Medical Retirement from the Office of Personnel Management: Legal Criteria

There is “The Law” — the originating, statutory authority which is passed by Congress — then, the compendium of the entirety of the legal arena, which includes decisions handed down by Administrative and Federal Judges, which comprise the expanding and evolving interpretation, clarification and extension of “The Law”.  

Unfortunately, in making its decision on an Application for Federal Disability Retirement benefits under FERS or CSRS, the Office of Personnel Management constrains itself (and its knowledge of the law) to a template based upon a “7-part criteria” which is extrapolated from the Code of Federal Regulations.  

This 7-part criteria is a simplistic and misleading application of the law.  It is not so much that it is an “error” on the part of the Office of Personnel Management to apply such a criteria; rather, it is that, in evaluating and determining the sufficiency, viability, and meeting of the standard of proof of “preponderance of the evidence” of a Federal Disability Retirement application under FERS or CSRS, it simply does not go far enough.  Because the 7-part criteria fails to include the interpretive evolution of the entirety of the laws governing Federal Disability Retirement, it fails by excluding many Federal Disability Retirement applications which are based upon legal criteria which fall outside of the delimited circumference and parameters of what OPM has set forth. 

In short, they are “behind the times” in many instances, and so when a denial is based upon a misapplied criteria, it is important to point out to OPM that X law applies in particular case Y — where “X” is outside of the scope or knowledge of the Office of Personnel Management.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS disability retirement: The Applicant’s Methodology

OPM’s methodology is important to understand in preparing a Federal Disability Retirement application. Such understanding of the methodology, however, must be for a singular purpose: to refine the methodology of the applicant in preparing a disability retirement application. Thus, lessons learned must be lessons applied. An applicant must not be overly general in listing and describing the medical conditions.

The list of medical conditions should be in the order of their severity. The list should not be a “laundry list”, but each medical condition should clearly be significant, to the point where a “nexus” can be described between the particular medical condition and one of the essential elements of one’s job.

Finally, an applicant should not overstate the severity of the medical condition described; rather, the supporting medical documentation should support the claims of the applicant in every detail, in every essential respect, and in every significant aspect. The applicant’s statement must have integrity, and must accurately reflect the truth of the applicant’s medical condition. If this is done properly, one’s application for disability retirement should be approved at the first stage of the process.

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

Recurring Issues of Disability Accommodation, Light & Limited Duty, and the Form Filling of the OPM SF 3112D PDF File

The issue of Agency Accommodations — whether or not an agency can truly “accommodate” an individual; what constitutes a legal accommodation as opposed to temporary light-duty arrangements which do not constitute legally viable accommodations under the standards as expressed in Bracey v. OPM and other cases — keeps coming up in the form of questions and concerns.

Let me just state a few thoughts: First, obviously, the best scenario is if the Agency checks off block 4(a) of SF 3112D, acknowledging that the “medical evidence presented to the agency shows that accommodation is not possible due to the severity of the medical condition and the physical requirements of the position.” Second, however, even if the Agency does not check off 4(a), it is not necessarily a problem, or even a valid concern. Agency Human Resources personnel are notoriously ignorant of the current case-law, and often mistake ad-hoc temporary assignments as constituting an “accommodation”, when in fact they represent no such standard or level of acceptability in disability retirement law. Finally, it is always mindful to remember that disability retirement is a medical issue, not one which is determined by non-medical personnel, and that is why it is important to focus first and foremost upon obtaining a legally sufficient medical narrative report.

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

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

FERS Disability Retirement & SSA Awards

When filing for FERS Disability Retirement, one is required to file for SSA disability at some point in the process. Some Human Resources offices have declared that it must be filed prior to OPM’s acceptance of a disability retirement application; this is not true. A receipt showing that SSA has been filed can be forwarded to OPM at any time — even after approval. In the unlikely event that the SSA filing is approved prior to the FERS disability retirement being approved, it is important for the applicant to send to OPM a copy of the award notice, because under Trevan v. OPM, the Office of Personnel Management is required to consider the award of SSA disability, together with other medical documentation, in reviewing a disability retirement application.

There are other steps that need to be taken, of course, to ensure that OPM considers such an SSA award properly and in accordance with the holding in Trevan; and, in most cases, of course, it will not be an issue, because the majority of disability retirement applicants will not qualify for SSA disability; rather, it is a formality that must be satsified, simply because the law requires it.

Sincerely,

Robert R. McGill, Esquire