Postal and Federal Disability Retirement: The Volume-based Application

A declaration of the sheer volume of medical evidence submitted is often an indicator of the basis for which a Federal Disability Retirement application was formulated; for, in the end, if reliance of the successful outcome of a Federal Disability Retirement application is expected based upon the longevity and extent of a medical condition, the chances of an initial approval may be somewhat compromised to begin with.

Volume can never replace content; and from the perspective of the U.S. Office of Personnel Management, there is often an underlying suspicion that receipt of a thousand pages of medical documentation indicates merely that volume of treatment is being substituted for the substantive content of meeting the required legal standards.

Much of medical notation and treatment records merely reflect a particular appointment’s mechanical applications — continuation of previous treatment plan; refill of prescriptions; standard positive or negative responses to particular questions; prospective treatment modalities; and, as supportive evidence attached to a substantive medical report, they can reinforce the satisfaction of the legal criteria of establishing the necessary nexus between one’s medical condition and the inability to perform the essential elements of one’s job.  But left as a replacement for the doctor’s explicit statement confirming such a nexus, it remains a hollow voice within an expansive but empty chamber.

One should never mistake the legal distinction between “primary” evidence and “supportive” evidence.  The former is meant to establish the nexus between one’s medical condition and the essential elements of one’s job; the latter is submitted to reinforce the former.  When one utilizes the former as the substitute for the latter, it is like the self-delusion that just because you are the best player on a pick-up team in your neighborhood, you are ready to enter into the world of professional sports.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Government Employees: Extensive Evidence

When first encountering the vastness of the sea, the young child pointed to it and said to his father with a breathless sense of wonderment and awe.  “It’s like a big swimming pool,” the child said.  “It won’t taste like one, though.  And do you see the waves?”  The boy stood in silence.

The mystery of the world, its infinite puzzlement, in contrast to man’s vain attempt to artificially recreate a semblance of its beauty, revealed itself to the child’s uncorrupted eyes.  Only a child whose first encounter with creation could see the true nature of being; the rest of us, compromised by age, cynicism and self-indulgence, would forever be blind to its breathless scope of beauty.

Such a slice of life story is meant to illustrate the distinction between substantive extensiveness, and a smaller version thereof, in preparing, formulating and filing for Federal Disability Retirement benefits under FERS or CSRS, from the U.S. Office of Personnel Management.  Volume of evidence (i.e., likened to “the ocean”) can be persuasive; yet, if it is merely an elaborate pool, then lack of substance may undermine its own efficacy.  On the other hand, a short but “to-the-point” medical report may be very effective, precisely because it is exactly what it was meant to be:  without much fluff, the doctor is unequivocal in his or her medical opinion.

The point throughout is that there is never a science in the compilation of proof in formulating an effective Federal Disability Retirement application.  Or, to put it another way:  don’t try to recreate something which cannot be copied; sometimes, the evidence is what it is, and how one presents the evidence will make all the difference.

Sincerely,

Robert R. McGill, Esquire

Postal and Federal Disability Retirement: Time for Comparison and Double-checking

Upon an initial denial of a Federal Disability Retirement application, the Federal or Postal employee has a right to Request Reconsideration of the denied Federal Disability Retirement application within thirty (30) days of the date of denial (the rules allow for a later date — 30 days from the date of receipt — but it is always advisable to utilize the date of the letter, as that date can obviously be verified).

If the Federal or Postal employee is denied a second time, then there is a right to an appeal to the U.S. Merit Systems Protection Board.  Again, the timeframe within which one must file an appeal to the MSPB is identical to that which one has at the Reconsideration Stage of the process — 30 days, or the later one of receipt of date of the letter.

Often, when one reads through a denial from the U.S. Office of Personnel Management, there is a growing suspicion that OPM has either ignored, overlooked, or otherwise has never received for review, important and significant documentation, whether medical or otherwise, which should have been part of the file.

Once an appeal is filed with the U.S. Merit Systems Protection Board, the U.S. Office of Personnel Management is mandated to forward a complete copy of the file to the “Appellant” (the one who is filing the appeal) and to the attorney for the Appellant.  Once this file is received, it is important to “compare notes”, and to determine whether the “missing piece of information” is indeed missing, and may need to be re-submitted.

That is the time for comparing notes (“files”, in this case), and double-checking whether OPM has all of the information it should have.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Workers: Different Benefits

In preparing, formulating and filing a Federal Disability Retirement application under FERS and CSRS, it is often thought that medical documentation obtained for one venue of eligible benefits (e.g., Worker’s Compensation or SSDI, or VA benefits) can be utilized in the pursuit of FERS or CSRS Disability Retirement benefits.  However, because the applicable criteria which each Federal program or benefit is different, one should always take care before submitting the same, or similar, medical documentation, for multiple and varied applications.  

It is not so much that such documentation cannot be deemed relevant for multiple purposes; rather, relevance is a relative concept, and while X can be relevant for A & B, it may only meet the statutory criteria for A but not for B.

Further, every answer to a question depends upon what the question is.  For FERS & CSRS Disability Retirement, the question always involves whether or not a Federal or Postal employee’s medical condition(s) prevents one from performing one or more of the essential elements of one’s job.  The question involving SSDI, VA Benefits or OWCP is a completely different one.  

However, a particular medical document may in fact cross the boundaries of relevance and address a specific issue or aspect of a question, and for that limited purposes, may in fact be “relevant enough” to be submitted.  Such submissions crossing boundaries, however, must be done with care and deliberation; for, while it may answer one aspect of a Federal Disability Retirement application, it could potentially raise multiple other questions which might have been best to leave alone.

Sincerely,

Robert R. McGill, Esquire

Medical Retirement Benefits for US Government Employees: Inconsistencies

While the legal standard of “preponderance of the evidence” is the statutorily mandated criteria to be applied as the burden of proof in a Federal Disability Retirement application under FERS or CSRS, the question which needs to be asked is:  Assuming that a Federal Disability Retirement application under FERS or CSRS contains sufficient medical documentation to meet the legal criteria, what is it that would undermine the application and result in a denial of the Federal Disability Retirement application?  

The overwhelming pattern of that which defeats a Federal Disability Retirement application from being approved — at any stage of the process — is the revelation of inconsistencies between various aspects of the application.  

Thus, whether it is the internal inconsistency of medical records versus the medical narrative report which the doctor has prepared; the apparent inconsistency between a Supervisor’s Statement and the Applicant’s Statement of Disability; or the potentially exaggerated inconsistency between the Applicant’s Statement of Disability and the Medical Narrative Report(s) — such are the fodder which the Office of Personnel Management is looking for in order to provide a substantiating and justifying basis to deny a Federal Disability Retirement application under FERS or CSRS.  

One must understand, however, that many inconsistencies are merely “apparent”, and can be easily explained — if needed to be explained at all.  Thus, for example, notations in the medical records/office notes where the treating doctor has annotated numerous instances of “improvement” from a previous office visit, are merely apparently inconsistent with a conclusion that a person can no longer perform one or more of the essential elements of one’s job.  

An exaggerated Applicant’s Statement, however, which overstates one’s medical conditions beyond what the doctor is willing to state, can be a more difficult inconsistency to overcome and correct.  It is important to always recognize the difference between apparent, inherent, and natural inconsistencies, and to understand that some inconsistencies need to be “left alone”, while others may need to be attended to.

Sincerely,

Robert R. McGill, Esquire

Federal Employee Medical Retirement: Medical Records Alone

Medical records can provide valuable information, and as a tool in getting a Federal Disability Retirement application under FERS or CSRS approved, it should be selectively submitted.  Can it replace a medical narrative report from a treating doctor?  Normally, a narrative report from one’s treating doctor — whether a specialist, a family doctor, a psychiatrist, etc. — is invaluable in preparing, formulating, and submitting a Federal Disability Retirement application under FERS or CSRS.  The combination of the two, of course, is unequivocally the best-case scenario:  of a medical narrative report supported by, and in consonance with, the office notes, surgical notes, treatment notes, etc.

However, it is not impossible to get a Federal Disability Retirement application under FERS or CSRS approved based upon medical records alone.  If that is the only course of action left — with the alternative choices being of walking away without filing for Disability Retirement benefits — then a Federal Disability Retirement application based upon one’s medical records alone can be successfully argued, but it must be done with meticulous care, and squeezing every notation and attribution of annotations to their fullest relevance, extent and extrapolating significance.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Office Notes (Continued…)

The Office of Personnel Management has every right to establish a consistency of medical treatment and opinions rendered on the part of the doctor, the specialist, the medical facility, etc.  One of the reasons why Federal Disability Retirement benefits are (in great part) determined by the opinion of the “treating doctor”, as opposed to a determination made by a medical doctor who makes such disability determinations but is not the applicant’s “treating doctor”, is that such a determination (in the eyes of Federal Disability Retirement laws, statutes, MSPB case laws, etc.) can best be rendered by a medical specialist who has a long-standing relationship with the patient/applicant, over a long period of time, to determine the extent, severity, chronicity, etc., of the medical condition claimed.  

With this in mind, there often arises a conflict of sorts:  On the one hand, most people who are attending to their medical needs, are not thinking in terms of “getting Federal Disability Retirement benefits” during the time of treatment.  The critical point of when the line becomes drawn, where treatment & chronicity begin to conflict; or where, despite every attempt by the doctor to prescribe treatment modalities, there appears to be a medical condition which is “intractable”, is often a difficult one to determine.  In most cases, the office/treatment notes will reveal the line, which may come about gradually.  At other times, one may have a doctor who thinks that he or she can successfully treat any and all conditions, and reflects such a “positive” outlook in every office notation.  This is often not helpful, when it comes time to filing for Federal Disability Retirement benefits under FERS or CSRS.  To counter this, a frank discussion with the doctor at some point may become necessary.

Sincerely,

Robert R. McGill, Esquire