Patience During the FERS & CSRS Disability Retirement Process

It is now post-Labor Day Weekend. Summer is essentially over. The Office of Personnel Management will be back in “full force”. The inclination will be to call up OPM and impatiently — imprudently — demand that one’s disability retirement application be reviewed, because it has been sitting on Mr or Ms. X’s desk for the last 90 days. Be cautious of what you request, or demand — because you may get your wish, but with an outcome you do not desire — a denial. I often remark to my clients that if patience is a virtue, then Federal and Postal Workers must be the most virtuous people in the world, because you are the ones who must be most patient — during the years of service you have given, during the process of dealing with a demanding public, and finally, during the process when you need the Federal Government to act quickly — the disability retirement process. Be patient; thereby, be virtuous. Unfortunately, OPM does not have a statutory mandate during the administrative process. If you must call OPM, be courteous in your inquiry, and inquire only if necessary.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement: What It Means to Have the “Burden of Proof”

Remember that the applicant who is requesting disability retirement benefits from the Office of Personnel Management always has the burden of proving, by a preponderance of the evidence, that he or she is entitled and eligible for disability retirement benefits.  Even if the Agency proposes and effectuates a removal based upon one’s medical inability to perform the essential elements of one’s job (thereby invoking the “Bruner Presumption”); nevertheless, the burden of persuasion always remains with the applicant.

Never assume anything; yes, the Bruner Presumption is nice to have, but don’t ever rely upon it to have your disability retirement benefits handed to you, because it won’t be.  The Bruner Presumption “can be rebutted if adequate evidence is identified in the record to establish that the appellant actually is not entitled to disability retirement; even with the rebuttable presumption, the appellant retains the burden of persuasion at all times to establish his entitlement to disability retirement” (See Morton v. Office of Personnel Management, 88 M.S.P.R. 691 (2001). Remember:  you always have the burden to prove your entitlement to disability retirement benefits; you must prove it; you must work tirelessly to show it.

Sincerely,

Robert R. McGill, Esquire

Federal Disability Retirement: Symptoms Versus Diagnosis

If disability retirement were merely a matter of determining the proper diagnosis of a medical condition, and having a doctor ascribe a percentage rating of disability, then the process of disability retirement would substantively be altered, and perhaps there would be far fewer cases to adjudicate at the Merit Systems Protection Board level. For, if the criteria were that ‘cut and dry’, there would be little for OPM and the applicant & the applicant’s lawyer to argue over. However, it rarely is that ‘cut and dry’ — because the major battle is rarely over the diagnosis; it is rarely over an issue concerning a percentage ascription of disability; rather, it is over the symptoms manifested, the significance of such symptoms upon the type of work one does, and in the impact such symptoms have upon the essential elements of one’s job.

That is why descriptive terms are important in disability retirement law. It is not so important ‘what it is’, as opposed to ‘how it is characterized’. From this perspective, it is important for a disability retirement attorney to be more of a poet than to be cold and analytical — although, the best approach would be to have a little bit of both. Remember to always know the context — the applicant will not be standing in front of an OPM representative showing how terrible the applicant’s medical condition is; there will be no visual presentation; everything is based upon a narrative — the applicant’s statement, the medical documentation, the legal memorandum of the attorney, etc. Thus, it is all-important for the attorney who represents a disability retirement applicant to have a good command of the English language.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement: The Reasonableness of the Governing Law

Without getting into too many comparisons, the laws governing disability retirement benefits are, upon reflection, actually quite reasonable.  Think about it this way:  yes, it doesn’t pay a great amount, but at the same time, you are encouraged to go out and be productive in some other employment capacity, and are able to make up to 80% of what your former job pays currently.

Unlike the stringent and onerous OWCP/DOL laws, you are not subjected to arbitrary, so-called “independent” medical examinations by doctors who make a substantial portion of their livelihood on rendering such “independent” second, third, and fourth opinions; your application is based upon what your own treating doctor says — not by some doctor who is a specialist in “disability ratings” or “disability determinations”.

This latter criteria is actually for the benefit of the applicant, when you stop and think about it.  For, if the law allowed for disability retirement applications to be determined by doctor’s opinions who are “disability specialists”, and not by your own treating doctor, then what would happen is that the entire disability retirement process would become a war between doctors and so-called specialists, overshadowing the one who should count the most — the treating doctor.

Instead, as the reasonableness of the present law stands, the weight of the medical determination is based upon the applicant’s longstanding treating doctor — and that is the way it should be.  For it is only a doctor who has enjoyed many years of an intimate doctor-patient relationship who should be granted the special weight and status that is accorded in disability retirement laws:  the special status of one who can make a viable, respectable determination of one’s employment capabilities, based upon the medical conditions he or she suffers from.  All in all, the disability retirement laws are governed by a criteria of reasonableness.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement: The Proper Paradigm

Whether we like to admit it or not, we all operate, in all segments of our lives, from a certain “paradigm” (reference Thomas Kuhn, Structures of Scientific Revolutions) or “world-view”. When it comes to Federal Disability Retirements, the majority of Federal and Postal workers who comes to me have a pre-formed, generally negative attitude about the chances of getting it. This is because they have heard too many horror stories; or they have had horrendous experiences with OWCP filings, or EEOC complaints, or other experiences which they then relate to how the disability retirement process must be.

Yet, all Federal and Postal employees must understand that the process of Federal Disability Retirement has many, many inherent advantages which make it different from other processes. For instance, the Merit System Protection Board has often observed, with respect to disability retirement, that it is distinguishable from other processes, because it is not — strictly speaking — an adversarial process between an agency and an employee; rather, the MSPB sees it simply as a single issue — that of an employee’s entitlement to disability retirement.

Further, the role of the Office of Personnel Management, while seemingly one of making things overly difficult for the individual, in reality has a very difficult time in ultimately justifying a denial. Why? Because they do not have a right to have a doctor of their own to examine the applicant/patient (note the difference with OWCP, where you can be sent to second, third, and sometimes fourth medical opinions by doctors chosen by DOL and paid by DOL). Thus, it is almost as if OPM must disprove a case filed by an applicant. Finally, it is difficult to attack a treating doctor of an applicant, unless there is something seriously wrong with the credentials or competence of the treating doctor. All in all, disability retirement for Federal and Postal Workers is a fair process — one which is a valuable benefit for the Federal and Postal Employee.

Sincerely,

Robert R. McGill, Esquire

Federal OPM Disability Retirement: Preexisting Conditions

There is still some confusion with respect to the relevance of preexisting medical conditions, or medical conditions which were incurred while working, or outside of the workplace, and the impact of such medical disabilities upon one’s right to file for disability retirement under FERS or CSRS. This confusion is evident from some of the questions I have been recently asked.

Remember that preexisting medical conditions are irrelevant to filing for Federal Disability Retirement benefits, in most cases; the fact that an individual has been able to perform the essential elements of one’s job for many years, but comes to a point in his or her career where the medical condition has been exacerbated, or deteriorated, to the point where it begins to prevent one from performing one or more of the essential elements of one’s job, is all that is needed to be shown.

It matters not that the medical condition “preexisted” one’s Federal service; and, indeed, many of my client’s began working with a VA disability rating, but worked successfully for a number of years, until the medical condition(s) underlying the VA disability rating worsened, or came to a point where it began to impact his or her ability to perform the job functions. Similarly, whether or not the injury or medical disability was incurred while working or while on a skiing trip, is irrelevant. The primary point and focus in FERS & CSRS disability retirements cases, is that a person has the minimum years of Federal Service (5 years for CSRS; 18 months for FERS), and during the person’s Federal Service, he or she incurred a medical condition such that it prevents one from performing one or more of the essential elements of one’s job.

Sincerely,

Robert R. McGill, Esquire

Federal OPM Disability Retirement: Notifying the Agency

Fervent loyalty by the Federal and Postal Employee to want to work for as long as possible, and to do the best job possible, is often taken for granted; what is not as common, however, is a “bilateral loyalty” — meaning, loyalty shown by the Agency back to the Federal or Postal employee, especially when such loyalty is needed, during the long process of filing for, and obtaining, disability retirement benefits from the Office of Personnel Management.

In representing a client, I am often asked whether or not the Agency should be notified of our intentions immediately, and my response always is: It depends. If there is a strong and positive relationship between the employee and supervisor, where there are strong indicators that the Agency will be supportive during the lengthy process, then I will often advise informing them fairly quickly. More often, however, the Agency has had a long history of acting in a “less than sympathetic” manner — and that is in most cases. In such cases, I normally advise to wait until the disability retirement packet has been prepared and finalized, and it is ready to be submitted to the Personnel or District H.R. Office. Each case must be looked at independently, and there are never any easy answers. Agencies are comprised of individuals; individuals are complex beings, with the potential for compassion and empathy, but just as well with a potential for cold disregard for the plight of an individual. So long as Agencies are comprised of individuals, Agencies themselves act as individuals, and each case must be viewed in that light.

Sincerely,

Robert R. McGill, Esquire