Disability Retirement for Federal Workers: The Law

The Law is a peculiar concept:  at once, it comprises the aggregation of individual lawyers, judges, clerks; it represents the legislative branch of local, state and Federal governments; it encompasses the buildings where the concept itself is applied, argued and rendered; it is governed by the multiple statutes, regulations, court opinions, etc.

Wittgenstein’s philosophical works on language games is interesting when one views the “law” from such a perspective:  the legal systems has no corresponding anchor in the “reality” of our lives, except in the very self-contained world of our language.  We speak about “the law”, live with its consequences, discuss “rights”, “legal precedence”, “court opinions”, without ever pointing to an object in the universe (except of our own creation, such as documents, buildings, people who are involved in the law, etc.) as a corresponding feature of relevance.  But certain areas of the law have “real-world” consequences.

Indeed, in preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, the connective relevance between the law, the individual, and the medical condition contains a corresponding reality, impact and significance.  The individual who files for such a benefit, the “I” who is the Federal or Postal employee, experiences the very real medical condition; the engagement in the world, as a Federal or Postal employee, is an encounter which occurs in the reality of the day-to-day world.

For some, the “law” is not merely a conceptual construct; it is a basis for which to plan for one’s future, and maneuvering through the morass of this confusing world of reality, virtual reality, complexity of language games, and the burdensome and onerous weight of the legal maze identified as Federal Disability Retirement, requires a reality-check on a daily basis.

Reality as defined by a person who suffers a medical condition, is often more “real” than those who have never encountered the experiential suffering of such constancy of reminders, that to be alive is not merely saying the words; it is a daily struggle through the acute sensing of one’s own frailty.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Logic versus Pragmatic Social Policy

In a Federal Circuit Court case a few years ago, a dissenting opinion concerning Federal Disability Retirement benefits argued that it was “contrary to logic” to allow for Federal or Postal employees to become eligible for Federal Disability Retirement under FERS or CSRS if they have been accorded light duty and allowed to remain in his or her official position while not performing many of the essential elements of the job.  

The “logic” which is argued here is based upon the paradigm that, so long as one is allowed to continue to work and receive a paycheck, one should not be considered “disabled”.  But such an argument refuses to acknowledge both the law (under the Bracey v. OPM decision), as well as good economic and social policy.  

The fact is that under Federal Disability Retirement rules, laws and case-laws, what the Administrative Judges and Courts have acknowledged is that a Federal or Postal worker should not be subjected to the arbitrary whims and actions of a single supervisor or Agency; instead, there should be a criteria upon which a Federal or Postal worker should be able to rely upon.  That objective criteria is in essence as follows:   A Federal or Postal worker should have to perform all of the essential elements of one’s job.  If not, that Federal or Postal worker is deemed “disabled” under the laws governing Federal Disability Retirement benefits.  

While an Agency may allow for light duty, or temporary assignments, such light duty or temporary assignments should not preclude the obvious fact that the Federal or Postal worker continues to remain disabled.  This way, there is an objective criteria of the law to be followed, which cannot be altered based upon the arbitrary whim of a Supervisor or an Agency, who may come along a year later and disallow all light duties or temporary assignments.  Thus, in this case, the social and economic policy as envisioned under the Federal Disability Retirement rules, regulations and laws, are not only pragmatic, but logical.

Sincerely,

Robert R. McGill, Esquire

Federal Disability Retirement Benefits for Federal & Postal Employees: Logic, Art & Simplicity

Logic is the pathway out of a conundrum; complexity is often the result of confusion; clarity is the consequence of simplicity.  Yes, there are complex minefields in filing a Federal Disability Retirement application under FERS & CSRS.  The complexity of the entire process is often the result of layers upon layers of legal case laws and statutory refinements and interpretations which form the entirety of the “legal criteria” which surrounds each and every application for Federal Disability Retirement.  When an individual files an application for Federal Disability Retirement benefits, he or she is often unaware of the long history of all of the applicants who preceded the singular case being presently contemplated, formulated, and projected for filing.  Instead, that individual looks upon his or her disability retirement application without regard to what preceded it.

Perhaps it is best that most applicants are unaware of the thousands of cases which have impacted the entire process over decades; yet, when the glitch occurs — when an application for Federal Disability Retirement benefits is denied — then the importance of knowing the precedent-setting cases which have impacted the various and complex issues surrounding OPM Disability Retirement come into focus.  That is why it is best to be prepared beforehand, and to understand the logic behind the laws; by understanding, to realize the simplicity of the process; and by such realization, to put together an effective Federal Disability Retirement application.  Such a process is often more than logic and law; it rises to the level of an art form.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement: The Complexity of the Simple

Federal disability retirement law, the statutes and regulations which govern eligibility; the multiple case-law opinions from Administrative Judges and Federal Circuit Judges interpreting the governing statutes and regulations; the lawyers who argue different aspects and attempt to “fine-tune” existing law (including this lawyer) — the entirety results in “making complex” that which was essentially simple.

There is an old adage that the King who declared the first law of his Kingdom was really attempting to reduce the unemployment figures by creating the need for lawyers. Indeed, “the law” is often made more complex by lawyers. However, while the multiple issues governing Federal disability retirement law under FERS & CSRS may appear, at first glance, “simple”, it is such simplicity which engenders the complex, precisely because laws which reflect a simple conceptual paradigm require extensive interpretation in order to explain the simpleness of the simplicity. That is why law itself is complex. Don’t let the complex confluse you. As you prepare a disability retirement application, recognize that it is a complex process; at the same time, make sure to explain your medical condition and how it impacts your ability to perform the essential elements of your Federal or Postal position in an easy-going, simple and straightforward manner. Don’t make it complex; keep it simple; but recognize the complexities.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Do Psychiatric Disabilities Still Carry a Stigma?

Do Psychiatric Conditions still carry a stigma?  Does the Office of Personnel Management, or the Merit Systems Protection Board, treat Psychiatric medical conditions any differently than, say, bulging discs, degenerative disc disease, or carpal tunnel syndrome, etc.?  Is there a greater need to explain the symptoms of psychiatric conditions, in preparing an Applicant’s Statement of Disability, than conditions which can be “verified” by diagnostic testing?  Obviously, the answer should be: There is no difference of review of the medical condition by OPM or the MSPB. 

Certainly, this should be the case in light of Vanieken-Ryals v. OPM.  Neither OPM nor an MSPB Judge should be able to impose a requirement in disability retirement cases involving psychiatric disabilities, that there needs to be “objective medical evidence,” precisely because there is no statute or regulation governing disability retirement which imposes such a requirement that “objective” medical evidence is required to prove disability.  As I stated in previous articles, as long as the treating doctor of the disability retirement applicant utilizes “established diagnostic criteria” and applies modalities of treatment which are “consistent with generally accepted professional standards,” the evidence presented concerning psychiatric disabilities should not be treated any differently than that of physical disabilities.  As the Court in Vanieken-Ryals stated, OPM’s adherence to a rule which systematically demands medical evidence of an “objective” nature and refuses to consider “subjective” medical evidence, is “arbitrary, capricious, and contrary to law.”  Yet, when preparing the Applicant’s Statement of Disability, it is always wise to utilize greater descriptive terms.  For, when dealing with medical conditions such as Bipolar disorder, Major Depression, panic attacks, anxiety, etc., one must use appropriate adjectives and “triggering”, emotional terms — if only to help the OPM representative or the Administrative Judge understand the human side of the story.

Sincerely,

Robert R. McGill, Esquire

Summary Legal Update for FERS & CSRS Disability Retirement

On my website, Federal Disability Retirement Lawyer, I give a more extensive explanation of a recent and important case impacting federal disability retirement applications, but I think that it is important for everyone filing, or contemplating filing, for disability retirement under FERS or CSRS, to be aware of the recent United States Court of Appeals case for the Federal Circuit, Vanieken-Ryals v. OPM, #2006-3260, decided on November 26, 2007, in which it was found that OPM’s adherence to the rule that they will refuse to “consider such medical evidence…for being ‘purely subjective’ is a critical legal error…and clearly prejudicial.”

Often, in cases involving cognitive impairment, psychiatric disabilities, disabilities involving diffuse and chronic pain, and those conditions such as Fibromyalgia, Chronic Fatigue, etc. the Federal Circuit Court in Vanieken-Ryals has essentially held that OPM’s adherence to “objective evidence” is “unsupported in the law, was arbitrary, capricious and contrary to law.”

The Judge therein stated that OPM must consider the medical evidence that is submitted, and cannot attack a medical condition unless there is a doubt as to the “credentials or veracity [of the doctor],” and this is especially true where the doctor has “utilized established diagnostic criteria and [is] consistent with ‘generally accepted professional standards’ ” of medical practice.

This is an important case for Federal disability retirement applicants to use when filing for psychiatric medical disabilities, and for those “hard to define” cases (again, e.g., Fibromyalgia, Chronic Fatigue Syndrome, etc.), because OPM will often declare as a basis for denial that the applicant lacked “objective medical evidence” or that there was no “objective diagnostic tests” showing the medical condition. This is, to use a very well-know legal term, now considered “baloney”. As long as the doctor has applied established diagnostic criteria and generally accepted professional standards, unless OPM can attack the credentials of the doctor, they must consider the medical evidence.

Sincerely,

Robert R. McGill, Esquire