating the Martindale-Hubbell Message Board for Federal Disability Retirement Issues, two areas of law need clarification for those out there contemplating filing for Federal Disability Retirement under FERS or CSRS: First, the issue of whether a potential applicant needs to wait to be separated from Federal Service in order to obtain the “Bruner Presumption“, before filing for disability retirement.

The short answer is an unequivocal, “No”. To wait for an agency hoping that they will separate you for your medical inability to perform your job, is like waiting for your rich uncle to die and leave you an inheritance: It may never happen, and even if it does, it may not be worth it. While the Bruner Presumption is a nice additional weapon to have in arguing for an approval, it is not a necessary element.

The most important element in an OPM disability retirement case is to have a supportive doctor. Application of the Bruner Presumption — a recognition by the Agency that they cannot accommodate you, and further, that you cannot perform your job as a result of your medical condition, while a weapon in arguing for an approval to OPM, is not necessary in most cases. The point is to make sure your supporting medical documentation is strong, thereby negating the need for the Bruner Presumption.

Further, another common confusion which people have is what it means to be “separated from service”. The Statute of Limitations in Federal Disability Retirement cases is 1 year from the date a Federal Employee is separated from Federal Service. The 1-year does NOT begin when a person is on LWOP, or when a person is on FMLA, or any other reason. The 1-year begins when a person is officially terminated, separated, or taken off of the rolls of Federal Service, or when a person resigns from the Federal Service. It is 1 year from that date that a person must file for Federal disability retirement benefits, or you lose your right forever to do so.

Second, and finally (at least for this particular Blog piece), with respect to the 80% rule — where a person can earn income up to 80% of what one’s former Federal job currently pays: this is in addition to the disability retirement annity that a person receives.

Think about it, and it is logical: disability annuity is not “earned income”; the 80% rule applies only to “earned income”. Thus, for example, a person who was making $60,000 at a Federal job, who goes out on disability retirement, would get $36,000 the first year under FERS (60%), and $24,000 per year every year thereafter (40%). At the same time, that person can go out and make up to $48,000 per year (80% of $60,000), with that amount going up slightly each year (assuming that the payscale in the Federal system goes up each year for that same pay and grade). I hope this clarifies some of the issues that may have given rise to some confusion.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Situational Disability II

To reiterate: Situational disability can be an issue which can defeat a disability retirement application, precisely because OPM (and if it gets to the MSPB level, the Administrative Judge) can conclude that the Psychiatric disability in question originates and results in response to the hostile workplace environment.

These three concepts are important to understand — originate, result in, and result “in response to”. A psychiatric condition can originate from a hostile work environment, but as long as the medical condition then pervades beyond the work environment and impacts a person’s life through and through, then that alone does not constitute situational disability, because while it may have originated from A, it is not limited to A.

The second concept — results in — must be seen in the context of the condition of the psychiatric disability. Thus, does the (for example) Major Depression or anxiety result solely from the work environment, or does one experience the symptoms while at home, even while away from the work environment?

And thirdly, does the individual experience the symptoms of the psychiatric condition “in response to” his or her exposure to the work environment, or are the symptoms all-pervasive: i.e., throughout all aspects of the person’s life?

To differentiate these three concepts is important in avoiding the pitfalls of situational disability, and in helping to prepare a Psychiatrist in either preparing a medical narrative report, or in his or her testimony before an Administrative Judge at the Merit Systems Protection Board.

Sincerely,

Robert R. McGill, Esquire