Medical Retirement for Federal Workers: The Gatekeeper II

The image of the gatekeeper is a powerful one — for it represents both sides of an analogously identical coin:  of an insurmountable impasse from the perspective of a third party, as well as the key to entry and deliverance when seen from the subjective “I”.

Stress is ultimately an inevitable and inherent part of any workplace environment.

Each of us represents a gatekeeper of sorts; what we allow to bother us, and what stresses we embrace and transport into the quietude of our own homes, will often depend upon each individual’s tolerance for the wide spectrum of ability to filter the stresses impacting our lives.

The U.S. Office of Personnel Management is also a gatekeeper of sorts.  The Agency empowered to make determinations on all Federal Disability Retirement applications can open the door to allowing for that crucial rehabilitative time in a person’s life, where granting of a Federal Disability Retirement application will secure one’s future and change the course of one’s life in order to avoid, avert and allow for an environment different from the stressful one which is impacting one’s health and well-being.

Ultimately, the gatekeeper him/herself — the Federal or Postal employee — must make the decision to open the door or not, and to take the next step in determining whether or not it is time to file for Federal Disability Retirement benefits, whether under FERS or CSRS.  That decision — whether to open the door or not — is often the single most important step of one’s life, career, and future course of actions.

In the end, we determine who we are, what we want in life, and when the right time is, in overcoming the insurmountable; for the gatekeeper has the hidden key to the passageway to the Khyber Pass of our own future.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement for Federal and USPS Workers: The Wait Seems Longer

For those waiting for their Federal Disability Retirement application under FERS or CSRS, pending before the Office of Personnel Management, the wait seems to be getting longer and longer.  Whether at the initial stage of the application process, or at the Reconsideration Stage, OPM is taking longer to make a decision on a pending application.  Everyone, of course, wants his or her application to be the next in line; and, indeed, it is all the more frustrating when an applicant is told that a decision will be made “within the next 2 weeks”, and after the 2-week period comes and passes, still no decision. 

What makes it worse is that, even after an approval, there seems to be longer delays in processing the approved application before payment is received.  Further, even after the “interim” payments begin, there appears to be a longer wait before a case is “finalized” for payment processing.  Each period of delay results in a ripple-effect throughout the system as a whole, and indeed, in these economic times of hardship, it  places an even greater burden upon those who need the financial benefit most — those who are disabled, and who rely upon the benefit of disability retirement payments for their very livelihood.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: The Coming Year

For all Federal and Postal employees who are considering, or may consider in the coming year, filing an application for Federal Disability Retirement benefits under FERS or CSRS with the U.S. Office of Personnel Management, I hope that this “continuing blog” has been helpful, and will continue to be helpful. 

In the coming year, I will attempt to stay on top of any changes in the current laws, including statutory changes (if any), any new developments handed down through opinions rendered by the U.S. Merit Systems Protection Board or the Federal Circuit Courts.  One’s future is what is at stake in making the all-important decision to file for Federal Disability Retirement benefits, and I will endeavor to remain informative, and provide you with a level of professionalism which all Federal and Postal employees deserve.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: OPM’s Specific Denial I

On those occasions when an OPM denial specifically (and correctly) identifies and asserts deficiencies in a disability retirement application, it is important to have a targeted response in addressing the denial.  The reason for such a targeted approach is for two primary reasons:  (1)  One should always address the alleged specific basis of OPM’s denial of a Federal disability retirement application, and (2) By specifically addressing and answering OPM’s specific basis for the denial, if the Office of Personnel Management denies the application a second time, and it is therefore appealed to the Merit Systems Protection Board, it is important to view the entire case of OPM as “unreasonable”.  In other words, it is important at the outset to “prejudice” the Administrative Judge as to the unreasonableness of the Office of Personnel Management. And there is absolutely nothing wrong with this — because the “prejudice” which the Judge may perceive is in fact based upon the truth of the matter:  OPM is indeed being unreasonable, and it is important for the Administrative Judge to see such unreasonableness.  It is important to be able to say to the Judge, Your Honor, do you see how we answered the basis of the denial — and yet, even after specifically addressing the basis of the denial, OPM still denied it?  What else can we do?  It is always important to prepare each step of the case not only for the “present” case, but also for the potential “next” case.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: The Affirmative Approach

The road which leads to one’s future financial security is irreversibly tied to the extent of how affirmatively one takes one’s future into one’s own hand (now, that was indeed a mouthful).  By this, I mean merely that, in preparing an application for Federal Disability Retirement, there are going to be all sorts of “outside forces” which pull you towards every different direction.  Friends will tell you one thing; your Agency will tell you something else; your coworkers will give you stories (both good and bad); your Human Resources Department may give you advice; ultimately, you must take an affirmative approach and make sure that your application is coherent, logically structured, and medically supported. 

By way of example, an Agency’s Human Resources Department will often insist that the Physician’s Statement, SF 3112C, is a “required” form.  It is not.  They will often give you the form with the return address of the Agency stamped in the upper blank box, for the medical report and records to be returned to the H.R. Department.  Upon receipt, the H.R. Department simply includes the medical documentation (without review or determination that it is helpful to your case), and forwards the packet to the Office of Personnel Management.  This would be the “non-affirmative” approach of doing things. 

To take the affirmative approach would be:  Make sure that the medical documentation you submit to OPM is the extent, type, and quality that you want to submit.  Remember:  the applicant has the burden of proof, by a preponderance of the evidence, to show that you are entitled to Federal Disability Retirement benefits.  Don’t let third parties (i.e., friends, coworkers, Agency, H.R. Department personnel, etc.) make the decisions for you.  Take the affirmative approach — either by yourself, or through your attorney.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Further Comment on Vanieken-Ryals

Vanieken-Ryals v. OPM, decided by the U.S. Court of Appeals for the Federal Circuit on November 26, 2007, has an interesting statement from the deciding Judge, which can be used as “firepower” for anyone who is attempting to obtain Federal Disability Retirement benefits (note of caution:  for lay non-attorneys, be careful in how you use it in trying to convince a lay, non-attorney OPM representative):  “In addition, neither the MSPB nor OPM discussed the content of Dr. [ ] or [ ] evidence in any meaningful way, which further demonstrates that it was not properly considered.  OPM, for example, resorted to a laundry list of “objective” tests and documents that the medical evidence did not contain rather than examining the evidence and evaluating what it did contain.”

Interpretation:  If OPM’s argument is to focus upon what is missing, they have violated their primary Agency/administrative responsibility — that of evaluating, in some “meaningful” manner, the medical evidence which was in fact submitted.  This can be used effectively for the Reconsideration Stage by diplomatically pointing out the error of OPM, and citing Vanieken-Ryals, and highlighting the relevant portions of the medical documentation previously submitted.

Sincerely,

Robert R. McGill, Esquire

Summary Legal Update for FERS & CSRS Disability Retirement

On my website, Federal Disability Retirement Lawyer, I give a more extensive explanation of a recent and important case impacting federal disability retirement applications, but I think that it is important for everyone filing, or contemplating filing, for disability retirement under FERS or CSRS, to be aware of the recent United States Court of Appeals case for the Federal Circuit, Vanieken-Ryals v. OPM, #2006-3260, decided on November 26, 2007, in which it was found that OPM’s adherence to the rule that they will refuse to “consider such medical evidence…for being ‘purely subjective’ is a critical legal error…and clearly prejudicial.”

Often, in cases involving cognitive impairment, psychiatric disabilities, disabilities involving diffuse and chronic pain, and those conditions such as Fibromyalgia, Chronic Fatigue, etc. the Federal Circuit Court in Vanieken-Ryals has essentially held that OPM’s adherence to “objective evidence” is “unsupported in the law, was arbitrary, capricious and contrary to law.”

The Judge therein stated that OPM must consider the medical evidence that is submitted, and cannot attack a medical condition unless there is a doubt as to the “credentials or veracity [of the doctor],” and this is especially true where the doctor has “utilized established diagnostic criteria and [is] consistent with ‘generally accepted professional standards’ ” of medical practice.

This is an important case for Federal disability retirement applicants to use when filing for psychiatric medical disabilities, and for those “hard to define” cases (again, e.g., Fibromyalgia, Chronic Fatigue Syndrome, etc.), because OPM will often declare as a basis for denial that the applicant lacked “objective medical evidence” or that there was no “objective diagnostic tests” showing the medical condition. This is, to use a very well-know legal term, now considered “baloney”. As long as the doctor has applied established diagnostic criteria and generally accepted professional standards, unless OPM can attack the credentials of the doctor, they must consider the medical evidence.

Sincerely,

Robert R. McGill, Esquire