OPM Disability Retirement: The Proper Approach

Some believe that, when formulating and compiling a disability retirement application, that quantity of supporting documentation will win the day — all medical reports, records, statements from friends, family, co-workers, etc.  Sometimes, however, it is better to refrain from providing everything all at once; for, if a determination is made that there is sufficient documentation to prevail in a disability retirement application, it is sometimes the wiser course to restrain the natural inclination to bombard the Office of Personnel Management with all of the available documentation.  This is merely a strategic bit of advice; yet, in practical terms, inasmuch as every disability retirement case has the potential to be denied at the First Stage, and OPM would in that event be requesting additional supporting documentation, it is often a good idea to “withhold” and “keep back” a secondary source of supporting documentation — but only if the primary source of supporting documentation is confidently adequate to win at the first stage.  It is a discretionary method of approaching the compiling of data and documentation at the first stage — a decision which should be made with wise counsel.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: Is there a higher standard of proof for Psychiatric Disabilities?

I am attempting to address the issue of Psychiatric medical disabilities in the context of filing for Federal Disability Retirement benefits under FERS & CSRS, by addressing the issue from various perspectives and angles, in an effort to inform the reader in different ways.  Major Depression, Generalized Anxiety Disorder, panic attacks, Bipolar Disorder — each possess unique traits, characteristics, and symptomatologies and manifestations exhibited in ways specific to the psychiatric condition. 

What is often the case is that, while the Psychiatrist is the medical doctor who is the “expert” on the Psychiatric condition, it is often the psychologist (the “Ph.D”), the Therapist, the Licensed Clinical Social Worker, etc. who has the “personalized” knowledge of the patient, who can provide the descriptive emotional impact, and the specific adjectives which can properly be formulated to reveal and “prove” the impact upon one’s inability to perform the essential elements of one’s job. 

Often, the Psychiatrist is merely the “medication manager” — the prescriber of the psychotropic medications.  Thus, in proving a Federal Disability Retirement case by a preponderance of the evidence, it is often necessary to have both the Therapist, as well as the Psychiatrist, in a joint effort to meet the standard of proof.  Is there a higher standard of proof in a Psychiatric medical condition?  To some extent, the answer is yes — but this is only natural, inasmuch as it requires “more” to have people fully understand the nature, extent, and impact of what it means to have a psychiatric medical condition.  For, at its very essence, who among us can truly understand what it means to be overwhelmed by a psychiatric medical condition?  Only words — descriptive adjectives and emotive-concepts, can draw us closer to having at least some rudimentary understanding.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: The Process

The importance of the “process” cannot be overstated in the filing of Federal Disability Retirement benefits.  It is the “coordination” of all of the various elements involved:  the Medical Narrative Report; the proper legal citations to refer to; the relevance of which medical documents to use; streamlining the documentation; the orderly listing of the medical conditions; how the medical conditions should be described; the narrative description of the impact and nexus between the medical condition and the job description; how to deal with accommodation issues; how to preemptively minimize any adverse impact from an “unfriendly” Supervisor’s Statement; preparing for the “long haul” — the potential denial, the denial at the Reconsideration Stage, and onward to the Merit Systems Protection Board — thus, preparing the case not only for the First Stage, but for any future stages of the process; how to deal properly and intelligently with specific medical conditions which may require a different “tweaking” of the application (i.e., medical conditions such as Fibromyalgia, Chronic Fatigue Syndrome, Bipolar Disorder, panic attacks, Multiple Chemical Sensitivity cases, etc.); the “do’s and don’t’s” of describing certain medical conditions.  These are only some of the issues which must be dealt with, coordinated, and thoughtfully constructed in preparing for a Federal Disability Retirement case.  

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Additional Comment on Medical Documentation

There are two (2) fundamental reasons why SF 3112C (Physician’s Statement) “doesn’t work” for physicians:  First, it is a government “form”.  It requests of a doctor to mechanically engage in the very performance of a duty which all doctors (generally speaking) hate:  writing up a report.  It does not provide for a context; it does not attempt to simplify the process for the doctor.  Second, for any doctor, it is an unappealing request.  To shove a government form which is written in fine print, and ask him to “follow the directions” is something all doctors (again, generally speaking) hate to do.  What I have found to be much more effective, is to provide a context and background — an “explanation” — to the doctor, concerning the medical disability retirement process.  That is one of the primary reasons why I never have my clients sign or submit an SF 3112C.  Aside from the danger of allowing for the blind release of any and all medical information to the Agency, and ultimately to the Office of Personnel Management when one signs the 3112C, it is simply not an effective means by which to obtain the necessary medical narrative report from the treating doctor.  To obtain an effective narrative report, it is important to have an attorney make a proper and thorough request.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement Cases: Presenting the Case to OPM

Fortunately, most of my cases which are submitted before the Office of Personnel Management at the Initial Stage are approved. It is important to step back and understand, first and foremost, how the approval/disapproval process works. Remember that the submission to the Office of Personnel Management is a “paper submission”, and as with any bureaucratic presentation, it is important to make sure that it is neat, understandable, and “presentable.” You want to make your particular submission stand out from the thousands which are submitted. Neatness and streamling accounts for much. Merely gathering up a thousand pages of medical documentation and hoping that the sheer volume and weight of the medical records will be proportionate to the seriousness which the OPM representative will view your case, is a foolhardy approach.

I attempt to streamline the case for the OPM representative, by annotating, identifying the medical documentation, explaining the relevance of the documentation, and identifying both statutory and case-law citations which are relevant in supporting the fundamental basis for the disability retirement application. It is important to make a proper presentation. It makes the life of the OPM Representative that much easier, and if the OPM Representative can review the application, read the synopsis, clearly understand the relevance of the medical documentation, be able to analyze the applicant’s statement and do it almost effortlessly, then one is more often than not rewarded with an approval, rather than the dreaded “denial letter”.

Sincerely,

Robert R. McGill, Esquire

Federal Disability Retirement: Getting the Bruner Presumption

If an individual is successful in persuading the Agency to remove him or her for his/her medical inability to perform the job, then the entitlement to what is coined as the “Bruner Presumption” is obtained. This is a great advantage, but one which is often misunderstood.

Remember that, under Bruner v. Office of Personnel Management, 996 F.2d 290 (Fed. Cir. 1993), when an individual is accorded the Bruner Presumption because of being removed for one’s medical inability to perform one’s job, this merely means that the “burden of production” shifts to the Office of Personnel Management, who must disprove your entitlement to disability retirement. However, the initial burden of proving by a preponderance of the evidence must still be met: i.e., one must still submit sufficient medical evidence to show that one was or is unable to perform the essential elements of one’s job.

This point should be obvious: for the Agency itself would never have separated an individual unless there was medical evidence to show that the individual could no longer perform the job. Thus, the very medical evidence which supported and justified the Agency’s action, is the same medical evidence which can be used to meet the initial burden of proof with OPM. The key is that, after this burden is met, then OPM has the harder burden of disproving that which the applicant has met. This is the great advantage of the Bruner Presumption.

Sincerely,
Robert R. McGill, Esquire

Physician’s Statement, SF 3112C, for FERS & CSRS Disability Retirement

Instead of signing the SF 3112C (Physician’s Statement), in representing my clients to obtain disability retirement, I write a 4 – 5 page letter directly to the client’s treating physicians to obtain a current medical report. Generally speaking, I advise my clients not to sign the SF 3112C, because it is essentially a general release of medical information which releases any and all medical records to the Agency’s Human Resources designee.

There is no reason to release all of your medical information — especially such information which is private, which is irrelevant to the medical disabilities which are specifically described and identified as the basis of your disability retirement application in your applicant’s statement of disability, and which do not impact your ability or inability to perform you job. Indeed, while the Agency will often insist upon the signature of the 3112C as being “required”, this is simply not true: Look at SF 3112E(8)(d) (Disability Retirement Application Checklist), which states: “SF 3112C, Physician’s Statement (or equivalent).” This shows that signature of the SF 3112C is not required — if you go out and obtain the medical records and reports yourself, and file the supporting medical documentation, then such documentation constitutes its “equivalent”.

It is my job, in representing a client to obtain disability retirement benefits, to prove by a preponderance of the evidence that my client is entitled to disability retirement benefits. It is not my job to release and and all private medical documentation to the Office of Personnel Management — only such documentation as will prove my case. As such, it is important to know what is required, and what is not.

Sincerely, Robert R. McGill, Attorney specializing in disability retirement cases for Federal and Postal employees