Federal and Postal Disability Retirement: The Proper Balance

Meeting and arriving at the “proper balance” in any endeavor is an Aristotelian concept found in his Nichomachean Ethics, of achieving a median between any two extremes.  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 ascertain, then apply, this concept of a “middle” balance between providing too much information (which then includes much superfluous content and documentation which merely provides volume, but not qualitative evidence of one’s Federal Disability Retirement eligibility), and not enough to meet the legal criteria.

By appearance alone (and here, of course, the philosophical outlook and distinction between that which is merely “appearance” as opposed to “substance” applies beautifully), it is sometimes necessary to provide a certain level of volume of medical records in order to satisfy OPM that there is indeed “substance” to one’s medical claim.

It is an unfortunate anomaly that, while on the one hand OPM is looking for “relevant” information, and much of the office and treatment notes of a doctor merely contain passing and quick notations on treatment modalities, medication regimens prescribed, etc.; nevertheless, the appearance of office notes, regardless of their irrelevant nature and lack of substantive content, accompanying a qualitatively significant medical narrative report, often satisfies OPM’s request for “documentation” of a medical condition.  On the other hand, too great a volume of immaterial medical documentation which tends to show nothing, should be streamlined, if possible.  Meeting that Aristotelian “median” between providing too much and too little is something which is discretionary, but important to attain.

It is normally through experience of having handled a volume of cases that one can gain a sense of what the “proper balance” means, but for the particular Federal or Postal employee who is preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, such an endeavor is, and should be, the one and only time that such an encounter would be engaged in.

That, in and of itself, is a conundrum which can only be resolved by consulting someone who is knowledgeable in the area of Federal Disability Retirement law, and as knowledge of first principles is also an Aristotelian mandate, so consultation with those who are familiar with such first principles (or any principle which applies to OPM’s arbitrary approach, for that matter) should be a must for the Federal or Postal employee considering a Federal Disability Retirement application.

Sincerely,

Robert R. McGill, Esquire

Federal Employee Medical Retirement: Medical Records Alone

Medical records can provide valuable information, and as a tool in getting a Federal Disability Retirement application under FERS or CSRS approved, it should be selectively submitted.  Can it replace a medical narrative report from a treating doctor?  Normally, a narrative report from one’s treating doctor — whether a specialist, a family doctor, a psychiatrist, etc. — is invaluable in preparing, formulating, and submitting a Federal Disability Retirement application under FERS or CSRS.  The combination of the two, of course, is unequivocally the best-case scenario:  of a medical narrative report supported by, and in consonance with, the office notes, surgical notes, treatment notes, etc.

However, it is not impossible to get a Federal Disability Retirement application under FERS or CSRS approved based upon medical records alone.  If that is the only course of action left — with the alternative choices being of walking away without filing for Disability Retirement benefits — then a Federal Disability Retirement application based upon one’s medical records alone can be successfully argued, but it must be done with meticulous care, and squeezing every notation and attribution of annotations to their fullest relevance, extent and extrapolating significance.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Government Employees: The Medical Records

Federal Disability Retirement under FERS & CSRS is essentially “connecting the dots” between one’s medical conditions (whether singular or multiple) and the impact of the medical condition(s) upon one’s ability to perform all of the essential elements of one’s job.  The treatment records, also, are helpful in the matter of connecting the dots, as the Office of Personnel Management will often request a copy of the medical records — evidence of treatment over the years — in order to ascertain the extent of the medical conditions claimed.  

This can sometimes present a problem, when a Federal or Postal employee has switched doctors, has quietly endured the pain of the medical condition with little or no treatment over the years, or where the doctor fails to annotate any legible or detailed notes in his or her treatment notes.  Normally, however, there is a consistency of evidence between treatment/office notes and the medical narrative which the doctor prepared; or, between the diagnostic results and the clinical findings and conclusions of the treating doctor.  Where there is a lack of medical records “backing up” the narrative report of the doctor, often a Functional Capacity Evaluation or an “independent medical evaluation” by a referral doctor will help a case.  As always, there are ways to counter the problems which arise, in order to meet the eligibility criteria as proposed by the Office of Personnel Management in a Federal Disability Retirement case.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirements: Groundless Denials of FERS/CSRS Disability Retirement Applications

One would assume that when a disability retirement application has been reviewed by someone at the Office of Personnel Management, and a decision of denial has been rendered, that such a decision will — at a bare minimum — be based upon a legally sufficient ground. In other words, that the legal criteria asserted in the decision will be correctly delineated.

Unfortunately, that is too often not the case. In fact, many of the legal claims asserted by the Office of Personnel Management have no justification in law, and are exaggerated at best, and a mis-statement of the applicable laws, at worst. But for disability retirement applicants who are unrepresented, the individual may well read the decision, believe what the decision states, and become convinced that the burden is too onerous to overcome, and fail to request reconsideration in the case, discouraged that he or she will never be able to meet the legal burden imposed in the initial denial.

Thus, for instance, when an OPM denial letter states that there was “no evidence showing hallucinations, delusions or other symptoms of psychosis,” and therefore the disability retirement is denied, one might conclude: “Since I don’t have those conditions, I must not be qualified for disability retirement.” Wrong! Or, when OPM says: “There was no evidence of hospitalization or the need for such treatment,” one might become completely discouraged and say, “Oh, disability retirement requires that my medical condition is such that it requires hospitalization in order to qualify, and therefore I cannot qualify“. Wrong! Such overstated and exaggerated claims by the Office of Personnel Management are commonplace, and unnecessarily place a burden upon disability retirement applicants through mis-statements of the law. Never allow an OPM mis-statement of the law to persuade you to abandon your case; instead, seek competent legal counsel to explain what the law of disability retirement really is, and proceed from here.

Sincerely,

Robert R. McGill, Esquire

Common Mistakes in Filing for CSRS & FERS Disability Retirement III

Words are peculiar animals; they are meant to convey meanings through stringing together, creating conceptual models, images, descriptive thoughts. Thus, one would think that the greater quantity of words would lead to a greater level of thoughts conveyed, images created, etc. However, what often happens (a commond mistake found in unrepresented applicants who file for disability retirement under FERS & CSRS) is that there is a ‘fatigue factor’ by the reader: in this case, the reviewing person at the Office of Personnel Management. People often either overstate his or her medical disability, or tend to think that pages and pages of a stream-of-consciousness narrative about one’s medical conditions will persuade the reviewer of the seriousness of the medical condition. Neither are necessary. Let the medical condition itself speak to the seriousness. The applicant does not need to overstate it; and a voluminous narrative only points out and emphasizes a suspicion that there is some underlying reason as to why you feel the need to explain yourself so much. Use of words is a ‘balancing act’ — using the right words; explaining the right amount; creating the right string of thoughts and images. An effective disability retirement application must find the right balance of all of these elements.

Sincerely,

Robert R. McGill, Esquire

Common Mistakes in Filing for CSRS & FERS Disability Retirement II

Always emphasize quality over quantity of medical records & reports. A common mistake often made by unrepresented individuals is that he or she will ship off to the Office of Personnel Management a large packet of medical records, bills, appointment sheets, raw blood test results, etc. A potential applicant is always wise to try and look at it from OPM’s viewpoint: if you were a reviewer at OPM, which disability retirement application that is assigned to you would you look at on a Monday morning — the one that is 6-inches thick, or the one that is 1/2 inch thick? Further, untranslated raw test results rarely effectuate a positive response. Raw data that merely conveys numbers, unless interpreted by a physician as to the medical significance of such raw data, will not impress anyone at the Office of Personnel Management. It is the job of an attorney to use the tools of an attorney: effective and descriptive words, and to help the applicant to find the proper descriptive words to convey the serious medical conditions that he or she suffers from.

Sincerely, Robert R. McGill, Esquire

Common Mistakes in Filing for CSRS & FERS Disability Retirement

There are multiple mistakes often made when an unrepresented individual files for disability retirement under FERS & CSRS. One such common mistake is the very presentation of an application packet that is presented to the Office of Personnel Management.

Often, when an individual has a disability retirement application denied at the First Stage, and has asked me to represent him/her at the second, Reconsideration Stage, I find that what the individual did at the first stage was to put together the packet of medical records — often, a voluminous set breathtaking in its sheer quantity of pages — thinking that because he/she has serious medical issues, that the great quantity of medical records in itself will justify qualification of a disability retirement packet.

Volume of medical records rarely qualifies an individual for disability retirement. Instead, it must be remembered that eligibility and qualification for disability retirement benefits is determined by a set of legal criteria that must be met by a preponderance of the evidence, and it is up to the applicant and his/her legal representative to meet that burden of proof.

Sincerely,

Robert R. McGill, Esquire

OPM Decisions of Denial in FERS & CSRS Disability Retirement Case

There are two elements: competency/knowledge, on the one hand, and authority/power on the other. When the two come together, we then have the combination resulting in a reasoned decision. It is indisputable that an Agency has the authority and power to make administrative decisions. On the other hand, if the Agency makes a decision without the proper competency or knowledge, then it can become a problem.

In reviewing a denial letter from the Office of Personnel Management in disability retirement cases, what is most disturbing are the following: First, 90% of the denial letter is based upon a computer template. The references to dates, medical reports & records reviewed, etc., comprise the remainder of the 10%.

Now, that is not to complain that OPM should or must “reinvent the wheel” each time it makes a decision — indeed, the fact that much of the decision is boilerplate, template language is not that disturbing. What is, disturbing, however, is when — under the pretense of competency and knowledge, it makes blatant mis-statements of the law.

Some of the mis-statements are: “The medical documentation does not show that you are totally disabled from performing your job.” There is no requirement under the law that a person needs to be “totally disabled”. Or: “We are unable to make a determination because of the lack of objective medical evidence.” Medical evidence does not need to be “objective” as opposed to a doctor’s reasoned medical opinions. Or: “Fibromyalgia is a condition which waxes and wanes.” OPM is not a medical facility and has no business making medical determinations or declarations.

The authority and power of an Agency must always be used in the context of competency and knowledge, and the Office of Personnel Management must make its decisions based upon the prevailing case laws, statutes and regulations which govern it. It is the job of a disability retirement attorney to point out such misstatements of law.

Sincerely,

Robert R. McGill, Esquire