CSRS & FERS Medical Disability Retirement: Bureaucracy and the Objective Algorithm

On the one hand, objectivity can be viewed as a positive thing; for, with it, one is assured that all applications are treated equally, by the implementation of identical criteria across the board.  “Gut feelings”, personal beliefs, and that “sixth sense” is eliminated; and thus is fairness achieved by the equal treatment of all cases, and “exceptional circumstances” are not, and cannot be, considered.

What such an approach gains in large-scale application, however, may lose out in individual cases.  For, if experience and age accounts for anything, it should allow for decisions made outside of the mainstream of thought, based upon those very factors which make up the difference — wisdom from years of engaging in a particular endeavor.

The problem with the bureaucratization of a process is precisely that it fails to allow for exceptions; but concomitantly, it is precisely those unique circumstances which cry out for a carved-out exception.  In a Federal Disability Retirement application, submitted to the U.S. Office of Personnel Management, whether under FERS or CSRS, there are always cases where all of the facts and circumstances reveal eligibility; but in applying the mathematical (and thoughtless) algorithm of criteria-based analysis, there may be something missing.  Perhaps the doctor would not, or could not, say exactly X; or the test results revealed nothing particularly significant.

In some ways, the medical conditions identified as Fibromyalgia or Chronic Fatigue Syndrome represent such scenarios.  In those instances, it is important to descriptively convey the human narrative in a particularly poignant manner.

The administrative bureaucracy is here to remain among us; to rise above the level of thoughtless application of a criteria, however, one must creatively encourage the phoenix to rise from the ashes of boredom, and span its wings to include those others who deserve the benefits of Federal Disability Retirement.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: The Case of Fibromyalgia

Fibromyalgia is one of those medical conditions that the Office of Personnel Management systematically “targets” as a condition which is prima facie “suspect”. This is despite the fact that there are cases which implicitly “admonish” OPM from engaging in the type of arbitrary reasoning of denying a disability retirement application because they “believe” that “no objective medical evidence” has been submitted, or that the “pain” experienced (diffuse as it might be) is merely “subjective”, or that the chronicity of the pain merely “waxes and wanes”, and a host of multiple other unfounded reasonings. Yet, cases have already placed a clear boundary around such arbitrary and capricious reasonings.

A case in point, of course, is Vanieken-Ryals v. OPM, a U.S. Court of Appeals for the Federal Circuit case, decided on November 26, 2007. In that case, it clearly circumscribes the fact that OPM can no longer make the argument that an Applicant’s disability retirement application contains “insufficient medical evidence” because of its lack of “objective medical evidence”. This is because there is no statute or regulation which “imposes such a requirement” that “objective” medical evidence is required to prove disability. 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'”, then the application is eligible for consideration. Further, the Court went on to state that it is “legal error for either agency (OPM or the MSPB) to reject submitted medical evidence as entitled to no probative weight at all solely because it lacks so-called ‘objective’ measures such as laboratory tests.” Statues are passed for a reason: to be followed by agencies. Judges render decisions for a reason: for agencies to follow. Often, however, agencies lag behind statutes and judicial decisions. It is up the an applicant — and his or her attorney — to make sure that OPM follows the law.

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