OPM Disability Retirement: The Foundational Paradigm

Ultimately, Federal Disability Retirement is based upon the persuasive delineation of three primary elements:  A medical condition; impact of the medical condition upon one or more of the essential elements of one’s job; and an inability on the part of the agency to accommodate the resulting impact of the medical condition upon one’s inability to perform all of the essential elements of one’s job.

How one proceeds to “prove” the case; what “kind” of evidence one needs to provide; the qualitative nature of the proof to be submitted; the quantity and volume of the type of evidentiary submissions to be included; these are determined by necessity based upon the nature of the medical condition itself.

Thus, some medical conditions may require merely a few pages; others, extensive supporting documentation, including treatment notes, diagnostic test results, explanatory clinical encounters and narratives which show a history of treatment-resistant modalities of medical applications as well as fulfillment of such extensive attempts which validate that the patient/applicant is not a “malingerer”, but rather exhibits symptoms which defy traditional approaches both for diagnoses and treatment.

It is always upon the first of the three elements identified which forms the foundational basis of a Federal Disability Retirement application; the sequential nexus of the two following almost creates itself, like the phoenix arising from the ashes, only in this case, from the debilitating medical condition from which one suffers.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Government Employees: Extensive Evidence

When first encountering the vastness of the sea, the young child pointed to it and said to his father with a breathless sense of wonderment and awe.  “It’s like a big swimming pool,” the child said.  “It won’t taste like one, though.  And do you see the waves?”  The boy stood in silence.

The mystery of the world, its infinite puzzlement, in contrast to man’s vain attempt to artificially recreate a semblance of its beauty, revealed itself to the child’s uncorrupted eyes.  Only a child whose first encounter with creation could see the true nature of being; the rest of us, compromised by age, cynicism and self-indulgence, would forever be blind to its breathless scope of beauty.

Such a slice of life story is meant to illustrate the distinction between substantive extensiveness, and a smaller version thereof, in preparing, formulating and filing for Federal Disability Retirement benefits under FERS or CSRS, from the U.S. Office of Personnel Management.  Volume of evidence (i.e., likened to “the ocean”) can be persuasive; yet, if it is merely an elaborate pool, then lack of substance may undermine its own efficacy.  On the other hand, a short but “to-the-point” medical report may be very effective, precisely because it is exactly what it was meant to be:  without much fluff, the doctor is unequivocal in his or her medical opinion.

The point throughout is that there is never a science in the compilation of proof in formulating an effective Federal Disability Retirement application.  Or, to put it another way:  don’t try to recreate something which cannot be copied; sometimes, the evidence is what it is, and how one presents the evidence will make all the difference.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Focusing upon the Bridge

In preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS, the multitude of aspects in preparing the application will often lend itself to detracting and distracting from the primary elements of an effective application and presentation.

Thus, worries about what the Supervisor will or will not say; whether the Agency will mis-characterize a supposed “good deed” they performed by declaring it to be an “accommodation”, with the danger that such declaration and characterization will be accepted by the Clerk at the Office of Personnel Management as true, etc. — all of these take away from the essence of creating that important bridge between one’s medical conditions and the essential elements of one’s positional duties.

Because the vast majority of denials issued by the Office of Personnel Management are based upon “insufficient medical documentation”, an undue focus upon other elements of a Federal Disability Retirement application would not be an intelligent utilization of one’s time and effort.

While OPM will certainly argue that the Agency has “accommodated” the Federal or Postal employee (and use that term improperly 9 times out of 10); and while OPM will point to elements in a Supervisor’s Statement as a further basis for a denial; each such supplemental argument by the Office of Personnel Management is nevertheless based upon the centrality of a primary argument, in most cases:  Insufficient Medical Documentation.

As such, it is prudent to focus one’s efforts upon the primary basis which provides the foundation for an effective Federal Disability Retirement application:  The bridge between one’s medical conditions, and the essential elements of one’s job.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Agency Actions and the Bruner Presumption

Agency actions separating a Federal or Postal employee from Federal Service often contain language which comes close to allowing for a Federal or Postal employee to assert the “Bruner Presumption” (that legal presumption which essentially states that the declaration and admission by the Agency triggers a legal presumption that a Federal or Postal employee is entitled to, by a matter of law, to Federal Disability Retirement benefits under FERS or CSRS), but not close enough.  

Such language will instead be couched in references to medical documentation which has been previously reviewed by the Agency; will embrace an acknowledgement that the Federal or Postal employee has a “medical condition”; and will sometimes even entertain verbiage evincing sympathy for the Federal or Postal Worker’s “situation” — but still will base the removal upon other considerations, such as “excessive absences”, “failure to maintain a regular work schedule”, etc.  

The question ultimately then becomes:  Is it important, leaving aside relevance, to fight the agency to amend or otherwise re-characterize the original proposal to remove, in order to obtain the Bruner Presumption?  

The Bruner Presumption is a legal mechanism which gains greater weight and importance when a Federal Disability Retirement application has been denied twice by the Office of Personnel Management (both at the Initial Stage of the process, than at the Reconsideration Stage), and one therefore finds one’s self before an Administrative Judge at the Merit Systems Protection Board.  But such appearance before the MSPB presumably means that there are other problems with a case — most often, insufficient medical documentation.  

The Bruner Presumption aside, the Federal or Postal employee must still prove, by a preponderance of the evidence, one’s case, by submitting sufficient medical documentation.  The Bruner Presumption is simply that “extra” ingredient that may be helpful if all other factors have been met in proving a Federal Disability Retirement case.

While helpful, it is not a certainty for an approval.  While better to have than not, one must still prove one’s case.  While triggered most effectively at the MSPB, a less-than-Bruner-trigger can still be argued at all stages of the process.  Just some thoughts.

Sincerely,

Robert R. McGill, Esquire

Federal and Postal Disability Retirement: Sufficiency of Medical Evidence

In meeting the eligibility criteria for Federal Disability Retirement benefits under FERS or CSRS, one must obtain the proper medical documentation, meeting a “preponderance of the evidence” burden of proof, such that it is more likely than not that you are entitled to Federal Employee Disability Retirement benefits.  

Whether a medical report and supporting documentation satisfies the eligibility criteria is based upon the subjective interpretation of the evidence presented.  By “subjective” is meant the following:  The reviewing Claims Representative at the Office of Personnel Management, while allegedly applying a 7-part legal criteria in making a determination of eligibility for each FERS or CSRS Federal Disability Retirement application, must nevertheless make an interpretive determination based upon the sufficiency of the medical evidence, and taking into account all other evidence.  

Indeed, often the interpretation of the statutory meaning which governs all Federal Disability Retirement applications is misunderstood and misinterpreted by OPM.  That being the case, how can one expect that OPM will “get it right” when reviewing and interpreting complex medical documentation?  For example, OPM will often cite as necessary that the medical evidence was not “compelling” enough; or, that the medical evidence presented did not show that it warranted the applicant’s “total exclusion from the workplace” — despite the fact that neither of these standards are required by law.  

The sufficiency of the medical documentation is the linchpin of a Federal Disability Retirement application.  As such, it must be prepared by the treating doctor by pulling together a compendium of multiple factors.  While it need not be compelling, one thing is for certain:  quantity versus quality will not meet the sufficiency test, and it is always better to have one excellent medical report, than numerous mediocre ones.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Workers: The Quantitative Approach

The problem with submitting a Federal Disability Retirement application under FERS or CSRS based upon the “quantitative approach” (submitting a voluminous medical file which, by the sheer weight, extent and thickness of the file, reveals the severity of the multiple medical conditions) is that it often fails to provide the proper bridge between the particular medical condition a Federal or Postal employee suffers from, and the impact upon the essential elements of one’s job.

Certainly, medical records, notes, diagnostic test results, etc., can provide a narrative delineation of one’s continuing medical conditions — but the question becomes, a narrative to what end?  The Office of Personnel Management will often review a large stack of medical documentation and simply conclude that there has been insufficient medical documentation, and further, that the medical documentation submitted fails to show that such conditions are severe enough to prevent one from perform one or more of the essential elements of one’s job. That is because the mere existence of a medical condition — no matter how extensive such medical conditions have required in terms of hospitalizations, testing, surgical or other procedures, etc. — is not enough to satisfy, by a preponderance of the evidence, the criteria applicable for eligibility for Federal Disability Retirement benefits under FERS or CSRS.  

Remember, always use the golden rule:  quality over quantity.  And in a Federal Disability Retirement application under FERS or CSRS, quality means the bridging of that conceptual gap between the medical condition, and the essential elements of one’s job.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: The "Process" at the Reconsideration Stage

It is important to understand that the “process” of filing for Federal Disability Retirement, when it comes to the Second, or “Reconsideration” Stage, encompasses two factual prisms:  (1)  The application has now been denied (obviously, and for whatever reason — most likely because of “insufficient medical evidence”) and (2) it is the stage in the process prior to an appeal to the Merit Systems Protection Board. 

This dual prism of the stage, while self-evident, is important to keep in mind, because it requires a duality of duties:  A.  It requires (for the Disability Retirement Applicant) a duty to show something beyond what has already been shown, while B.  It requires the Office of Personnel Management to be careful in this “process” of review, because if OPM makes a mistake at this stage, then the likelihood is great that they will be required to expend their limited resources to defend a disability retirement case before an Administrative Judge, and if it becomes obvious that the case should have been decided favorably at the Second Stage, it reflects negatively upon the Agency.  OPM is an agency made up of people (obviously); as such, just as “people” don’t like to look foolish, OPM as an Agency made up of people, does not like to look “badly” or “foolish”.  This duality of factual prisms is important to understand when entering into the Second, Reconsideration Stage of the “process”.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: The First Denial

One should not be overly panicked when the Office of Personnel Management denies a disability retirement application at the initial stage of the process.  Certainly, the denial needs to be taken seriously; the basis for the denial (which is often couched in confusing terms, based upon conflicting — almost contradictory — assertions and claims) must be identified and addressed; additional medical documentation may be needed; the proper legal authorities must be cited.

 To put it bluntly:  while it is almost always a good idea to prepare, present, and file a Federal Disability Retirement application with the assistance, guidance and counsel of an attorney, it is essential that an OPM disability retirement denial be rebutted by an attorney who is familiar with the process, the laws, and the compelling arguments necessary in answering the reasons as stated in the “Discussion” section of OPM’s denial letter.  To panic is merely to waste time; to prepare is the wise course; to map out a cogent plan on how to win at the Reconsideration Stage — and, if necessary, the next stage of appeal, the Merit Systems Protection Board — is the wisest approach.  As Easter is a time of renewal, and Spring is now upon us, during the next few weeks, I will be “going back to basics” and reviewing  the process, the law, and the methodology of effectively applying to obtain Federal Disability Retirement benefits for FERS & CSRS employees.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: Reasonable Accommodation by the Agency

Often, aside from having submitted insufficient medical documentation to support a Federal Disability retirement application, the Office of Personnel Management will deny a case based upon a statement submitted by the Supervisor, normally on SF 3112B (aptly entitled, “Supervisor’s Statement”).  Now, in preparing a Federal Disability Retirement application, I rarely worry about what will be on a Supervisor’s Statement, primarily because the applicant rarely has any control over the contents of the statement, anyway, and therefore to focus upon that which one has little or no control over, is simply a waste of time.  Instead, I focus upon obtaining an overwhelmingly convincing medical narrative report from the doctor, which then essentially makes the Supervisor’s Statement — if it is viewed somewhat as “negative evidence” by the Office of Personnel Management — a moot and irrelevant point of contention.  More often than not, when the Office of Personnel Management refers to the Supervisor’s Statement as revealing some basis for denying a disability retirement application, I find that OPM has either mis-read the import of the statement, or has selectively misquoted from the Supervisor’s Statement.  Remember that the law requires that the Agency provide a “reasonable accommodation”; more often than not, what the Supervisor or the Agency has provided, is neither “reasonable”, nor an “accommodation” under the law.  In any event, whether by misquote, unfair and selective reasoning, misreading, “unreasonable”, or not an “accommodation” at all, I rarely find that the Supervisor’s Statement is helpful or unhelpful; and, certainly, I have never found that a Supervisor’s Statement contains any substance which would or should be the basis of a denial from the Office of Personnel Management.

Sincerely,

Robert R. McGill, Esquire

Federal Disability Retirement & the Reconsideration Process

In the process of applying for Federal Disability retirement under FERS or CSRS, it is the “hope and wish” of each applicant that it will smoothly sail through at the initial stage of the application. However, the reality of the process is that a certain percentage of applications get denied at the initial stage (Stage 1 of the process). It is both discouraging and befuddling to receive a letter from the Office of Personnel Management informing you that your disability retirement application has been “denied”.

You are now required to Request Reconsideration of your case within thirty (30) days of the date of denial, and you must submit additional medical evidence or other supporting documentation within 30 days of requesting such reconsideration (Stage II of the process). It is, indeed, a time of disappointment to receive a denial. It is all the more so when it is unclear as to the basis for the denial. Often, a denial letter will refer to the medical evidence without much commentary beyond acknowledging the submission of a medical report, then in the last paragraph, simply make a declarative statement that the medical evidence submitted “was insufficient” to show that you are disabled. Or, more often than not, the OPM Benefits Specialist will actually mis-state the law by claiming that you have “not shown that you are so disabled as to keep you from the workplace” (no such legal standard is required under disability retirement rules, regulations or case-law).

Whatever the reasons given, it is both discouraging and disheartening to receive a denial letter from OPM. However, it is important to calmly, systematically, and with pinpoint focus reply to the letter of denial — even if it doesn’t seem to make any sense. This is done most effectively by using all of the tools required in persuading eligibility and entitlement to disability retirement benefits: the law; the medical report; the medical records; rational and legal arguments –in short, the “nexus” needed to win.

Sincerely,

Robert R. McGill, Esquire