Federal Employee Medical Retirement: Close Encounters of the Third Kind

The title reference, of course, is to the old Spielberg film concerning contact with an alien being; but such a remote, rare and unique experience need not be with an entity from another galaxy or planet, but can be closer to home.

Most people will never need to experience engagement with the U.S. Office of Personnel Management, OPM Division of Disability, Reconsiderations and Appeals, in order to apply for Federal Disability Retirement benefits (whether under FERS or CSRS), leaving aside having to file an appeal to the U.S. Merit Systems Protection Board.

But when the Federal or Postal employee finds him/herself in such a unique situation such that contact with the U.S. Office of Personnel Management or the MSPB becomes necessary, such an experience will be as peculiar and strange an an encounter of the “third kind”.  Moreover, the experience itself may be an unwanted and unpleasant one, because it is something accomplished and pursued while experiencing a personal crisis involving a medical condition.

The encounter itself — however strange, unpleasant or unwanted — nevertheless is a reality which must be dealt with, and in so doing, it should be done in as efficient a manner as possible.

In an initial encounter with an alien being, one would assume that there might be some trepidation and reluctance, mixed with a great amount of suspicion.  That would be natural.  In a similar encounter with the U.S. Office of Personnel Management, it is best to also have a healthy dose of skepticism; better yet, you might want to contact an expert who has had some past experience in dealing with the entity.

Sincerely,

Robert R. McGill, Esquire

Federal Employee Medical Retirement: The Key to a Case

Often, when dignitaries or celebrities visit a particular city, they are recognized, applauded and sometimes “given the keys” to a city — metaphorically meaning that they are provided with certain benefits and access to such benefits.  It would be nice if, in every circumstance involving the necessity of identifying a key to an access, that we could figure out which key fits, in order to open the door to that previously-inaccessible entranceway.

In preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, it is important to identify, recognize, and implement the “keys” to a successful outcome.  If one metaphorically views a Federal Disability Retirement application, then the application itself would be the key; the doorway which prevents access is the U.S. Office of Personnel Management; and the opening of the door is the successful approval of a Federal Disability Retirement application.

The “key”, then, is that which opens the doorway, and leads to eligibility of one’s Federal Disability Retirement benefits.  The focus of the Federal and Postal employee must be upon choosing the right key; crafting the proper implement; then ensuring that the instrument fits properly the lock which bars the entrance to the gateway of success.

Such formulation and compilation of the proper key in order to obtain access, is — to put it in trite form — the key to one’s success.  As such, it is important to put one’s effort in the timeline just before putting the key into the lock — i.e., in the formulation and preparation, of compiling the right data, arguments and documents, in order to possess and apply an effective application.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Helpers

Then, of course, there are those Human Resources and OPM personnel who have been, continue to be, and will always be, greater helpers throughout the process in assisting Federal and Postal employees to obtain disability retirement benefits under FERS & CSRS.  They are diamonds in a sea of hindrances and obstacles.  And when you come across such an individual, at any stage of the process, one must always express one’s gratitude.  One might argue that they are “just doing their job”, but what such individuals do is clearly beyond the job that they are paid to do.  No only do they assist in the process, but they “humanize” the process; and, especially when a Federal or Postal employee who has a medical disability receives not only assistance in the process, but guidance in providing help to ease and smooth the road to approval, it is indeed a pleasant experience to come across the human touch. A word of thanks to all such Human Resources Personnel.

Sincerely,

Robert R. McGill, Esquire

Federal & Postal Service Disability Retirement: Hindrances

One would think that the Human Resources Department of the Agency from which a Federal or Postal employee is attempting to file a Federal Disability Retirement application, would be a “helpful” entity.  It is indeed a baffling phenomena when one pauses and reflects upon it:  What is the purpose of the Human Resources Department?  Specifically, what existential purpose does a person serve, who has a positional designation of “Disability Retirement Specialist”?  Let me attempt to answer the question in the way it is supposed to be answer:  1.  The purpose of the Human Resources Department is to help the Federal and Postal employees of the Agency or Department of which they have been established.  2.  The person who holds the designated job entitled, “Disability Retirement Specialist” is one who, theoretically, is there to assist in any way, within the legal confines established by the Agency, in as much as possible, to help the Federal or Postal employee to finalized and complete the disability retirement packet for submission to the Office of Personnel Management.  Now, let me pose the following hypothetical:  an H.R. person calls up and says, “I cannot forward the disability retirement packet because Box Number ___ on Standard Form _____ has not been checked.”  Does this sound like the Human Resources Department is fulfilling the existential purpose for which it was established?  On the other hand, rhetorical questions are fun to ask, precisely because they are rhetorical, and allow one to expiate some build-up of frustrations on a Friday night, after a long week dealing with multiple agencies.  Have a good weekend.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Applicant’s Statement & Essential Elements

When an applicant for FERS & CSRS Federal Disability Retirement benefits begins to craft his or her Applicant’s Statement of Disability, certain foundational questions must be considered before composing the historical, emotional, substantive and impact-descriptive narrative.  For instance, to the legal criteria, To be eligible for Federal Disability Retirement Benefits, one must show that one’s medical conditions prevent one from performing one or more of the essential elements of one’s job — the initial and most foundational question obviously is:  What are the “essential elements” of one’s job? 

Now, that may seem like a simple — even simplistic — question.  One needs only to look at the official position description and pick out the major factors of the position.  If only it were that easy.  For, there are many “implicit” essential elements which are not explicitly stated, and it is often those unspoken, “un – described” elements, which are directly impacted by one’s medical conditions and disabilities, which must be creatively woven into the narrative of one’s disability statement.  Always remember to take care of the “foundational” issues first; thereafter, the narrative can extrapolate from the major factors of the position description.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: The Proper Focus of the Attorney

Have you heard of the fable about the general who led a vast and unstoppable army, with multitudes of foot soldiers, artillery, supply lines, a vast ocean of destructive power — who stopped to console a woman who had lost her son to an illness?  He failed to lead his army, and as a consequence, his vast and seemingly indestructible army was devastated in a battle which should have been a lopsided victory for the general of whom we speak.  What is the point of that fable?  It is that we all have our duties and responsibilities, and while the moral compass of the general was certainly “not inappropriate” (note the double negative) — but the timing was inappropriate.  Why was the timing inappropriate?  Because the general had other more pressing duties and responsibilities to attend to. Thus, it is important in speaking about the proper role of individuals, to always point to both content, as well as context.  The general’s job was to lead his army; the fact that he had empathy for a woman who had lost her son, is commendable — but not in the context of needing to lead his men into battle. 

This is important to understand in the context of a client and his or her attorney; remember that the attorney’s role is to win the case; and while empathy for the client’s personal situation and, in the case of Federal Disability Retirements under FERS & CSRS, it is important for the attorney to understand the “human story” of the medical condition, the impact of such medical conditions, and how they prevent one from performing the essential elements of one’s job, remember that the primary focus of the Federal Disability Retirement attorney is, and always should be, upon applying the applicable law, and to win the case.  It is the Attorney’s job to keep the client’s focus upon those issues which will help him win the case.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: OPM’s Specific Denial I

On those occasions when an OPM denial specifically (and correctly) identifies and asserts deficiencies in a disability retirement application, it is important to have a targeted response in addressing the denial.  The reason for such a targeted approach is for two primary reasons:  (1)  One should always address the alleged specific basis of OPM’s denial of a Federal disability retirement application, and (2) By specifically addressing and answering OPM’s specific basis for the denial, if the Office of Personnel Management denies the application a second time, and it is therefore appealed to the Merit Systems Protection Board, it is important to view the entire case of OPM as “unreasonable”.  In other words, it is important at the outset to “prejudice” the Administrative Judge as to the unreasonableness of the Office of Personnel Management. And there is absolutely nothing wrong with this — because the “prejudice” which the Judge may perceive is in fact based upon the truth of the matter:  OPM is indeed being unreasonable, and it is important for the Administrative Judge to see such unreasonableness.  It is important to be able to say to the Judge, Your Honor, do you see how we answered the basis of the denial — and yet, even after specifically addressing the basis of the denial, OPM still denied it?  What else can we do?  It is always important to prepare each step of the case not only for the “present” case, but also for the potential “next” case.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: Trying it Without an Attorney

I get calls all the time by people who tell me that they thought their particular Federal Disability Retirement case was a “slam dunk”; that the medical documentation was there; that everything looked like it should be approved at the first level.  Then, there are people who tell me the same thing after the second, Reconsideration denial — that he or she thought it should definitely pass through.  But law, and especially administrative law before the Office of Personnel Management, has peculiarities beyond a surface, apparent reality.  There is a process and a methodology of obtaining disability retirement. Can a federal disability attorney guarantee the success of a disability retirement application?  No.  Does an individual applicant have a better chance with the assistance of an attorney who specializes in disability retirement law?  In most cases, yes.  Aren’t there applicants who file for disability retirement, without the assistance of an attorney, who are successful?  Yes.  Should everyone who files for disability retirement hire an attorney?  Not necessarily. 

When I speak to a client, I try and place him or her on a spectrum — and on one side of that spectrum is an individual who works at a very physical job, and who has such egregious physical medical disabilities; on the other side of the spectrum is an individual who suffers from Anxiety, who works in a sedentary administrative position (please don’t misunderstand — many people who suffer from anxiety fall into the “serious” side of the spectrum, and I am in no way attempting to minimize the psychiatric disability of Anxiety).  Most people, of course, fall somewhere in the middle.  Yes, I have told many people to go and file his or her disability retirement application without an attorney.  There are those cases which are so egregious, in terms of medical conditions, that I do not believe than an attorney is necessary.  However, such instances are rare.  Thus, to the question, Should everyone who files for Federal disability retirement under FERS & CSRS hire an attorney?  Not necessarily — but in most cases, yes.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Further Comment on Vanieken-Ryals

Vanieken-Ryals v. OPM, decided by the U.S. Court of Appeals for the Federal Circuit on November 26, 2007, has an interesting statement from the deciding Judge, which can be used as “firepower” for anyone who is attempting to obtain Federal Disability Retirement benefits (note of caution:  for lay non-attorneys, be careful in how you use it in trying to convince a lay, non-attorney OPM representative):  “In addition, neither the MSPB nor OPM discussed the content of Dr. [ ] or [ ] evidence in any meaningful way, which further demonstrates that it was not properly considered.  OPM, for example, resorted to a laundry list of “objective” tests and documents that the medical evidence did not contain rather than examining the evidence and evaluating what it did contain.”

Interpretation:  If OPM’s argument is to focus upon what is missing, they have violated their primary Agency/administrative responsibility — that of evaluating, in some “meaningful” manner, the medical evidence which was in fact submitted.  This can be used effectively for the Reconsideration Stage by diplomatically pointing out the error of OPM, and citing Vanieken-Ryals, and highlighting the relevant portions of the medical documentation previously submitted.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement: Remember the Details

At each state of attempting to get a Federal disability retirement application approved, it is important to “remember the details”. For example, at the Merit Systems Protection Board level, in conducting a Hearing, remember that if the best medical evidence/testimony you are able to provide is through a health professional other than an “M.D.” (e.g., a therapist, a Nurse Practitioner, a Chiropractor, etc.), always point out the unique credentials of the provider, to include whether in the particular state in which he/she practices, if greater latitude and responsibilities are given to the practitioner.

Thus, it may be that in one state a Nurse Practitioner can exam, diagnose, and prescribe a medication regimen without the direct oversight of a medical doctor, whereas in other states such latitude may not be allowed. This should be pointed out to the Judge, to emphasize greater credibility of the testimony of the practitioner. Further, remember that in Vanieken-Ryals v. OPM (U.S. Court of Appeals for the Federal Circuit, November, 2007), the Court therein reiterated that the medical documentation/evidence required must come from a ‘licensed physician or other appropriate practitioner’, and so long as that medical practitioner utilizes “established diagnostic criteria” and that which is “consistent with generally accepted professional standards”, the testimony cannot be undermined. Use the strengths of the case you have, and emphasize the little details that matter.

Sincerely,

Robert R. McGill, Esquire