Federal Disability Retirement: Quantifying Quality & Qualitative Quantity

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 make discretionary decisions concerning multiple aspects of a Federal Disability Retirement application — including the volume, extent, nature, and quality of the medical documentation to be submitted.

Because it is the Applicant (the Federal or Postal employee who is submitting the application) who has the “burden of proof” — that burden which states that by a preponderance of the evidence, one’s Federal Disability Retirement application is more likely to be so than not so — it is therefore up to the Applicant to make determinations as to the quality and quantity of the medical documentation and any other relevant attachments.

Qualitative sufficiency is often a difficult measure to determine; quantitative significance is equally difficult — as in, how much is enough? On the one hand, to submit a thousand pages of medical notes, reports, etc., would probably be “too much”.  But a case which only includes 5 pages of medical reports and notes, while seemingly “too little”, can be more than sufficient if the quality of the records and reports is indisputable and irrefutable in determining that a Federal or Postal employee is no longer able to perform one or more of the essential elements of one’s job.

Ultimately, the discretionary decision will come down to a matter of experience — for it is based upon prior experience that one can make better decisions for the future.  To that extent, to be inrepresented in attempting to obtain Federal Disability Retirement benefits is obviously a disadvantage, because an unexperienced Applicant is merely entering into the arena of Federal Disability Retirement law based upon a “hit or miss” history of inexperience.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Additional Supporting Evidence

In preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management under FERS, there is nothing to preclude one from attaching multiple supporting documentation in proving one’s eligibility for Federal Medical Retirement benefits.

In doing so, however, it is appropriate to keep in mind that the conceptual paradigm of “supporting” should be just that — it must be to assist, help, or otherwise enhance such evidence which constitutes the central component of one’s Federal or Postal Disability Retirement application.

Thus, “supporting” should not be the primary basis of one’s evidence, but rather, that which further enlightens and advances the primary documentary evidence.  For example, statements from co-workers, photographs, and similar supporting evidence can be provided to OPM, but only if –and as — it enhances the primary documentation, which should be comprised of medical documentation from treating doctors, specialists, referral consultative medical providers, etc.  Even ancillary supporting documentation — SSDI approvals, VA assignation of disability ratings, OWCP acceptance, OWCP second-opinion doctor’s reports, etc — should be viewed as “supporting”.

It is important, as an aside, to recognize that the OPM Case Worker does not, and will not, expend hours upon hours reviewing every piece of document one submits, and therefore it is important to streamline and provide an efficient, effective paper presentation.

Think about it this way as a guiding principle:  If you approach a file which is an inch thick, or one which is 8 inches thick, which do you tackle on a Friday afternoon?

Sincerely,

Robert R. McGill, Esquire

 

Federal Employee Disability Retirement: Discretionary Decisions

In preparing, formulating and filing for Federal Disability Retirement benefits under FERS or CSRS, there are obviously the “basics” which one must submit, in order to meet the legal standard of proof of preponderance of the evidence.  

Thus, submitting “adequate” medical documentation which formulates a nexus between the medical condition upon which the Federal Disability Retirement application is based, and the essential elements of one’s job; writing the descriptive narrative to complete the Applicant’s Statement of Disability (SF 3112A), and filling out the other standard forms in order to meet the minimum requirements, are deemed “non-discretionary”, in that one does not have the choice of filing such paperwork  — it is a requirement.  

However, certain other documentation can be designated and categorized as “discretionary” —  whether to include certain medical conditions, and therefore medical documentation which bears upon the particular medical condition; whether to include paperwork from one’s OWCP, Department of Labor filing; Veteran’s Administration ratings, findings, medical documentation; Social Security Disability paperwork; additional statements from co-workers; Private Disability Insurance paperwork, etc.  

“Discretion” implies freedom to act or not act, but the problem will often arise, “In what context”?  Discretion is a wonderful, liberating position to be in; acting effectively in a discretionary manner requires research, and knowing the relevant criteria to apply in making a proper decision; and an understanding of the laws governing Federal Disability Retirement in making the “right” discretionary decision.  

Using discretion in making discretionary decisions is the key to obtaining a positive discretionary determination from the Office of Personnel Management.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement Filing

In filing a Federal Disability Retirement application under FERS or CSRS, it is important to never overlook the obvious.  One of the “obvious” points is this:  If the document sent to the Office of Personnel Management never reaches them, it does no good.  It is therefore important to make sure that all documents get there.

Normally, it is good practice to perform some “follow-up” actions — to send the document by fax, then by regular mail or express mail (my preference), to help ensure that the document arrives at OPM.  A follow-up telephone call is often a good idea, but more importantly, receiving and keeping a record of the transaction of sending the document is what is vitally important.  For, if it later turns out that OPM never received a particular document, or states that they never received it, having a record of sending the document will be important in establishing the right to have it reviewed at a later date, for consideration in having one’s Federal Disability Retirement application under either FERS or CSRS approved.

Remember the obvious:  If you don’t file it on time, or file it at all, you can’t argue the substance of that which was filed.  Having a record of the filing is just as important as filing it, because filing it without a record can end up with one’s hands seemingly left in an empty pocket.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: “The Grab-bag”, “Volume” and the “Last Minute” Case

Procrastination leads to filing a Federal Disability Retirement application under FERS or CSRS at the last minute, which leads one to simply attach a volume of medical documentation and list a grab-bag of medical conditions. 

Sometimes, such an approach is thought to be the only way of preparing, formulating, and filing a Federal Disability Retirement application, especially when there is little or no time left in which to meet the statutory deadline for filing (a Federal or Postal employee must file within 1 year of being separated from Federal Service).  It may well be the only way to file, given that a Federal or Postal employee has only days left to submit the Federal Disability Retirement application. 

The fact is, one can only argue the merits of a case if, and only if, one has met the Statute of Limitations; if one fails to file in a timely manner, then there is simply no opportunity at all to argue the substantive basis for the Federal Disability Retirement application.  Yet, even in “Last Minute” cases, it is important to pause and attempt to streamline a case.  Why?  Because once a case has been filed, and the Statute of Limitations has passed, a Federal or Postal employee is unable to change or otherwise amend the stated and identified medical conditions, as listed on Standard Form 3112A. 

As such, even at the last minute, the grab-bag volume case should be — and can be — prepared and formulated with some thought.  In the end, it will serve the Federal or Postal employee who is filing for OPM Disability Retirement benefits under FERS or CSRS, well.

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 Proper Approach

Some believe that, when formulating and compiling a disability retirement application, that quantity of supporting documentation will win the day — all medical reports, records, statements from friends, family, co-workers, etc.  Sometimes, however, it is better to refrain from providing everything all at once; for, if a determination is made that there is sufficient documentation to prevail in a disability retirement application, it is sometimes the wiser course to restrain the natural inclination to bombard the Office of Personnel Management with all of the available documentation.  This is merely a strategic bit of advice; yet, in practical terms, inasmuch as every disability retirement case has the potential to be denied at the First Stage, and OPM would in that event be requesting additional supporting documentation, it is often a good idea to “withhold” and “keep back” a secondary source of supporting documentation — but only if the primary source of supporting documentation is confidently adequate to win at the first stage.  It is a discretionary method of approaching the compiling of data and documentation at the first stage — a decision which should be made with wise counsel.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: Trying it Without an Attorney

I get calls all the time by people who tell me that they thought their particular Federal Disability Retirement case was a “slam dunk”; that the medical documentation was there; that everything looked like it should be approved at the first level.  Then, there are people who tell me the same thing after the second, Reconsideration denial — that he or she thought it should definitely pass through.  But law, and especially administrative law before the Office of Personnel Management, has peculiarities beyond a surface, apparent reality.  There is a process and a methodology of obtaining disability retirement. Can a federal disability attorney guarantee the success of a disability retirement application?  No.  Does an individual applicant have a better chance with the assistance of an attorney who specializes in disability retirement law?  In most cases, yes.  Aren’t there applicants who file for disability retirement, without the assistance of an attorney, who are successful?  Yes.  Should everyone who files for disability retirement hire an attorney?  Not necessarily. 

When I speak to a client, I try and place him or her on a spectrum — and on one side of that spectrum is an individual who works at a very physical job, and who has such egregious physical medical disabilities; on the other side of the spectrum is an individual who suffers from Anxiety, who works in a sedentary administrative position (please don’t misunderstand — many people who suffer from anxiety fall into the “serious” side of the spectrum, and I am in no way attempting to minimize the psychiatric disability of Anxiety).  Most people, of course, fall somewhere in the middle.  Yes, I have told many people to go and file his or her disability retirement application without an attorney.  There are those cases which are so egregious, in terms of medical conditions, that I do not believe than an attorney is necessary.  However, such instances are rare.  Thus, to the question, Should everyone who files for Federal disability retirement under FERS & CSRS hire an attorney?  Not necessarily — but in most cases, yes.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement: The Packet

It is often a good idea to understand the process of Federal Disability retirement, in order to effectuate the best approach in winning a case. Remember, for instance, that in all likelihood, the Applicant will not be speaking with the Benefits Specialist at the Office of Personnel Management; even if you call them (and I never recommend calling too often, for there is the “irritant” factor, which may — thinking in purely pragmatic terms — result in a First Stage Denial of your case), you will be a faceless entity, and merely one case in a long line of cases for the OPM representative to review and decide upon.

Thus, the key is to prepare your packet well — to not place superfluous medical evidence into the pile; to not just make a complete copy of your medical records (OPM is not interested in medical records dating back more than 2 years, at most, and in most cases, should only go back 1 year) and send it in, hoping that the sheer thickness of your file will convince and persuade OPM that your case is “serious”; instead, to make your packet neat, essential, and to the point. Think about it in pragmatic terms: If you have a project to tackle, and you have a choice to tackle the one with little or no effort, or that “other one” that is a headache and will consume your entire day, which one entices you?

Sincerely,

Robert R. McGill, Esquire

Federal Disability Retirement: Getting the Bruner Presumption

If an individual is successful in persuading the Agency to remove him or her for his/her medical inability to perform the job, then the entitlement to what is coined as the “Bruner Presumption” is obtained. This is a great advantage, but one which is often misunderstood.

Remember that, under Bruner v. Office of Personnel Management, 996 F.2d 290 (Fed. Cir. 1993), when an individual is accorded the Bruner Presumption because of being removed for one’s medical inability to perform one’s job, this merely means that the “burden of production” shifts to the Office of Personnel Management, who must disprove your entitlement to disability retirement. However, the initial burden of proving by a preponderance of the evidence must still be met: i.e., one must still submit sufficient medical evidence to show that one was or is unable to perform the essential elements of one’s job.

This point should be obvious: for the Agency itself would never have separated an individual unless there was medical evidence to show that the individual could no longer perform the job. Thus, the very medical evidence which supported and justified the Agency’s action, is the same medical evidence which can be used to meet the initial burden of proof with OPM. The key is that, after this burden is met, then OPM has the harder burden of disproving that which the applicant has met. This is the great advantage of the Bruner Presumption.

Sincerely,
Robert R. McGill, Esquire