Federal and Postal Disability Retirement: The Depressed Ground

A huge sinkhole in Guatemala City: This one was estimated to be 60 feet wide and 300 feet deep

The term itself immediately implies the clinical concept of a psychiatric condition; but, of course, it can also mean that there is a geological sinkhole, of a stretch of land, small or large, sunken in comparison to the surrounding area.  A rabbit’s nest can create a depression; excessive rain can loosen the soil and depress the land; and depression can overtake the healthiest among us, sending us down a course which envelopes the emotions, mind and soul with loss of energy, overwhelming sadness, and lethargy of life so overpowering that physical manifestations, profound and intractable fatigue, and an unwavering sense of hopelessness and helplessness pervades.

Sometimes, the two distinct but complementary concepts can intersect: the depressed grounds only adds to one’s depression. The former usage, of course, only metaphorically speaks to the physical characteristic of description; the depression of the ground is not literally a physical sinking of the land, but implies a dilapidation of the neighborhood; while the latter refers to the mental state of an individual exacerbated by the solitary degradation of the environment.

It is when the two distinct conceptual constructs intersect and are combined, that the impact upon the Federal or Postal worker may be felt.  For it is precisely the vicious cycle of “feeding upon itself” that the Federal or Postal Worker experiences — of the depression in a clinical sense, combined with the depressed grounds of one’s workplace — when change of scenery may become necessary in order to travel towards the path of restorative health.

Mental illnesses can affect persons of any age, race, religion or income: Here a young woman listens to her psychologist

Federal Disability Retirement benefits, filed through the U.S. Office of Personnel Management, is available for all Federal and Postal employees who are under FERS or CSRS, when the intersection of a medical condition and one’s inability to perform one or more of the essential elements of one’s job, comes to the fore. It is there to be eligible for all Federal and Postal employees, when the depression (in the clinical sense) impacts the depressed grounds (in the sense of the work environment).

Thus, when the joy of life is depleted, and the hallowed grounds of sunlit mornings and the cool breeze of dusk transforms into a universe of regret and remorse, Federal Disability Retirement benefits for the Federal and Postal employee should be a serious consideration; as it may become necessary to leave the depressed grounds of yore.

Sincerely,

Robert R. McGill, Esquire

 

Disability Retirement for Federal Workers: Natural Pairs

Shoes come in pairs; gloves, eye glasses, slippers and shoelaces. Obviously, products are manufactured to fit the need, and the loss of one of the pairs often requires the purchase of replacement for both, precisely because it is difficult to locate a store which will sell you only one of the replacement pairings.

Other couplings may not be as easily identifiable, but nevertheless tend to be related; for example, “stress” if often paired with “anxiety“, and a hostile work environment is tied to both stress and anxiety.  Though we may not refer to such related concepts in the manner similar to a pair of gloves (one doesn’t hear the term, “the pair of stress and anxiety”), the combination coincides precisely because of the inherent nature of similitude.

Perhaps it is more appropriate to speak in terms of a tripartite concept: of a hostile work environment, increasing the level of stress, and resulting in the medical condition of exacerbated anxiety. Or, perhaps a tetralogy of a compound concept: a hostile work environment; stress; anxiety; a medical condition. Or are the latter two so interrelated and therefore count as one, as “anxiety” is a “medical condition”, and so we should revert back to the tripartite category? For, it is certainly the case that when a medical condition enters the workforce, there is too often an increase in workplace hostility, resulting in greater quantification of stress, and the consequence of exacerbation of anxieties, which further compounds the complications of medical conditions, which…

So, perhaps the proper and more appropriate conceptual identification involves a somewhat vicious circle of cause-to-effect, effect-to-cause? Whatever the technically precise categorization of conceptual identification, for the Federal or Postal employee who suffers from a medical condition, such that the medical condition prevents one from performing one or more of the essential elements of one’s positional duties, one thing is clear: all such concepts are interrelated, connected, intersecting in conceptual constructs, and compounded in complexities of human behavior.

Filing for Federal Disability Retirement benefits, whether under FERS or CSRS, submitted through the U.S. Office of Personnel Management for consideration, is an option which should be considered by the Federal and Postal Worker, if one wants to entertain a viable alternative to remaining in that vicious cycle of medical condition, stress, hostile work environment, anxiety…

The pairing of conceptual constructs is a reality in the world which is not mere linguistic play; the medical condition is real; the world of work is often harsh; stress is a silent but true killer; and anxiety is not just a passing phase in one’s life. No, it is not the pairings which are unnatural; rather, it is artificial nature of how we cover up the reality of such pairings, which makes for sadness in this world.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: The World in Which We Live

Various social commentators have observed the contradiction that, while we live in an increasingly global economy, individuals feel a greater sense of isolation; thus, the conundrum that the world is no longer an expansive, unreachable universe, but in private lives, the uniqueness of the individual is lost and forgotten.

Whether because of the stresses of isolation, or because of the fast-paced, technologically-driven world in which we live, or some organic-based reasons, one may never know; nevertheless, the exponential explosion of psychiatric illnesses erupting in our society cannot be denied.

There was a time, perhaps a decade or so ago, when a stigma was attached to medical conditions and disabilities which were deemed “stress-related“, and which encompassed depression, anxiety, uncontrollable panic attacks, agoraphobia, etc.  One cannot mark a clear demarcation of when the approach and societal attitude, let alone the medical community’s acceptance, of the wide array of psychiatric conditions, changed.

For Federal Disability Retirement purposes, however, the level of approvals versus denials between cases involving psychiatric conditions, as opposed to purely physical medical conditions, has become indistinguishable.  The U.S. Office of Personnel Management does not review or analyze cases based upon psychiatric conditions — so long as one can tell, purely from an “outsider’s” perspective — any differently from “physical” medical conditions.

This is obviously a “good” thing, because psychiatric medical conditions are just as valid, serious, “real”, and devastating, as the most serious of “physical” medical conditions.  The world in which we live has certainly changed; OPM has evolved with the new world, and we are all the better off for it.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Government Employees: Anxiety

Anxiety is a special form of a psychiatric disability — one which must be approached with thoughtful care in preparing a Federal Disability Retirement application under FERS or CSRS.  While often accompanied by Major Depression, and sometimes panic attacks, Generalized Anxiety Disorder will often have corollary discussions in medical treatment and office notes of references to employment issues involving workplace harassment, discrimination, hostile work environments, etc.  Such references to workplace issues can lead to the Office of Personnel Management denying a Federal Disability Retirement application based upon “Situational Disability” — a medical disability which is self-contained within a particular workplace situation, but which may not necessarily extend to a different office environment with the same job requirements.  

To make moot a claim of situational disability, one would have to show that the medical condition — Anxiety — pervades all aspects of one’s life, and is not just circumscribed by the particular harassing environment of a specific workplace, or a Supervisor, or a hostile workplace, etc.  The more one focuses upon the workplace as the instigating causal force behind one’s anxiety, the more it will compound the problem of being deemed a “situational disability” in a Federal Disability Retirement application under FERS or CSRS.  Ultimately, it is irrelevant what “causes” the anxiety; the important thing is that a person suffers from a medical disability, and the primary focus should be upon treatment of that condition.

Sincerely,

Robert R. McGill, Esquire

Federal and Postal Disability Retirement: Those “Second-Class” Medical Conditions

We all know what the “Second-Class” medical conditions are:  Fibromyalgia, Chronic Fatigue Syndrome, Diffuse Pain, Chemical Sensitivity issues, etc.  To some extent, such medical conditions have always been a paradigm of a society — at one time, one could argue that all psychiatric conditions were treated in a similar manner:  accepted at some level as a medical condition, but stigmatized as somehow being less than legitimate.

In a Federal Disability Retirement application under FERS or CSRS, it is patently obvious that the Office of Personnel Management treats certain medical conditions as “second-class” conditions.  They often deny such cases at the initial stage of the process, and unless you point out a compendium of established case-law authorities, OPM will often get away with their groundless assertions.

Words matter, and which words and arguments are chosen to rebut the Office of Personnel Management matters much in a Federal Disability Retirement case.  Such medical conditions are not second-class medical conditions, and OPM should not be allowed to treat them as such.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: The Law

I will be writing an article of greater length on this issue, but suffice it for now that when “the law” works, it works well. A major second case has been decided in favor of the Federal employee — first, it was Vanieken-Ryals v. OPM, 508 F.3d 1034 (Fed. Cir. 2007), and now, Sylvia M. Reilly v. OPM, decided July 15, 2009. Vanieken-Ryals toppled the irrational imposition of a baseless standard by OPM — that there is a distinction to be made between “objective” as opposed to “subjective” evidence concerning medical evidence (example of the absurdity: How do you prove the existence of pain? While an MRI may show a physical condition, you cannot prove that such a physical condition equates to debilitating pain, leaving aside any quantification of pain. Similarly, how do you prove the existence of Major Depression? Anxiety? Panic attacks?).

Now, Reilly v. OPM has toppled another idol of a false standard imposed by OPM: that medical documentation which post-dates separation from Federal Service is near-irrelevant. This has never made sense, for at least 2 reasons: first, since a person is allowed to file for Federal Disability Retirement within 1 year of being separated from service, why would medical documentation dated after the separation be considered irrelevant? Second, medical conditions rarely appear suddenly. Most conditions are progressive and degenerative in nature, and indeed, that is what the Court in Reilly argues. Grant another win for the Federal employee, the law, and the process of law. It makes being a lawyer worthwhile when “the law” works.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: The Client

Waiting for the approval/disapproval, the determination, the decision,etc., when the Federal Disability Retirement packet is sitting on OPM’s desk, is a passive modality of existence.  Up to that point, however, it is often a good idea to be actively involved in the process.

Whether having an Federal Disability Attorney or not, it is good to “flag” interim dates, to keep on top of how long it has been since the initial letters have been sent out to the doctors, to call the doctors and (diplomatically) ask for a reasonable time-frame within which to have the medical narrative reports written; to ask whether or not a fee is required to prepare the narrative report, and if so, how much, and if prepayment will expedite the report.

Then, once it arrives at the Agency H.R. people (or, in the case of the Postal Worker, the H.R. Shared Services Center in Greensboro, North Carolina), it is a good idea to periodically call (about every two weeks) to see what stage in the process your application is at.  Thereafter, once it is forwarded to the finance office, then on to Boyers, PA, it is a matter of waiting for the CSA number to be assigned, and then the long, arduous wait.

Sincerely,

Robert R. McGill, Esquire
Federal Disability Lawyer

 

Important Cases Which Impact Disability Retirement Applications

The recent case of Vanieken-Ryals v. OPM, U.S. Court of Appeals for the Federal Circuit, decided on November 26, 2007, cannot be overemphasized for its importance to the disability retirement process. It is, in my view, a landmark case which will greatly advance potential disability retirement applicants who base their disabilities upon psychiatric conditions. In representing my clients, I have repeatedly argued that the Office of Personnel Management’s insistence upon “objective medical evidence”, especially when it involves clients who suffer from psychiatric medical conditions (e.g., Major Depression, Anxiety, panic attacks, Bi-Polar Disorder, etc.) is not only unfair, but irrational. My past arguments were met with varying degrees of success, but the essential argument that I made over the years went something like this: Psychiatric disabilities by their inherent nature are “subjective”, because there is no diagnostic test which can objectively determine symptoms of psychiatric disabilities. Indeed, while there are multiple psychological tests which can be administered, the results are still based upon the subjective responses of the patient. Furthermore, a doctor’s clinical examination, long-term evaluation by a treating doctor, and the consistent assessment by one’s treating doctor, provide for the best and most ‘objective’ basis for a valid medical opinion. Further (my argument would often go), even physical disabilities (like a bulging disc) which can be ascertained by an MRI, cannot provide a conclusive basis to determine the extent of one’s pain or inability to perform certain tasks, for pain is by definition a “subjective” condition; there are, indeed, some who have bulging discs but have very little pain, and others who have a minimal bulging disc which completely debilitates the individual. These were rational arguments made, and while fairly persuasive when combined with case-law citations, the force of such arguments often depended upon the receptiveness of OPM’s representative or, at the Merit Systems Protection Board level, the receptiveness of the Administrative Judge.

With the opinion expressed by the Court in Vanieken-Ryals v. OPM, we no longer need to rely upon the arbitrary receptiveness of an individual, for we have a firm legal basis to counter the irrational basis that OPM routinely gives in their denials based upon an objective/subjective distinction.

The Court in Vanieken-Ryals made several important declarations in their opinion:

1. 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”, especially when the application is based upon psychiatric medical conditions. This, because there is no statute or regulation which “imposes such a requirement” that “objective” medical evidence is required to prove disability.

2. 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.

3. 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.”

Ultimately, for purposes of this article, which is (hopefully) read by many non-lawyers, the essence of the Vanieken-Ryals case is that it exponentially strengthens a disability retirement application based solely upon psychiatric medical disabilities. The case itself contains many other elements which provide for strong ammunition, when used wisely and with knowledge, for the disability retirement practitioner of law. It makes a strong and unequivocal statement that OPM’s and MSPB’s adherence to a rule which systematically demands for “objective” medical evidence and refuses to consider “subjective” medical evidence, is “arbitrary, capricious, and contrary to law.” This is indeed strong language which can be used as a sword to prevail in a disability retirement case.

Persistence in the pursuit of a client’s right and entitlement to disability retirement benefits is never a lost cause, and those who have hesitated from filing for disability retirement because they suffer from purely psychiatric medical disabilities, or from disabilities which are often harder to “objectively” justify (e.g., Fibromyalgia, Chronic Fatigue Syndrome, etc.) have a greater chance because of the bold legal opinion as expressed by the Court in Vanieken-Ryals.

This is a landmark case of incalculable importance and impact, which cannot be overemphasized. I have already cited the case on numerous occasions at the MSPB level, and the fact that it is a Court of Appeals decision makes it binding upon all MSPB judges. It gives greater hope for those who suffer from Psychiatric Disabilities alone, that their cases will not somehow be looked upon with less chance of approval than a person with a physical medical condition.

Other case updates: While Vanieken-Ryals was not a case that I represented, there are some case-updates from my own files which may be of some interest to my readers. All information provided is already in the public record of the written Opinion of the Judges, and there is no information revealed here that violates my attorney-client confidentiality. I wish that I could claim that I win all of my cases; I cannot. However, it is my firm belief that persistence in the pursuit of a client’s disability retirement application is never a lost cause, and here are three cases which reinforce my philosophy:

1. Tucker v. OPM (DA-844E-07-0314-I-1) The Office of Personnel Management kept denying Ms. Tucker’s disability retirement application. This case was finally won at the Hearing level. However, the Office of Personnel Management filed a Petition for Review. I responded with — among other arguments — the fact that the Office of Personnel Management failed to make any legal arguments showing that the Hearing Judge committed any legal errors. The Full Board rejected OPM’s Petition and affirmed the decision in my favor. No further appeals have been filed. I am happy for my client that after so many years, she will now get her disability retirement. Persistence in rebutting OPM’s attempt to reverse a Hearing Judge’s decision is never a lost cause.

2. Hartsock-Shaw v. OPM (PH-844E-06-0658-I-1) This one is the converse of the previous one, in that the Hearing Judge initially affirmed OPM’s denial of my client’s disability retirement application. I filed a Petition for Review, because I believed the Judge was wrong in not applying the Bruner Presumption in this case. The Full Board vacated the Initial Decision and Remanded the case back to the Hearing Judge, requiring further testimony on the issue of whether the Bruner Presumption should have been applied. We were able to factually prove that the circumstantial evidence necessitated the finding that my client was removed for her medical inability to perform her job, even though there was no final letter of removal issued by the Postal Service that we could find. The Judge sided with us, reversed her prior decision, and granted my client her disability retirement benefits. Persistence paid, and persistence in the pursuit of a disability retirement claim is never a lost cause.

3. Heiter v. OPM (AT-0831-07-0435-I-1) This is an interesting case. It has to do with a client who lost his disability retirement benefits because he tried to go to work for Federal Express. He was being punished for trying. One would think that a disability retirement annuitant would be commended and praised for trying — but, no, because he applied for, got the job with, and then quit, a job with Federal Express, he was deemed to have been ‘less than honest’ for having retired on disability from a Postal Job, and therefore OPM cut off his disability retirement benefits. We went to Hearing on the matter; the doctor testified unequivocally that he couldn’t do the job — neither the Federal Express one nor his prior Postal job — but he couldn’t fault his patient for having tried. OPM made a big deal about the fact that my client periodically went bowling. The Judge ruled in OPM’s favor. I filed a Petition for Full Review. The Board reversed the Initial Decision, and reinstated my client’s disability retirement annuity.

Here again, persistence pays, and persistence in pursuit of a disability claim is never a lost cause.

I am an attorney who specializes in representing Federal and Postal employees to obtain and retain disability retirement benefits. In pursuing one‘s entitlement to disability retirement benefits, one must always take the long-term perspective, and pursue that right with aggressiveness and persistence. It is an investment for one‘s future, and it is important to pursue your future investment aggressively, and to sustain your investment for a long time into the future.

For more information, contact me in one of these ways:

• View my website at www.FederalDisabilityLawyer.com
• Email me at federal.lawyer@yahoo.com
• Call me at 1-800-990-7932

 

Sincerely,

Robert R. McGill, Esquire